Executive order on background checks

[Frank Ettin]

Some more off-topic posts have disappeared. Once again, (from post 48):

...The subject is two Notices of Proposed Rule Making (NPRM) relating to reporting of certain mental health information for NICS use and the definition of the sorts of mental health incidents which can disqualify one from possession of a gun under the GCA68. These NPRM are the first step in the adoption of regulations by DOJ and DHHS and involve proposed amendments to existing regulations under the GCA68 and HIPAA.

Links to those NPRMs are in posts 22 and 39.

We are discussing those NPRMs and the proposed regulations -- what they say, what they mean, how they might apply, what might be acceptable about them and what might be wrong with them....

 

[Matno]

As a physician, I think that the biggest concern here should be that the federal government has ANY access to private medical information. It's done in the name of "public health" or "safety," but the underlying intentions are more nefarious than we like to admit. I'd be willing to bet that there are a LOT of members of this forum whose wives have been asked by a pediatrician whether they have guns in the house. Those records are now in the possession of the federal government, as run by the IRS. With the new "executive order" it's just another step on the path toward total gun confiscation through back door channels. They will use any excuse they can to promote evil.

 

[Torian]

"The proposed rule will not change the fact that seeking help for mental health problems or getting treatment does not make someone legally prohibited from having a firearm," the statement said.

Ya right! Anything this admin does will be an attempt to chip away at the 2nd amendment. I foresee individuals forgoing the needed treatment due to the fear of being labeled a "potentially dangerous" person. There already is a stigma with mental health and all this does is add more to it.

Exactly.

Indeed it is one thing to say what it will or will not do...an entirely another thing to see its actual effects after implementation. The trust just isn't there anymore with this administration when it comes to the RKBA. POTUS showed his true colors late last year after a couple mass of shootings. Yes, I realize we are not talking about an Executive Action...but the President can and does influence policy and decision-making within all these agencies. We are kidding ourselves if we think he wasn't involved in pushing for this.

There is a very small segment of the supposed "mentally ill" who should not own firearms. Removing a Constitutional right is something that should be taken very seriously, and only done on a case-by-case basis after a review from qualified medical and legal professionals. As a combat-wounded veteran myself, I worry for some of my brothers and sisters in uniform who may be seeking treatment for something like PTSD. The term "mental illness" or is very ambiguous and can be used to describe a litany of mild to extreme medical conditions.

I won't even elaborate on the patient/doctor confidentiality issues here as they are obvious. As the resident Physician in this thread has already noted...their motives are highly suspect.

 

[shootingthebreeze]

Matno, it could be done thru an agency which screens applicants and sends a YES or NO to the gun dealer WITHOUT a diagnosis. The agency would have access to records but would not reveal to the gun dealer any medical information. Yes for a sale No for a no sale. Period.
I've thought about this for quite a while and the agency would be bound by medical confidentiality.
Got to start somewhere.
I'm an RN and I am also concerned about patient confidentiality. The agency would be bound legally to only give a yea or nay to the gun dealer and it could be done by computer eliminating potential questioning by the gun dealer.

 

[Frank Ettin]

As a physician, I think that the biggest concern here should be that the federal government has ANY access to private medical information...

Of course disclosure of individually identifiable medical information to the federal government (or anyone else) is a matter of concern. Such disclosure is regulated, limited and controlled under the HIPAA regulations; and this proposed regulation is only a minor change.

But I would hope to see health care providers and mental health professionals to be taking the lead on commenting on these proposed regulations. They can be very influential. But comments to be credible need to focus on the proposed regulation, not the overall public policy. So consider how this proposed regulation is potentially harmful or otherwise threatens the interests of patients.

...I'd be willing to bet that there are a LOT of members of this forum whose wives have been asked by a pediatrician whether they have guns in the house. Those records are now in the possession of the federal government, as run by the IRS....

Why? How? How would the federal government, especially the IRS, have access to such records? Indeed disclosure to the federal government, and especially the IRS, would be prohibited under existing HIPAA regulations.

...it could be done thru an agency which screens applicants and sends a YES or NO to the gun dealer WITHOUT a diagnosis. The agency would have access to records but would not reveal to the gun dealer any medical information...

How would anything in the proposed regulation result in disclosure of medical information to gun dealers?

...POTUS showed his true colors late last year after a couple mass of shootings. ...but the President can and does influence policy and decision-making within all these agencies...

Of course he does. These are agencies in the Executive Branch of the federal government, and the President is the boss in the Executive Branch. And it would also be fatuous to expect Obama not to act following those school shootings in a manner responsive to the interests and expectations of his core constituency.

That all is a given. The question for us is how we can deal with this reality effectively to best protect our interests.

 

[JohnBT]

"I've thought about this for quite a while and the agency would be bound by medical confidentiality."

You know, the doctors were supposed to be bound by medical confidentiality because it was important. Now we're going to include an agency in this one-to-one relationship? What's next? Data mining? Nevermind.

An agency would be privy to all the details of the doctor-patient relationship. There is no good excuse for breaking confidentiality by including an agency. It serves no good purpose to make doctors stool pigeons. Informers. Dirty rats. Someone will be mad a every doctor - they didn't do enough, they did too much too soon, blah, blah, blah. Court case. If the patients don't sue them the government will.

I predict the end of medicine in the U.S. All the doctors will quit.

 

[alsaqr]

Nothing from the mental patients health record is transmitted to NICS.

How NICS works:

http://www.bjs.gov/index.cfm?ty=tp&tid=49



Some states presently report adjudicated mental cases to NICS. Indiana is one of those states. This is how it works in Indiana:

https://secure.in.gov/judiciary/jtac/2652.htm

And there is this:

In the wake of the Virginia Tech shootings, ten states changed their laws to require that mental health records be sent to NICS: Idaho, Illinois, Indiana, Minnesota, Nevada, New York, Tennessee, Texas, Washington, and Wisconsin. Two others – Maine and Virginia – passed Executive Orders to require the sharing of these records.

http://www.news-medical.net/news/20...at-mental-health-records-be-sent-to-NICS.aspx

Texas:

www.txcourts.gov/oca/pdf/NICSRecordImprovementPlan.pdf

 

[shootingthebreeze]

My view of an agency was hypothetical. Ideas are exchanged to puzzle out this complex issue. An agency which gives the gun dealers a yea or nay may not work.
One thing I do agree on: there has to be better firearm control and better sealing of loopholes which exist.
I'm a firearm owner and have a CPL. I'm retired military and I can say that weapons security in the US Army is strict. Securing firearms could be a step people can take to prevent theft. If better firearm control is not done the Second Amendment could be in danger. That's why I stopped my subscription with the NRA which has been rigid towards any better firearm controls in the United States.
Violence is not predictable. However, a pattern of domestic abuse for example should not be allowed to escalate to the point of a murder suicide even if the shooter has had a history of open threats, and mental treatment. Such a case occurred in our community.
Firearm ownership is a great responsibility which must be taken very seriously.

 

[Mike1234567]

<snip> Why? How? How would the federal government, especially the IRS, have access to such records? Indeed disclosure to the federal government, and especially the IRS, would be prohibited under existing HIPAA regulations.<snip>

I was civil service for nearly a quarter century. When my medical symptoms began to cause occasional lengthy absences (any event longer than 3 work days) my management insisted that I have my doctors write them a letter explaining my diagnosis and treatments... directly to them. When I refused, citing HIPAA, they made threats. I insisted on going through Human Resources... and they demanded that I comply. My managers... all of them... and HR... all of them... either didn't know HIPPA or were deliberately challenging my HIPPA rights. I refused to give them my private medical information directly and asked them to use the proper channels on post. There are correct/legal ways of doing this kind of thing. I was asked to have a medical evaluation done. I complied and was found fit to hold my position. I did have to give the examining doctor my medical information. I was able to work another couple years though.

Bottom line is they have my diagnosis and treatments on file.

HIPPA? What's that to me?

EDIT: What about all the people who comply with illegal demands to hand their private medical information directly to their management or their HR department? It becomes a permanent part of their employment record... not safe in their doctors' files.

 

[Frank Ettin]

...I complied and was found fit to hold my position. I did have to give the examining doctor my medical information. I was able to work another couple years though.

Bottom line is they have my diagnosis and treatments on file.

HIPPA? What's that to me?...

Wrong bottom line.

The reality is the sometimes others have a legitimate need for personal information which is otherwise private.

• If you are claiming sick leave benefits or workers' compensation benefits, you may need to permit disclosure of private information to justify your claim.
  
  
• If there's a question of whether you're medically fit to do a particular job, you may need to permit disclosure of private information to establish your fitness.
  
  
• If you're asking for a loan, you may need to disclose private financial information.

There are a number of laws protecting the privacy of your personal medical and financial information. What those laws essentially do is give you a measure of control over when that information may be disclosed, to whom and for what purposes. But those laws do not guarantee that there won't be circumstances under which you might be required to permit disclosure, especially when the information can be reasonably required to determine if you qualify for something you want.

 

[Derry 1946]

Some clarification: Civil servants who take three days of sick leave or take leave in a pattern (e.g., sick every other Friday) may be required to present a doctor's note -- not turn over all their medical records. If one seeks a reasonable accommodation under the ADA, ADAA, or Rehab Act, the employee or applicant must show a disability, but is not required to disclose wholesale all their medical records. Workers Comp is likewise not open season on medical records wholly unrelated to the claimed injury. On topic: medical record disclosure for any purpose, including firearm regulation, will likely not just be open season on all medical records. If past is precedent, there will have to be a showing of relevance.

But yes, when people ask for things (sick leave, medical benefits) they may need to disclose relevant medical records. How exactly that will or should intersect with Constitutional rights (like RKBA) versus other interests (not expressly Constitutionally protected) is a complex question.

 

[Mike1234567]

Thank you, Frank. I understand that. But that wasn't the intended point of my post.

My point is to let folks know that many government workers, even those working in Human Resources, don't know, understand, or even care about HIPAA Law. Once those people have our private medical information there is no telling who they'll release it to.

Think about those people who receive demands from other government agencies. Do you think they're going to "fight for your or my HIPAA rights" after, even they, they demand you release your private medical information directly to your management without even the slightest privacy protection to the worker? No... many don't know and don't care!!

Derry is absolutely correct... but I defer to my previous paragraph above.

 

[Torian]

My view of an agency was hypothetical. Ideas are exchanged to puzzle out this complex issue. An agency which gives the gun dealers a yea or nay may not work.
One thing I do agree on: there has to be better firearm control and better sealing of loopholes which exist.
I'm a firearm owner and have a CPL. I'm retired military and I can say that weapons security in the US Army is strict. Securing firearms could be a step people can take to prevent theft. If better firearm control is not done the Second Amendment could be in danger. That's why I stopped my subscription with the NRA which has been rigid towards any better firearm controls in the United States.
Violence is not predictable. However, a pattern of domestic abuse for example should not be allowed to escalate to the point of a murder suicide even if the shooter has had a history of open threats, and mental treatment. Such a case occurred in our community.
Firearm ownership is a great responsibility which must be taken very seriously.

Strict is an understatement. Active duty Army guy here. The firearms and ammo on an Army installation are locked down so severely that they are practically inaccessible in the event of an emergency or active shooter. You literally have thousands of trained shooters in a Brigade footprint, yet not a single one can gain access to a firearm to defend themselves. Makes sense right? Also, trying to keep ANY ammo in your vault long-term is such a headache that most units get rid of it after a few days. This is coming from someone who actually conducts the inspections for these arms rooms to determine if they are compliant.

This "solution" to gun theft merely leaves the unarmed population of soldiers quite vulnerable...as evidenced by the Ft. Hood shooting. I believe there are methods that can be undertaken to make it more difficult for weapons to be stolen, but I won't support ANY method for doing so presents barriers to getting to a loaded weapon quickly when needed. I agree with the NRA in their efforts to prevent such laws from being passed...and will continue to support them.

I purchased a safe to store all my guns in because I CHOSE to do so...as well as a lockbox for my ammo. It was a significant investment of money and time, particularly due to the frequency of moves I have to deal with. Personal responsibility with firearms is just that...a personal choice. It is not for the government to make it for you, nor come into your house to tell you whether your guns should be loaded/unloaded, accessible/inaccessible.

 

[Frank Ettin]

...Civil servants who take three days of sick leave or take leave in a pattern (e.g., sick every other Friday) may be required to present a doctor's note -- not turn over all their medical records. If one seeks a reasonable accommodation under the ADA, ADAA, or Rehab Act, the employee or applicant must show a disability, but is not required to disclose wholesale all their medical records. Workers Comp is likewise not open season on medical records wholly unrelated to the claimed injury...

Correct. But note that I never said that one would be required to permit disclosure of all medical records. I said:

...you may need to permit disclosure of private information to justify your claim....

Whatever medical information might be necessary to support your claim is private information. Exactly what information and how much might be relevant will depend on the exact nature of one's claim and circumstances.

...My point is to let folks know that many government workers, even those working in Human Resources, don't know, understand, or even care about HIPAA Law...

Actually that hasn't been my experience. In that later part of career as a law I dealt extensively with HIPAA matters. It was my experience that, at least in the HR departments of larger employers, folks who dealt with medical information were well educated in privacy and HIPAA matters.

...Think about those people who receive demands from other government agencies. Do you think they're going to "fight for your or my HIPAA rights"...

And again, that wasn't my experience. And health care providers in particular tend to be extremely careful about requiring the appropriate HIPAA formalities be adhered to before disclosing information.

 

[Mike1234567]

Frank... that was my experience at the AMEDDC&S and MEDCOM at Ft. Sam. Things like that went on for years unchecked. How many peoples' HIPAA rights have they violated over the last 20 years, do you suppose?

EDIT: And, yes, private health care professionals/organizations are far more careful about HIPAA violations because they're not as powerful and unchecked as government agencies like the AF or Army that seem to get by with whatever they want... at least some of them. Please take me for my word at least with my personal experience on the matter. The government agencies I dealt with are poorly trained and there are no consequences for violations so they do whatever they want. They don't care about individuals' healthcare privacy and they try to bully/threaten people into their "compliance" regardless of legal correctness.

 

[Arkansas Paul]

Actually that hasn't been my experience. In that later part of career as a law I dealt extensively with HIPAA matters. It was my experience that, at least in the HR departments of larger employers, folks who dealt with medical information were well educated in privacy and HIPAA matters.

That hasn't been my experience either. Mine has been similar to Frank's though mine has not been nearly as extensive as I have only been working with HIPPA related issues for about 3 years. However, every time I've ever had to deal with it the HR people at the medical care institutions have been extremely knowledgeable and very much concerned with patient confidentiality.

Now Mike, the reason could be because in the past maybe it wasn't as strictly adhered to so they're getting better as a result of lawsuits.

 

[Mike1234567]

Arkansas Paul... My latest experience with this was four years ago. If they didn't care to train better and adhere to HIPAA law by then, I doubt they're much better now.

 

[shootingthebreeze]

Torian, quite right. Weapons security in the US Army is something else to include key security!!
Yes I have a gun safe and on top of it have ADT so when we leave the house is alarmed. I take security of weapons very seriously and, when I carry I have physical control of my firearm at all times. Common sense. The ADT has really increased my peace of mind beyond belief.
If one has firearms then one has to take steps to secure them and deny access to those who want them. I don't want my firearms to be used in a crime. I think security is the first line of defense against any perp who wants to steal a weapon.
As far as firearm control that is an extremely complex issue especially with mental sick people. But again, how can we prevent the person who goes postal? Like the local case recently of a man who had a history of spousal abuse and killed his estranged wife and kid then killed himself...somehow, if abuse is documented and threats are documented then something has to be done to place that person on some type of probation if he or she has weapons. Complex, tough issues.

 

[Walkalong]

Frank has been more than patient, but this one is all over the place, partly because the topic wasn't too clear to begin with. If someone wants to continue the debate, please start a new thread with a more precise question.