Obama Executive Action Weakens HIPAA

(courtesy sherpasoftware.com)

By Robert B. Young, MD (reprinted with permission from Doctors for Responsible Gun Ownership)

President Obama is now using executive actions to fill in certain “gun safety” gaps in our present hodgepodge of laws and regulations. One might wonder whether he is motivated not only by the possibility of “saving just one life” but also by the fact that most of the nation disagrees with him about the need for further gun control and about his right to rule by fiat . . .

DRGO works hard to cover the often discouraging intersection of health care and gun rights. This effort required watching in word-for-word, tear stained, excruciating detail the January 5 White House press conference and CNN’s January 7 Guns in America town hall from George Mason University.

It meant reading the President’s January 7 opinion piece in the New York Times“Guns Are Our Shared Responsibility” and all 56 pages of the federal Department of Health and Human Services Final Rule 45 CFR Part 164, Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule and the National Instant Criminal Background Check System (NICS), published January 6. We shoulder these unpleasant tasks so you don’t have to.

One outcome of the President’s announcement is great concern that physicians and mental health care providers will now be reporting everyone’s mental illness to the FBI, which runs the NICS. We all want to identify people who are prohibited from buying guns for good reason, but the prospect that anyone in emotional distress could be prohibited from legal gun ownership for life is reasonable cause for panic. It would devastate the privacy necessary to the trusting relationships that treatment requires.

Yet only a tiny fraction of violent perpetrators are found among the mentally ill, people who are far more likely to become victims than attackers.   Half of all Americans experience at least one episode of diagnosable psychiatric illness during their lifetimes. Prohibiting all of those would vastly restrict the number of Americans who could retain their constitutional right to keep and bear arms over time.

The fear of their guns being confiscated could also increase the chances that many in need of psychiatric treatment, and perhaps those at highest risk of violence, would avoid it. That would reverse the gains we’ve made during the past century in normalizing the reality of treatable psychiatric illnesses and undermining the stigma that had made second class citizens of those suffering. [For more on these subjects, see Violence and Mental Illness: Treatment is Good! ]

The good news is that this new HHS Rule does not mandate anything. It defines a very limited change to current confidentiality requirements.

As things are, anyone who has been committed involuntarily to a psychiatric facility or who has been determined by a court to be “mentally defective” (i.e., unable to be responsible for themselves due to mental illness) is supposed to be listed in the NICS as a prohibited person. This information should be tracked and reported by each state. For a variety of reasons, such as variations in state requirements and despite some federal incentives, this has not happened consistently. So there are holes to fill in this reporting.

The new rule amends HIPAA to “permit” (it does not require) those professionals who have the legal authority to adjudicate or to involuntarily commit patients, or agencies that otherwise lawfully collect such information, to make reports on their prohibited status to the FBI for the NICS. That generally means only courts, psychiatrists, and the directors of state and county mental health departments.

This rarely includes other physicians. It does not include the much greater numbers of other mental health treatment providers (psychologists, social workers, counselors, etc.). It limits the information strictly to demographic identification, without any diagnosis or clinical information. So to the extent this happens, it would just make it more likely that the identities of those who are supposed to be legally prohibited will be listed.

“To the extent this happens” is a big “if”. Physicians are historically the fiercest protectors of patient privacy, knowing the harm that can be done and embracing the guiding principle, primum non nocere (“first, do no harm”). It is not at all likely that psychiatrists or other physicians will care to provide such information routinely even though permitted to do so.

Along with medical ethics, HIPAA delineates in great detail under what conditions patient information can be communicated. There are very limited, emergency circumstances in which providers may have the duty to try to warn or protect others whom their client specifically threatens, but this has seldom caused obstacles to patients seeking or continuing treatment afterward. Whether firearms owners will selectively exclude themselves from voluntary treatment remains to be seen.

A much greater concern should be the absence of due process for all non-judicial additions to the NICS, as well as the lack of any routine means to be removed once on it. The same problems exist with the no-fly and terrorist watch lists; the listing by the Veterans Administration of veterans with PTSD or representative payees; and the potential for such policies to expand across the federal government (e.g., the Social Security Administration is currently considering applying the rule to Social Security recipients on disability or with representative payees).

None of these circumstances defines someone as impaired in the safe handling of firearms, let alone as any public danger. Yet it becomes the decision of bureaucrats, not courts, to deny these citizens their Second Amendment rights. They bear no accountability for applying these prohibitions, which are of indefinite duration.

For a (somewhat hopeful) example about the burden of seeking to get de-listed as prohibited, consider the story of Charles Tyler. Nearly 30 years after being committed for a situational depression relating to his wife deserting him, he discovered that he was denied the right to purchase a firearm. He’d had no further mental health issues and no criminal record, so there was no other reason to be classified as a prohibited person.

After a two-year legal odyssey, the Sixth U.S. Circuit Court of Appeals in Cincinnati determined that the federal law defining that prohibition is unconstitutional as applied to his circumstances.   No one whose civil rights have been wrongfully revoked should have to go to such cost and effort to get their rights restored.

It is maddening that our laws and this administration’s agenda can so readily and arbitrarily consign citizens to living without the full protection of their rights as Americans. There is no excuse for installing societal protections that, while important, leave no way out for individuals unfairly trapped by them.

Such rules are blind to the harsh reality they impose on people. Cheryl Todd’s recent thoughts on emotional immaturity, distorted perspective, inflexibility and narcissism of people (and hierarchies) operating in “functional fixedness” may shed some light.

During the Guns in America town hall, the President showed a telling pattern. When responding to questioners who were supportive of his agenda, he was animated and focused on them. When replying to people who raised criticisms, he was passive and less spontaneously empathic, and changed the subject. His eyes were downcast, and he couldn’t or wouldn’t meet their gaze for more than a moment.

This is defensive behavior. It may have to do with 7 years, or a lifetime, of isolation from mainstream America. It may have to do with having no one in his circle who would ever see these subjects differently or question his wisdom about them. It may have to do with his or his party’s mindset fearing guns and blaming all gun owners for the violence that some irresponsible, criminal, and distressed people do.

It could also indicate some shame, perhaps for his inability to answer the fair and just questions his gun policies raise for the majority of Americans. Perhaps even shame for vilifying the very people who were brave enough to confront him on his irrational, irrelevant and ineffective answers to the problem of violence in America.

President Obama’s executive actions, while thankfully seeming bounded by some late arriving sense of the limits of his lawful powers, are not Goldilocks solutions. They are too little and too much, too soft and too hard. They simply don’t fit at all.

——–

Robert B. Young, MD is a psychiatrist practicing in Pittsford, NY, an associate clinical professor at the University of Rochester School of Medicine, and a Distinguished Fellow of the American Psychiatric Association. 

comments

  1. avatar Cliff H says:

    While I understand, and to an extent applaud the efforts of Dr. Young and his organization to work within the system to protect their patients, just as I half-heartedly support the baby steps the NRA takes to work within the system to make some beneficial changes to a broken system, the bottom line is that nowhere in the 27 words of the Second Amendment to The Constitution of the United States of America is there ANY mention of the creation of a list of persons that the government has decided may not exercise their natural, civil and Constitutionally protected right to keep and bear arms.

    “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, SHALL NOT BE INFRINGED.” (Emphasis mine.)

    HIPPA be damned. The government has no Constitutional authority to tell any citizen that they may not exercise their RKBA. Allowing them even for a moment the delusion that they can decide a person’s mental state, temporary or permanent, diagnosed or not, treatable or not, gives the government the authority to revoke a natural right to self defense is a very dangerous and very slippery slope. I seem to recall just such authority was a common tactic in the Soviet Union for dealing harshly, and often with finality, with political dissidents. It has no place in the American system and must be opposed at every opportunity.

  2. avatar Ralph says:

    First of all, it’s HIPAA, not HIPPA (which I think is a female hippo). Second of all, HIPAA is one of the most stupid laws ever written, and that’s saying something.

    1. avatar Cliff H says:

      Sticky keys, Ralph, but thanks for the (humorous) correction.

    2. avatar DrVino says:

      HIPAA is the withered vestige of HillaryCare.

      Just think about that for a moment.

      1. avatar Ralph says:

        Bingo! Give that man a cigar.

    3. avatar Fred says:

      HIPAA, I’d tell you more, but I can’t because of HIPAA.

  3. avatar Mk10108 says:

    I’m 54 and urine flow is slowing up so I bite the bullet and while getting the prostrate check my doctor asks me about my guns. What corse of action do I take? Butt clinch his finger while tactically turning and combining a horizontal elbow throw or horse kick a dick punch? Perhaps the Marine ditty, this is my role this is my gun..ya da ya da…this is for fun.

    1. avatar Dr. No says:

      Just pretend it’s Hillary back there giving the exam. The flow will increase and the doc will lose a finger as various parts of the body react appropriately.

      1. avatar Redfoot says:

        Awesome!

    2. avatar Ralph says:

      @Mk10108, I’m 68 and my prostate is the size of a cabbage. So when I met my urologist for the first time, we chatted about this and that and the subject of guns came up because I’m an instructor. Doc asks me, “so you have a gun?”

      “Yes, many,” I said

      “And you’re a member of the NRA?”

      “Yes,” I answered, “I certainly am.”

      So Doc says, “I agree with the NRA. If somebody wants a gun, they should be able to have it.”

      And I said, “Now I trust you to stick your finger up my ass.”

      1. avatar Alex waits says:

        I laughed my ass off on that one

  4. avatar IYearnforanARinCali says:

    The Pres didn’t show any shame as he half-spoke his meek replies to the Town Hall Farce on Ghunz, he acted flippantly as he gave no answers of substance. If he showed any shame it was because he didn’t oversee the whole sale dismantling of the 2nd, but if Hilly wins, then that will come.

    Everyday is a new blight from this White House, like choppy seas.

  5. avatar NotTooBad says:

    Wasn’t Robert Young the guy who played Marcus Welby?

  6. avatar Geoff PR says:

    “Half of all Americans experience at least one episode of diagnosable psychiatric illness during their lifetimes. Prohibiting all of those would vastly restrict the number of Americans who could retain their constitutional right to keep and bear arms over time.”

    That’s exactly what that law was designed to do.

    Provide the framework to add as many citizens as possible to the ‘Prohibited’ list.

    1. avatar uncommon_sense says:

      ^ This !!!!!!!!!!!!!!!!!!!!!!!!

      Geoff PR beat me to it. I was going to post almost the exact same response.

      As I mentioned in another recent comment, this isn’t a bug, it is a feature!

  7. avatar Bastard says:

    Any doctor that asks anyone in my familly about guns is fired on the spot.

    You want to see a funny reaction, fire a doctor. Their ego can’t handle it. Done it twice now.

    1. avatar 'liljoe says:

      Any patient who wants to fire me is welcome to do so, I would want my family members to be comfortable with their doctor, and I would want the same with my patients. I’m sorry you have met egotistical doctors (all two of them) and have been able to formulate your opinion on the rest of us based on your vast experience.

      1. avatar gipper says:

        So do you ask your patients if they own guns?

        1. avatar 'liljoe says:

          Nope, every single one of them has ‘no’ checked off on my EMR for that question automatically… Darn boating accidents are epidemic around these parts.

          Anyone who thinks that global data collection can’t or won’t occur with the spread of electronic medical records doesn’t know our government, law enforcement agencies, or history very well. They can only collect data that is entered, that is the weak point of the system and the time to exploit it would be now, not once they come collecting.

  8. avatar Roger Cain says:

    If some wacko doctor ask you about guns or your stance on guns … just reply with “FBHO”.
    Anyone with half a brain will know what you’re saying.

    1. avatar gipper says:

      Roger,
      Hmmmmm, It’s really late tonight (as I write this) and you had me pondering for (just) a moment. My brain must be half working, I GOT IT! (grin)

  9. avatar ATTAGReader says:

    Meanwhile, today’s AP news feed had an article about yet another spree shooter, this one a drifter who shot up a movie theater in Lafayette, LA last year before killing himself. In 2008 his family brought him to the attention of mental health and legal authorities for being, well, crazy. Judge refused to order involuntary commitment, so some years later and crazier, he goes to a pawn shop, passes his NICS, purchases a .40 caliber handgun, and goes off and does his thing. How many times do we have to hear the same story? As others have said, enforce the current laws and you might find that the “gun violence” problem goes away (assuming that is your goal).

    1. avatar Ralph says:

      Washington doesn’t want the “gun violence” problem to go away. It wants us to go away.

      1. avatar IYearnforanARinCali says:

        Exactly right, at every turn this is the response of the anti-funners (intentional). Infringe until the headache of being a firearm owner grows so great that no one wants to own them anymore.

        Fug dat.

  10. avatar John says:

    Meanwhile here in Illinois, the statute for the concealed carry license overrides HIPAA:

    “a waiver of the applicant’s privacy and confidentiality rights and privileges under ALL federal and state laws, including those limiting access to juvenile court, criminal justice, psychological, or psychiatric records or records relating to any institutionalization of the applicant…”

    Most NRA members in IL are retarded hicks who have never left the county where their trailers are located, and are unable to read beyond a G.E.D. level, so they don’t understand that the IL State Police can snoop into medical, banking, and tax records, retain them forever, and share with the feds.

    Thank you NRA contract lobbyist Donald Todd Vandermyde! More wins from the traitor who put Duty to Inform in Rep. Brandon Phelps carry bill. Where would we be in IL if Chris Cox & Chuck Cunningham at NRA-ILA did not actually pay money to this rat?

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