Starvin Larry

“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.”

The debate over the Bill of Rights, and what the Founders meant, has raged for decades, and unfortunately will continue.  The liberal pews are filled with worshipers to the god of government regulation and “flexible construction” or the “elasticity” concept.  A government that knows what is best for all people.  It is with this foundation and reasoning that certain factions approach the Second Amendment.

To Conservatives – especially the “original intent” Conservatives – the Second Amendment is perfectly clear.  It records that the States have not delegated to Congress the power to regulate or abridge (in any way) the right to bear arms.  That authority has been reserved to the States. (See, Absent a Bill of Rights, Self-Promoting President Could Lead to a Destructive ‘Democratic Monarchy’.)

Unfortunately, there lurks in the bowels of current legislative mandates a potential Trojan horse through which opponents could attempt to invade and circumscribe Second Amendment rights.

Federal attempts at creating a national firearms registration scheme have been on-going ever since the passage of the Nation Firearms Act of 1934.  However, there is no comprehensive national system of gun registration.  In fact, federal law prohibits the use of the National Instant Criminal Background Check System (NICS) to create any system of registration of firearms or firearm owners. (18 U.S.C. § 926(a); 28 C.F.R. § 25.9(b)(3)). However, the individual states have a multitude of systems related to gun ownership, registration and limitations.

Setting aside the repetitive attempts to establish a unified federal registry, it is on the battlefield of those state laws that the attack on the Second Amendment occurs. Let’s use New York SAFE Act (Secure Ammunition and Firearms Enforcement), for example.  New York law requires physicians to report to state officials any patient they deem “likely to engage in conduct that will cause serious harm to self or others.”  (There is a question whether a patient that is presenting to the physician with signs of – or is seeking treatment for – mental health issues or illegal substance addictive conditions would require such a report.) The report goes to a county mental health official, who, assuming he agrees with the clinician’s assessment, passes it on to the New York State Division of Criminal Justice Services (DCJS), which determines whether the patient holds a firearms license or permit to purchase a handgun. If the person holds a license, the DCJS must notify the local licensing official, who must suspend or revoke the patient’s license and instruct him to surrender all of his firearms, including rifles and shotguns. If he fails to do so, police are authorized to seize them. [1]

Since the intent of these laws is to remove firearms from individuals who meet these disqualifying conditions, there could be a move to utilize the existing federal health laws to help achieve these confiscatory ends.  How could this happen?

The Affordable Care Act (“Obamacare”) requires every citizen to obtain health care with policies that provide, at least the government’s mandated coverage.  Under the guise of providing (aka, “mandating”) health care, all insurance policies must cover certain medical conditions. Obama’s administration promulgated implementing regulations which require coverage for “mental health” treatment.  Certainly providing insurance coverage for mental health issues is humane, proper and logical. However, as will be seen below, even a well-meaning gesture can be manipulated to have an equally negative result.

Let’s step away from that issue for a moment.  Let’s turn our attention to the issue of medical records.  Part of the ACA made it a requirement that by Jan 1, 2014, all public and private healthcare providers must have adopted and demonstrated “meaningful use” of electronic medical records (“EMR”).  (Penalties will be applied for non-compliance in the amount of a 1 percent reduction to providers in Medicare reimbursements.)  The EMR consist of not only the patient’s doctor’s file, but also includes “records” of all “associate health care providers” (psychologists/psychiatrists; pharmacies, research centers, treatment facilities, etc.).  These EMR are utilized for a variety of normal, routine purposes – billing, reimbursements, reporting, compliance, etc.  This same EMR (PHI/PII) can be accessed and utilized for “authorized” purposes – including federal and state Law Enforcement purposes. [2] Electronic records, especially those that are subject to government reimbursement, are now subject to access and review by a larger universe of  government agencies (at least 38 federal government agencies are specifically authorized in the government’s draft “Federal Health IT Strategic Plan” to obtain access to a patient’s protected health information (“PHI”)).

In accordance with the ACA and the Health Insurance Portability and Accountability Act (“HIPAA”), when a patient seeks medical advice (and periodically thereafter), he/she is provided a Privacy Notice regarding the patient’s PII (Personally Identifiable Information) and PHI.  This Notice (which is not a “consent” form) informs the patient of his/her rights regarding the PII/PHI, and that in certain situations the patient’s information can be disclosed without notice or consent.

The HIPAA Privacy Rule was intended to recognize the legitimate need for public health authorities and others responsible for ensuring public health and safety to have access to protected health information to carry out their public health mission. The Rule also recognizes that public health reports made by covered entities (an entity that is subject to control under HIPAA) are an important means of identifying threats to the health and safety of the public at large, as well as individuals. Accordingly, the Rule permits covered entities to disclose protected health information without authorization for specified public health purposes.

Under HIPAA, health care providers are required as of October 1, 2015 to begin to utilizing the new government ICD-10 codes.  These codes replace the existing ICD system.  These codes are how a healthcare provider identifies what condition was treated, what procedures were performed, etc.  These are then utilized to determine insurance coverage, reimbursement, reporting, tracking, etc.  Under the ICD-10 system, Chapter “F” contains the codes which are utilized to describe mental health treatment and diagnoses.

Thus, as prescribed by the ACA, every citizen must have healthcare insurance meeting the ACA minimal coverage (which includes mental health coverage). [3] HIPAA requires every healthcare provider to comply with the EMR requirement with both PII/PHI and ICD-10 codes being provided to the government.  This information can be utilized for any “lawful purpose” (which includes state and federal law enforcement purposes). [4]

Various states have limitation on sales and possession of firearms.  These limitations include (as in NY) the exclusion/prohibition of sales of firearms to any individual who may be likely to engage in conduct harmful to himself or others. [5] These states would also, presumably, prohibit the possession of firearms by individuals who similarly are potentially ‘harmful’.  Under many other states an individual must also undergo a federal (and a state) NICS (National Instant Criminal Background Check System) check prior to being able to purchase a firearm, to determine a “prohibited” status.

While there is already one government data base that is utilized to impose a limitation on the Second Amendment (NICS), under the ACA and HIPAA there is now a Second federal data base that, if not prevented by Congress, could be used to further erode our Second Amendment rights.

http://cnsnews.com/commentary/kenneth-kopf/obamacare-s-second-amendment-trojan-horse