HIPPA and the new Executive Orders

[Tirod]

A recent thread was started and it was suggested that this was the better forum. Since the OP hasn't reposted it here, I will personalize it.

Say I'm a veteran who is diagnosed with PTSD and under treatment for it. Can I buy a pistol, i.e., will my purchase get flagged in NICS and turned down?

It's all about our health data being made less private in order to stop certain individuals from purchasing firearms who may have a predisposition to illegal behavior. It's one of the things that seem reasonable - should we allow those who are known to have issues be able to purchase firearms, or prohibit them? It involves prior restraint.

I'm asking because the consensus among most of my fellow soldiers and friends is to avoid any official diagnosis as it will eventually become a method to restrict our RKBA.

Along with that are the new Executive Orders involving HIPPA: "In the latest executive actions, the Department of Justice is proposing to clarify that the term “committed to a mental institution” includes involuntary outpatient as well as inpatient commitments. " From http://thecaucus.blogs.nytimes.com/2014/01/03/obama-announces-gun-control-actions/?_r=0

Any commentary yet from the experts on what this will do?

 

[Glocktogo]

For the umpteenth time, they are not EO's. They are NPRM's (Notice of Proposed Rulemaking) in the Federal Register. They are not laws. They are not Executive Orders. They do not originate from the White House or Congress.

Please do some research!

 

[Pizzapinochle]

As you quoted, these clarifications were for people INVOLUNTARILY committed to mental health treatment. That means Baker act or something else, they are rare and usually used when someone poses an immediate threat to themselves or others.

If you go and SEEK treatment, that is not an involuntary commitment, so those proposals have no impact on you.

 

[wildbilll]

For the umpteenth time, they are not EO's. They are NPRM's (Notice of Proposed Rulemaking) in the Federal Register. They are not laws. They are not Executive Orders. They do not originate from the White House or Congress.

Please do some research!

Federal regulations come from which branch of government? Come on. DOJ proposes rule, DOJ headed by Obama.

 

[Frank Ettin]

For the umpteenth time, they are not EO's. They are NPRM's (Notice of Proposed Rulemaking) in the Federal Register. They are not laws. They are not Executive Orders. They do not originate from the White House or Congress.

Please do some research!

Federal regulations come from which branch of government? Come on. DOJ proposes rule, DOJ headed by Obama.

Yes, these Notices of Proposed Rule Making come from agencies in the Executive Branch; and yes, Obama is the boss in the Executive Branch.

But a NPRM is not an Executive Order. The term "Executive Order" has a precise meaning, and it is a different sort of action/directive from a regulation.

These are technical subjects, and proper terminology needs to be used.

 

[alsaqr]

Say I'm a veteran who is diagnosed with PTSD and under treatment for it.

OK.

Can I buy a pistol,

Yes, unless you are otherwise prohibited from doing so. Being diagnosed with PTSD alone does not prohibit the buying of a gun.

i.e., will my purchase get flagged in NICS and turned down?

Not because of PTSD alone.

i know a few dozen military vets who have PTSD: Most are hunters and shooters; none are prohibited from owning guns.

This vets with PTSD prohibited from owning guns thing is in the realm of conspiracy stuff. It's being used to inflame gunowners.

Read this:

http://www.theveteransvoice.com/Vets-PTSD-and-Guns.html

 

[MErl]

Is there an exact legal definition of committed?

Given the inclusion of outpatient services in the proposed regs it seems that any court ordered treatment of any kind may become disqualifying. The only reason they would have to mandate the treatment is someone being a danger to themselves or others so that part is covered. Mental institution is being very broadly defined so we're left with committed as the part that is not broad.

 

[Glocktogo]

That's what they're trying to do is clarify the meaning of "committed". Your use of the word "may" is a good one, because the agency or department(s) seeking the clarification would then determine which types of treatment would be a prohibitor reportable to NICS. It still has to be involuntary, but the question then arises as to how the person's rights are protected when they are in the web so to speak.

 

[Onward Allusion]

Keep in mind that it may be very different at the STATE level. Some States have much more onerous definitions (i.e. even being a patient under psych care disqualifies).

 

[rdhood]

Being diagnosed with PTSD alone does not prohibit the buying of a gun.

... for today. But I don't need a weatherman to tell me which way the wind is blowing.

 

[Tirod]

I appreciate trying to clarify the precise nature of whatever proposal is being suggested. Reading the article in the link, it becomes obvious the writer attempted to cloak was was a DOJ proposal with language to make it appear as an EO - an "executive action." About like the hype over "polar vortex," it's the same old cold front coming out of the Artic as they always have been. I get how writers are overdoing it coming up with new terms to incite the readers interest rather than inform.

Again from the link, and I quoted:

"In the latest executive actions, the Department of Justice is proposing to clarify that the term “committed to a mental institution” includes involuntary outpatient as well as inpatient commitments. "

Define "involuntary outpatient" and "inpatient commitment." Please be precise and give examples, because we certainly don't want to spread conspiracy theories. Just the facts.

 

[Onward Allusion]

More info at this link:

http://www.gunlawsbystate.com/post-...pression-and-possessing-a-firearm-the-basics/

Excerpt:


This is question 11.f., which states as follows:

“f. Have you ever been adjudicated mentally defective (which includes a determination by a court, board, commission, or other lawful authority that you are a danger to yourself or to other or are incompetent to manage your own affairs) or have you ever been committed to a mental institution?”

If your suffer from a PTSD diagnosis and fall into either of these categories, you would be an unlawful possessor of firearms, and would have to answer “yes” to this question. Failure to do so would be a crime in failing to improperly disclose this on an FFL and a separate crime in taking possession of a firearm if this actually occurred and you cleared the NICS check. This determination could be made by any state or federal body or medical doctor or police officer (i.e., involuntary commitment) and there is little clarification found in other legal resources.

However, there is an exception for having this disqualifier:

“A person who has been adjudicated as a mentally defective or committed to a mental institution is not prohibited if: (1) the person was adjudicated by or committed by a department or agency of the Federal Government, such as the United States Department of Veteran’s Affairs (“VA”) (as opposed to a State court, State board, or other lawful State authority); and (2) either: (a) the person’s adjudication or commitment for mental incompetency was set aside or expunged by adjudicating agency; (b) the person has been fully released or discharged from all mandatory treatment, supervision, or monitoring by the agency; or (c) the person was found by the agency to no longer suffer from the mental health condition that served as the basis of the initial adjudication. Persons who fit this description should answer “no” to Item 11.f. This exception does not apply to any person who was adjudicated to be not guilty by reason of insanity, or based on lack of mental responsibility, or found incompetent to stand trial, in any criminal case or under the Uniform Code of Military Justice5.”

 

[Frank Ettin]

...
Define "involuntary outpatient" and "inpatient commitment." Please be precise and give examples, because we certainly don't want to spread conspiracy theories. Just the facts.

Probably the place to start would be the actual Notices of Proposed Rule Making. There are links to those in another now closed thread in the Legal Forum on this subject. But I'm on an iPhone now and really can't embed those links in this post. Maybe someone else could.

 

[alsaqr]

Maybe someone else could.

Done:

https://s3.amazonaws.com/public-inspection.federalregister.gov/2014-00055.pdf

https://s3.amazonaws.com/public-inspection.federalregister.gov/2014-00039.pdf

 

[Frank Ettin]

Done:



https://s3.amazonaws.com/public-inspection.federalregister.gov/2014-00055.pdf



https://s3.amazonaws.com/public-inspection.federalregister.gov/2014-00039.pdf

Thanks.

 

[CLP]

As a psychiatrist who has testified many times in probate court regarding someone's capacity to ensure their own safety and psychiatric care, I can tell you the following:

A couple of generations ago, if you were found to be schizophrenic or have some other severe mental illness, you could be hospitalized for very long periods of time; years in fact. Without going into the reasons why, there eventually followed an effort to deinstitutionalize these patients, many of them now receiving care at community mental health centers.

Acute hospitalizations (short term) can be voluntary or involuntary. In Alabama, it's not easy to meet the criteria for involuntary hospitalization. You have to essentially pose an imminent risk of danger to yourself or others. I've discharged many people from the emergency dept. who were psychotic or genuinely homicidal because they couldn't be involuntarily hospitalized since they didn't meet that standard.

Often, the severely mentally ill, for various reasons, are noncompliant with their treatment recommendations. This leads to repeated hospitalizations. They're usually Medicaid patients, or lack insurance altogether. This is an expensive cycle. In such a case, either a family member or our social worker will file a petition so that a probate judge can make a determination on their care. Sometimes they get sent to the state mental hospital- but rarely do those hospitalizations extend beyond 4 weeks. What often occurs is that someone is outpatient committed. This means the judge is mandating that they received psychopharmacologic treatment. Typically with strong psychotropic meds (antipsychotics and mood stabilizers).

Being outpatient committed is a pretty big deal. It doesn't just happen to anyone. The laws for outpatient commitment also vary between states.
Most commonly, it happens to psychotic or manic patients who are either treatment refractory or nonadherent. Often, treatment is given by a nurse who travels to the patient's residence and administers an injection of a depot antipsychotic (to prevent noncompliance) every two to four weeks. It's not because a judge made you go to marriage counseling or anything like that.

So, having PTSD is nothing that would prevent you from lawfully purchasing a firearm. However, the physicians at the VA are trained to ask about firearms ownership. They're typically ignorant of firearms and suggest blanket recommendations to vets to get rid of their firearms. It tends to worsen the paranoia of a lot of vets with PTSD (which, though totally off-topic, is an extremely over diagnosed condition at the VA). I treated vets at the VA and often had conversations about firearms, but usually in the context of establishing a rapport with them by discussing a mutual interest.

In fact, if you look a Form 4473 closely, you'll see that you can still be severely mentally ill and legally purchase a firearm (I'm not offering any opinions, just stating the facts). You can become severely psychotic, voluntarily accept an offer of hospitalization, get treated and discharged, and then go lawfully purchase a firearm. I can tell you that if someone is genuinely severely mentally ill then it's a chronic condition that can mostly only be treated symptomatically; it doesn't go away. And treatment with antipsychotic medications often leave people sedated or with mental clouding.

 

[CLP]

Keep in mind that it may be very different at the STATE level. Some States have much more onerous definitions (i.e. even being a patient under psych care disqualifies).

I'm just curious...which state(s) prohibit a person from lawfully purchasing or owning a firearm merely for being "a patient under psych care"?

 

[Derry 1946]

As a psychiatrist who has testified many times in probate court regarding someone's capacity to ensure their own safety and psychiatric care, I can tell you the following:

A couple of generations ago, if you were found to be schizophrenic or have some other severe mental illness, you could be hospitalized for very long periods of time; years in fact. Without going into the reasons why, there eventually followed an effort to deinstitutionalize these patients...

Thanks for your perspective, CLP. Remember Larry Hogue? He was a classic instance of the mentally ill and the revolving door.

 

[Onward Allusion]

CLP

Quote:
Originally Posted by Onward Allusion View Post
Keep in mind that it may be very different at the STATE level. Some States have much more onerous definitions (i.e. even being a patient under psych care disqualifies).

I'm just curious...which state(s) prohibit a person from lawfully purchasing or owning a firearm merely for being "a patient under psych care"?

Something I knew about firsthand . . . not the psych part . . . but having been in the non-free-State of IL.

3. In the past 5 years, have you been a patient in a mental institution or any part of a medical facility for the treatment of mental illness? (Unless your treatment was solely for alcohol abuse disorder.)

Question #3 on the Illinois Firearms Owner ID Application.

The part in bold blue. Definitely applies to individuals who voluntarily check themselves in for psych respite or drug rehab. Also...depending on the political climate, it can easily be interpreted as being someone under outpatient psychiatric care. I'm sure there are a few other States with this in their gun laws.

You may say that outpatient psych care, including life management therapy, anger management, and even marriage counseling isn't treatment. HOWEVER, your health insurance company along with Obamacare do think it is treatment, right? Think about how easy it would be for a State's Attorney to issue an opinion on this and BAM! You're ineligible.


From the State of Michigan's License to Carry... 28.425 7b(l) The applicant does not have a diagnosed mental illness at the time the application is made regardless of whether he or she is receiving treatment for that illness

I think PTSD or Depression can be argued as a diagnosed mental illness?

Ironically, just across the State, and with most States we don't have to apply for the right to own a firearm.