by Dave Kopel - Thursday, June 18, 2015
When you go to a doctor’s office, you expect that the doctor will ask you some health-related questions, about such things as weight, exercise, sleep and so on.
Doctors adhere to this “standard of care”—the term used for what an average, prudent doctor would do—because that’s what they are trained to do, and because it’s necessary in order to avoid malpractice lawsuits. But some doctors are expanding the standard to include asking you about firearms ownership and telling you that all guns in the home should be unloaded and locked up, with the ammunition locked separately. That begs some questions, such as: What will happen to you if you disclose this personal information? What if you refuse to answer?What will happen to you if you disclose this personal information? What if you refuse to answer?
In San Francisco, a man honestly answered his doctor’s questions about whether there were guns in the home. A short time later, Child Protective Services arrived at the residence, and demanded to be let inside so that they could inspect whether the guns were locked up.
In Ocala, Fla., Amber Ullman took her 4-month-old baby to a pediatrician for shots and a checkup. When she refused to answer the gun question, the doctor terminated the relationship and the mother was given 30 days to find a new pediatrician.
In the Chicago suburb of Oak Lawn, a family brought their 16-year-old son to Advocate Children’s Hospital for a tonsil infection. While taking the son’s medical history, the doctor asked the parents to step out of the room. Then the doctor asked the teenager if there were any guns in his home. (John Kass, “Doctor Probes Teen On Guns In The Home,” Chicago Tribune, Jan. 23, 2013.) Although the family does not own firearms, the mother was furious at the invasion of privacy. After all, her son was not there because of suicidal risk or other psychiatric issues.
The Woodward News, of Woodward, Okla., ran an investigative story earlier this year, asking “why this question is almost always now routinely included on programs created by health care information software companies who market worldwide to health care facilities and physician’s offices.” (Rachael Van Horn, “The Gun Question,” Jan. 24, 2015.)
The News report focused on an Oklahoma woman’s story about going to a clinic for a case of the flu. According to the woman, the nurse asked about family health history, such as diabetes and cancer—and then asked the woman if she had any guns at home.
The News article explains that the gun question is most commonly asked in the course of taking a patient’s medical history. It is especially common for Medicaid and Medicare patients.What if you don’t like a doctor’s intrusive and irrelevant questions about your personal life? In rural areas and small towns, there may not be any other doctor available.
Pursuant to the 2009 Obama “stimulus,” patient records are now being digitized. Physicians are rewarded with up to $44,000 for adopting Electronic Medical Records (EMRS). If they do not adopt, they are penalized by reduced Medicare and Medicaid reimbursements. (American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 4101, 123 Stat. 115; 42 U.S. Code § 300jj-11(c)(3)(A)(ii).)
EMRs can be helpful when a specialist wants to look at your lifetime medical history from your general practitioner. EMRs allow insurance companies and the government to process claims more efficiently.
When EMRs include the gun question, though, it means that the health care system is being used to accumulate records of who owns guns. This is gun owner registration.
What if you don’t like a doctor’s intrusive and irrelevant questions about your personal life? In rural areas and small towns, there may not be any other doctor available. In larger cities, your ability to change medical providers is much smaller than it was 20 years ago, and your ability to choose continues to shrink. One of the objectives of Obamacare is to force physicians to stop operating as independent small businesses; rather, physicians are being squeezed to abandon independent practice, and to become employees of large entities, such as hospital chains.
In truth, federal law does not require that the gun question be included in every medical history. The federal Centers for Medicare and Medicaid Services confirmed this fact to the Woodward News.
The decision about the gun ownership question is typically made by the large companies that lease EMR software to doctors. Once that question is in the EMR program, 99 percent of medical offices will just follow the EMR script and ask the question. Among the EMR programs asking the gun question is Epic’s program, used by Kaiser Permanente in southern California.
So who is pushing the software companies to include the gun question? Most of all, it’s the American Academy of Pediatrics. AAP is the leading professional association for pediatricians, and it publishes medical research on topics such as “Case Report of Successful Treatment of Pallid Breath-Holding Spells With Glycopyrrolate.” But for many years, the AAP has been under the control of social justice warriors who believe deeply in the nanny state in general, and gun prohibition in particular. So who is pushing the software companies to include the gun question? Most of all, it’s the American Academy of Pediatrics.
AAP’s best-known anti-gun spokesperson is Dr. Katherine Christoffel, professor emeritus at Northwestern University’s Feinberg School of Medicine. According to her, “Guns are a virus that must be eradicated.” (J. Somerville, “Gun Control as immunization,” American Medical News, Jan. 1994, p. 9.)
The AAP’s “gun safety instruction” manual is based on information from a gun prohibition organization, the Center to Prevent Gun Violence (a group that later changed its name to “Brady Center”). According to the manual, “The safest home is a home without guns.” That is unless, of course, there is a home invasion, in which case the absence of a gun leaves your family defenseless.
The American Medical Association is another supporter of the anti-gun agenda. For a quarter of a century, it, too, has used its professional journal to promote anti-gun propaganda.
So if somebody writing EMR software doesn’t know much about the gun debate, it’s easy to see why that person might think including the gun question is just a routine part of medical history. After all, that’s what the AAP and AMA have been promoting for years.
Dr. Timothy Wheeler is head of Doctors for Responsible Gun Ownership. The group’s website is drgo.us, and it also has a Facebook site. Wheeler explains that physicians promoting an anti-gun agenda are violating medical ethics by committing a “boundary violation.”
Because a patient is in a vulnerable position, he or she can be especially susceptible to a doctor’s wishes—even if those wishes have nothing to do with the doctor’s medical expertise. One classic example of a boundary violation is a doctor initiating a sexual relationship with a patient. Likewise, using the doctor-patient relationship to convince a patient to make a particular financial investment is a boundary violation, since doctors have no more expertise about investments than does the general public.
Wheeler argues that anti-gun counseling is also a boundary violation. Unlike firearms safety instructors, or criminologists who specialize in firearms study, doctors who have just read a few slanted, inaccurate articles in the AAP journal Pediatrics are certainly not gun safety experts, and they should not use the doctor-patient relationship to promote a political agenda.
So what is being done about the problem?
First of all, when Obamacare was moving through Congress, the NRA acted to ensure that the program could not be used as a formal legal basis for mandating inquiries and record-keeping about gun ownership. Section 2716(c) of the Affordable Care Act is titled “Protection of Second Amendment Gun Rights.”
Subsection (c)(1) states that “A wellness and health promotion activity” implemented under Obamacare “may not require the disclosure or collection of any information relating to” lawful possession or storage of firearms or ammunition in a person’s residence.When Obamacare was moving through Congress, the NRA acted to ensure that the program could not be used as a formal legal basis for mandating inquiries and record-keeping about gun ownership.
The next subsection, (c)(2), states that nothing in the Patient Protection and Affordable Care Act (PPACA, the formal name for Obamacare) authorizes the collection of information about the lawful possession or storage of firearms or ammunition.
Finally, (c)(3) says that nothing in the PPACA “shall be construed to authorize or may be used to maintain records of individual ownership or possession of a firearm or ammunition.”
This is certainly a good start, as it prevents Obamacare from being used to mandate gun data collection. But according to the Obama administration, it doesn’t prevent physicians from asking the gun question—and recording the answer.
On Jan. 16, 2013, President Barack Obama issued a host of executive actions about gun control. Eight days later, the U.S. Department of Labor issued an FAQ about Obamacare implementation (dol.gov/ebsa/faqs/faq-aca11.html). Question five was, “Does PHS Act section 2717(c) restrict communications between health care professionals and their patients concerning firearms or ammunition?”
The Obama administration’s answer: “No. … The statute prohibits an organization operating a wellness or health promotion program from requiring the disclosure of information relating to certain information concerning firearms. However, nothing in this section prohibits or otherwise limits communication between health care professionals and their patients, including communications about firearms. Health care providers can play an important role in promoting gun safety.”
Regulation of the medical profession is mostly a state issue, so the long-term solution will have to come from the states. The reform leader here is Florida. The state’s landmark 1987 Right-to-Carry law became that national model for fair and objective licensing of concealed handgun carry for lawful protection. The Florida model has spread nationally, as the state’s medical privacy reform likely will in the future.
In 2011, the Florida Legislature enacted the Florida Firearm Owners’ Privacy Act. Like the carry licensing law, the 2011 reform came thanks to the hard work of Unified Sportsmen of Florida, which is led by former NRA President Marion Hammer. The Privacy Act is codified in Florida Statutes sections 381.026, 456.072 and 790.338. The core provisions are in 790.338:
A health care practitioner may not enter “any disclosed information concerning firearm ownership into the patient’s medical record if the practitioner knows that such information is not relevant to the patient’s medical care or safety, or the safety of others.”
So doctors, nurses, physicians’ assistants, etc., can enter the information when it is relevant. For example, the patient is having suicidal thoughts.
The ink was barely dry on the Florida Firearm Owners’ Privacy Act before the American Academy of Pediatrics and its allies filed a lawsuit against it.
They won in federal district court, so the case went to the 11th Circuit Court of Appeals. There, the NRA filed an amicus brief, which explained that the Privacy Act protects patients “from doctors who wish to advocate against the Constitution and disguise it as medical treatment, and then to make a permanent record of the patient’s responses.”
The NRA brief also pointed out that the Privacy Act is consistent with other Florida laws protecting gun owner privacy, such as the requirement that the names of concealed-carry licensees be kept confidential, and the prohibition against creation of gun registries.
The 11th Circuit reversed the lower court’s decision, and upheld the Privacy Act in Wollschlaeger v. Florida, 760 F.3d 1195 (July 25, 2014). The opinion was written by Judge Gerald Bard Tjoflat. As he explained, “the Act simply acknowledges that the practice of good medicine does not require interrogation about irrelevant, private matters.”
The court noted that patients might be concerned about “disclosing to a physician information regarding any number of private topics when such information is not relevant to his or her medical care.” For example, “religious or political affiliations, sexual preferences or bank account balance.” The Privacy Act “merely circumscribes the unnecessary collection of patient information on one of many potential sensitive topics.” The Act’s purpose is “protecting a patient’s ability to receive effective medical treatment without compromising the patient’s privacy with regard to matters unrelated to health care.”
The court reiterated that the Privacy Act does not bar firearms questions when they are relevant, as in a “case of a suicidal patient.” And because the Privacy Act only regulates speech “as part of the practice of medicine,” which has always been “subject to reasonable licensing and regulation,” the Privacy Act “does not offend the First Amendment.”
The dissenting opinion argued that the Privacy Act did violate the First Amendment. But the dissent, too, acknowledged the Act was a response to a genuine problem.
“The Legislature heard that: ... a facility separated a mother from her children while interrogating them about firearms; a physician refused to care for a 9-year-old boy because he wanted to know about firearms in the home; citizens were falsely told that Medicaid required them to disclose their firearm ownership and would not pay if they refused to answer; a doctor refused to examine a child when the mother refused to answer firearms questions; and a facility billed for services not delivered after a family refused to answer questions about their firearms.”
As this article goes to press, the North Carolina Legislature is considering a similar reform measure. House Bill 562 is a wide-ranging bill to protect Second Amendment rights. Section 15 forbids doctors from using written forms to ask about gun ownership. If the doctor makes a verbal inquiry, he or she must keep the patient’s answer confidential “unless the patient has been adjudicated incompetent due to mental illness.”
When the NRA began taking Florida’s Right-to-Carry model nationwide in the late 1980s, the NRA worked to pass the best bills it could wherever possible. Some of the state laws were better than Florida’s, and some were not as good. Since then, many of those Right-to-Carry laws have been improved and strengthened. Limitations that were necessary to pass a bill in the first place often have been removed by subsequent legislatures, based on practical experience about how well Right-to-Carry works.
Protecting patient privacy likely will follow the same model. Every state needs this reform. It will come sooner in some states than in others, and it will probably take a long time to bring reform to all 50 states. In the meantime, you as a patient can exercise your right to refuse to answer irrelevant questions, and politely explain to your health care providers why you are refusing to do so.
Wrong Side? Everytown, Every Time
Never content to see laws on the books that might in any way benefit law-abiding gun owners, Everytown for Gun Safety has launched an online campaign against reforming medical privacy involving firearms.
The campaign, titled “Tell the NRA: Stay Out of Our Doctor’s Offices,” is full of misleading information about such laws, and even includes a petition to sign and send to the governor in states where such measures are under consideration.
Funded by billionaire Michael Bloomberg, the campaign is proof, once again, that no matter what the issue, Everytown will always come down on the opposite side of America’s peaceable gun owners.
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