Obama’s new gun rules don’t mean your doctor will rat you out

01:31 - Source: CNN
What Obama's executive actions on guns will do

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Ford Vox: Media reports, Twitter misled on whether doctors can flag mental health issues for gun background checks under new rule

He says doctors not empowered to do so under Obama's new executive actions on guns

Editor’s Note: Ford Vox is a physician specializing in rehabilitation medicine and a journalist. He is a medical analyst for NPR station WABE-FM 90.1 in Atlanta. He writes frequently for CNN Opinion. Follow him on Twitter @FordVox. The opinions expressed in this commentary are solely those of the author.

CNN —  

No, President Obama is not enlisting the nation’s doctors as his henchmen in a plan to deprive the American people of their guns. But misinformation to the contrary is spreading rapidly across social media and conservative websites.

How this happens is a story by itself, involving misleading language from otherwise credible news organizations, a right-wing echo chamber only too happy to amplify them, and, of course, the speed-ramp for speech that is social media – and we’ll get to all this shortly. But first let’s begin with the facts – with what is actually true.

In its new executive actions aimed at stemming gun violence, the Obama administration is now enacting a proposal aimed at improving the federal gun purchase background check system by making more data available to the National Instant Criminal Background Check System (NICS) database – that woefully incomplete database that most gun dealers are supposed to check before they sell you a firearm (more dealers are required to check it under the President’s new action plan).

This reconciles the privacy restrictions of HIPAA with the necessity of sharing some mental health information to maintain public safety.

Back in 2014 Politifact debunked a myth posted on a conservative website (and seized on by gun enthusiasts) that the White House had hatched a plan to require health care providers to “submit medical data to the government” which would then be “used as justification for gun confiscation by the federal government,” in violation of HIPAA .

As Politifact made clear, the proposal didn’t target doctors and other health care professionals, but rather the wide variety of courts, boards, commissions and other legal authorities across all states who are responsible for ruling people incompetent or committing them to mental institutions.

Doctors don’t make these official judgments, though officials will ask for medical opinions when making their determinations.

The proposal doesn’t actually authorize individual doctors and other health care professionals to submit to the National Instant Criminal Background Check System (NICS) database.

Instead, it is legal guidance for state agencies or bodies designated by the states – as well as courts, boards, and commissions that determine whether someone is legally incompetent or should be committed to an institution against their will – to collect and report to NICS on behalf of the state.

This new provision doesn’t affect anything that’s going on in the clinic between you and your physician.

A court, board, commission or other government authority may request a doctor’s professional opinion in a case it is considering. But under the new executive action, doctors are not enjoined – or authorized – to submit information to NICS on their own, without such a request.

If you’re concerned about being committed against your will, and then being blocked from purchasing a gun, you have a reason to be concerned about President Obama’s new measure. But you really have much bigger issues to worry about.

Concerns about violating HIPAA’s strict privacy rules have long stopped authorities in many states from updating the NICS database. But HHS is now explaining how state authorities can voluntarily send their information to the NICS without violating HIPAA.

This week HHS published the proposal as “final rule,” meaning it will become policy, and President Obama announced it on Tuesday. Yet the same false claim from 2014, asserting that the President is enlisting physicians to rat out patients, has appeared again.

How did it reemerge? A report in Politico helped.

Under the headline “Final rule limits HIPAA for gun background checks,” Politico’s subscription arm Politico Pro reported Monday evening about this key feature of the President’s new slate of gun control measures. David Pittman wrote accurately about how the final rule offers a HIPAA-safe mechanism for organizations to submit information to NICS about potentially dangerous individuals adjudicated or held in their institutions.

But when an updated and edited down version of the story was published on “Politico” – the news organization’s free, open-web, and more widely read version – it didn’t specify exactly who the administration is targeting in this rule, and its headline, “Doctors can report some mentally ill patients to FBI under new gun control rule,” pointed a finger in the wrong direction: your doctor.

Brad Dayspring, Politico’s vice president of communications, told me that, “There is no substantive difference between these stories – both are accurate. In fact, both link to the final fifty-six page rule itself including a short summary so that Politico readers had access all pertinent information.” Dayspring explained Politico’s editorial position that “many general readers would have difficulty interpreting” the Politico Pro headline that doesn’t mention doctors.

OK, but the version that appeared on the open-web Politico – with the misleading headline – has so far seen more than 25,300 social media shares by the site’s own measure.

It also left out a key sentence that clarified the article’s headline. This left readers to fill in the gap with their own imaginations. By Tuesday morning many outlets piggybacking on the article were dreaming up conspiracy theories.

One outlet, Investors Business Daily (IBD), declared “ObamaCare Extended to Policing Gun Ownership,” and spun a fanciful hypothetical:

“If you tell your doctor you woke up Monday morning feeling like killing yourself, or that your spouse made you mad enough to reach for your hunting rifle, will that warrant a call to the FBI? Will a federal SWAT team then pounce, just in case you have a gun or two in the house? Such law enforcement overreach is by no means an outlandish scenario.”

Actually, it is.

The widely read Drudge Report picked up Politico’s story as its top link on Tuesday, revising the headline with literal scare quotes for mentally ill, implying the kind of slippery slope IBD imagined: “Doctors can report ‘mentally ill’ patients to FBI under new Obama rule…”

We were off to the races:

The reporting even misled Rep. John Flemming, R-Louisiana, who retweeted the story, adding: “Under Obama’s executive gun-control action, your doctor may report you to the FBI.”

To review: The executive action’s plan doesn’t involve your family doctor, and it doesn’t even pertain to your psychiatrist, unless your psychiatrist also works in an administrative capacity for a public health department or a state mental hospital.

But first you’ll have to have been committed to a mental health facility, and a third party designated by the state, typically a court, will have agreed you are so ill that you need to remain in an institution or are incompetent and require some level of supervision, monitoring and assistance.

Since I’m a physician, the story certainly got me curious: Do I now have the authority and responsibility to report about anyone I’ve treated that could conceivably be a danger to themselves or to the public? So I went to the document itself, but I couldn’t find anything that applied to me.

The Office of Civil Rights of the Department of Health and Human Services has figured out a legal end run around HIPAA that manages to protect patient privacy while supplying NICS with the information it needs.

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Courts, boards, commissions and state mental hospitals with the data can simply submit names to the database without specifying any medical details. Federal investigators will have to do their own digging if that individual tries to buy a gun in the future and decide at that time if blocking the purchase is warranted.

In an email exchange with David Pittman, the Politico Pro reporter, on Tuesday morning I asked how come my interpretation of Obama administration’s rule seemed different from what appeared in the open-web Politico article. Pittman explained that that version is less detailed, given its wider audience and sent me a snippet of the subscriber-only section of his piece which stated:

“But now under the rule, covered entities that can make commitment decisions or that hold the information for the background check purposes are allowed to disclose the information.”

What about the headline, which zeroed in on “doctors” reporting rather than the more vague “entities” the rule talks about? I asked this question on Twitter. “True. But that’s hard to fit in a headline,” David tweeted back.

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At noon on Tuesday Rush Limbaugh started his three-hour show. Calling doctors the “eyes and ears of the regime,” and specifically citing Pittman’s article, Limbaugh bloviated: “Now if your doctor thinks that you’re a wacko, they gotta call the FBI,” and riffed on from there, doing his best to sow as much mistrust in the medical profession as with the President

Rachel Seeger, a public affairs adviser in the HHS Office for Civil Rights, told me that the HHS had made an effort to prevent this misconception. She explained that “the modification is carefully and narrowly tailored to preserve the patient-provider relationship and ensure that individuals are not discouraged from seeking voluntary treatment. … The rule does not apply to most treating providers.”

The media must do its part by supplying the complete who, what, when, where and why – or, as we’ve learned the hard way yet again, people with agendas will fill in their own convenient answers to those questions.

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