Obamacare Protects Second Amendment Gun Rights
By Victor Kostro // January 17, 2013
EDITOR’S NOTE–In the August 2011 issue of Space Coast Medicine magazine, Merritt Island pediatrician and then president of the Florida Pediatric Society, Dr. Lisa Cosgrove wrote an editorial raising serious concerns over the increased government encroachment into the practice of medicine inherent in the Florida law titled “Firearm Owner’s Privacy Act (FOPA),” which, at the time, had recently been passed by the legislature and signed by the governor. Dr. Cosgrove, a passionate advocate for child health and safety, said, “The bill is an unnecessary intrusion into the physician-patient relationship as privacy regarding patient visits is currently covered under national law under the Health Insurance Portability and Accountability Act. Because of the existence of HIPAA, no law is needed.”
Even beyond the legal status of the FOPA here in Florida, the controversies surrounding gun control/violence and the issues related to patients’ right to privacy have collided head on with President Obama’s executive orders and the provisions in Obamacare that create confusion for providers and patients.
We are delighted to welcome Victor Kostro of the Melbourne law firm O’Brien, Riemenschneider & Wattwood, to clarify the facts and update our readers on healthcare and firearm owner rights.
BREVARD COUNTY • MELBOURNE, FLORIDA–Most healthcare practitioners and much of the general public may recall the “Firearm Owners’ Privacy Act” signed into law by Governor Rick Scott during the Florida legislative session of 2011. As written, it prohibited practitioners and healthcare facilities from making notations in a patient’s medical record regarding gun ownership or making inquiries of a patient regarding firearm ownership or possession if the provider knew the information was not relevant to medical care or safety. It also prohibited discrimination and harassment against firearm owners and gave patients the right not to answer such inquiries. Violators of the Act were subject to disciplinary proceedings, including fines and possible loss of license.
Florida Law Violates Physicians’ And Patients’ Rights
The law was immediately challenged in federal court on First Amendment grounds, and a federal judge issued a finding on June 29, 2012 that the law was unconstitutional because it violated both the physicians’ and patients’ right to free speech.
Additionally, the court found the law “vague” because it failed to provide healthcare practitioners with standards they could reasonably follow to remain compliant with the law. Gun-rights advocates had contended that such inquiries by the medical profession were an invasion of patients’ privacy and an infringement of Second Amendment rights.
The Florida Medical Association originally opposed the law when it first came under consideration in the state legislature, but withdrew opposition when it was amended to allow physicians to ask about guns in the home if they believed there was an immediate danger. The state of Florida has appealed this decision and the case is currently pending before the Atlanta-based 11th U.S. Circuit Court of Appeals.
PPACA ‘Protects’ Gun Owner Rights
What is of far lesser common knowledge, however, is that the Patient Protection and Affordable Care Act (PPACA), signed into law on March 23, 2010 by President Obama contains five provisions that address gun owner rights. Located in Title X, on page 2037 of the PPACA, is a section labeled “Protection of Second Amendment Gun Rights.” This provision in the federal health care law is actually an amendment to the Public Health Service Act of 1944.
The first of the five provisions states that a wellness and health promotion activity may not require the disclosure or collection of any information relating to the presence or storage of a lawfully possessed firearm and ammunition or the usage of the firearm in the residence or on property owned by an individual.
The second section prohibits the government, through its use of healthcare practitioners and insurers, from collecting data related to a patient’s lawful ownership, possession, use or storage of firearms or ammunition.
The third provision bolsters that directive by stating that collectors of the data cannot use this information to maintain records of individual ownership or possession of a firearm or ammunition.
The fourth provision is directed at health insurance companies and states that premium rates may not be increased, nor may health coverage be denied, and no discounts, rebates or rewards may be reduced within a wellness program because of an individual’s lawful ownership or possession of a firearm or ammunition or because of an individual’s lawful use and storage of a firearm or ammunition.
Finally, the fifth provision states that no individual shall be made to disclose under any data collection activity, information related to an individual’s ownership or possession of a firearm or ammunition or the individual’s lawful use, possession or storage of a firearm or ammunition.
Pelosi: ‘We Have to Pass the Bill So That You Can Find Out What Is In It’
Surprised that there are Second Amendment Protections in the PPACA? You’re not alone. It has recently been reported by the news media that lawmakers, medical groups and even some in the administration are just discovering the provisions within the text of the law.
The Standard Examiner newspaper reported that the language was included at the request of Nevada Senator Harry Reid, and inserted after the act cleared the Senate Finance Committee but before it was voted on by the full Senate. Reid evidently inserted the provision to keep the NRA at bay long enough to get ObamaCare passed. Reid was pro-gun at the time, but has moved to the left in the past couple of years.
Firearm advocates say that the provisions are necessary, not to keep physicians from discussing guns with patients, but to keep the government from amassing a federal data base full of information about firearm owners. Additionally, advocates say they are concerned that health insurance companies would use gun ownership information to raise rates.
Contradictory Provisions In Obamacare Create Confusion For Physicians
Opposition to the provisions now appears to be growing. Advocates for firearm regulations state that research statistics for studies related to firearm violence are not being collected primarily because physicians and healthcare researchers who could track patterns are being inhibited each time laws are implemented to lessen discussion between physician and patient.
The Bangor Daily News reported in an article dated December 31, 2012 that The American Academy of Pediatrics called the provision in the healthcare bill “pretty outrageous,” saying it risked creating a sense among doctors that “this is dangerous information to collect.”
The pediatricians group submitted a letter to the Obama administration saying that pediatric advocates “vehemently reject” the gun provision in the healthcare law. The group noted that the provision runs counter to guidelines included in other sections of the legislation that ask family doctors and pediatricians to inquire about the presence of guns in patients’ homes, along with other potential dangers, such as mold, lead, cigarette smoke and a lack of smoke detectors.
Executive Order: OK To Ask About Guns In The Home
Yesterday the President released his legislative and policy recommendations relating to gun control. He also executed 23 executive orders. One order clarifies that the PPACA does not prohibit doctors from asking patients about guns in the home. Another order directs that a letter be released to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.
Unlike the Florida law, the federal provisions do not prevent doctors from asking patients about guns, but it does restrict practitioners, insurers, employers and government officials from asking about gun ownership, and then collecting and centralizing such data. The debate over whether the medical community can treat firearms as a public health issue or whether this information shall be deemed a protected privacy right is not over and will continue to play out in the court system and halls of Congress.
ABOUT THE AUTHOR
Victor S. Kostro is an attorney in private practice with the law firm of O’Brien, Riemenschneider & Wattwood, P.A. He has extensive experience as a corporate, transactional, healthcare attorney having served as Associate Corporate Counsel/Corporate Risk Manager for Health First, Inc. In this role, Vic provided representation related to physician employment, practice sales/acquisitions, regulatory and compliance issues, peer review and disciplinary actions, and counseled on issues related to fraud and abuse, anti-kickback laws, Stark, self-referral and the False Claims Act. In addition, Vic managed the entity’s Risk Management Department, which included oversight of all medical negligence and personal injury claims asserted against the entity, its hospitals and physicians. Vic is well versed in medical practice entity formation, and contractual matters, employment, shareholder and partnership agreements, purchase and sale agreements, estate planning and asset protection. Vic holds a Master of Laws in Taxation from the University of Florida.