In the closing days of his administration, President Obama yet again decided that he and only he, has the wisdom, might, and intelligence to lead us. He has used his pen to create yet another executive directive telling Americans what is right and good.
I only want to address one part of the executive action he committed. His idea:
“Remove unnecessary legal barriers preventing States from reporting relevant information to the background check system. Although States generally report criminal history information to NICS, many continue to report little information about individuals who are prohibited by Federal law from possessing or receiving a gun for specific mental health reasons. Some State officials raised concerns about whether such reporting would be precluded by the Privacy Rule issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Today, the Department of Health and Human Services issued a final rule expressly permitting certain HIPAA covered entities to provide to the NICS limited demographic and other necessary information about these individuals.”
There is a reason that the states so correctly do not report information under HIPPA in this regard. If you look at the exact text in the CFR, you will see that it is taking about information relevant to a legitimate law enforcement inquiry. A background does not fit this criteria because (f) Standard: Disclosures for law enforcement purposes, is discussing information pursuant to ongoing investigations pertaining to specific cases.
It does not cover a background check, which is what Obama wants to change.
CFR 45 §164.512
(f) Standard: Disclosures for law enforcement purposes. A covered entity may disclose protected health information for a law enforcement purpose to a law enforcement official if the conditions in paragraphs (f)(1) through (f)(6) of this section are met, as applicable.
(C) An administrative request, including an administrative subpoena or summons, a civil or an authorized investigative demand, or similar process authorized under law, provided that:
(1) The information sought is relevant and material to a legitimate law enforcement inquiry;
(2) The request is specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information is sought; and
(3) De-identified information could not reasonably be used.
Why change it? The idea seems plausible, which is why many Americans are so accepting. However they are missing one of the implications. The National Instant Criminal Background Check System (NICS), exists to validate that no one, ALREADY CONVICTED in a court of law, is allowed to legally purchase a firearm.
By making this change, individuals who have committed no criminal acts are placed in the same category. In other words, if you sought care for mental health issues, you are now guilty of endangering society whether or not you have actually done anything or not.
This to my mind brings this directive directly against the 14th Amendment because the government is deliberately creating the conditions to not only violate an individual’s privacy, but to also deprive them of their rights under the 2nd Amendment, before they have committed any act that might be considered harmful or criminal.
People have gone to seek healthcare and are deprived, perhaps permanently, of their rights in the name of public safety. There are several problems with this.
- Mental health is a difficult topic all by itself and it contains enough stigmas that inhibit individuals from seeking care. Now the government intends, since this decision has already been made, to make it worse. They also freely admit that there is a stigma and that persons suffering from mental health issues are more likely to be victims, but they are doing it anyway.
- There is no standard that can be ascribed to the potential threat. They can make the words, but each mental health professional will make an individual determination base on individual value systems. There will be no uniformity. If the patient happens to see a mental health provider that doesn’t like guns, nothing prevents them from stating the individual is a danger; whether they are or not.
- There is a decided lack of redress built into this plan. Mental health issues are not necessarily permanent. However once you are labeled, how do you get your rights back? And at what cost?
- This is one change made with a pen instead of action by Congress. The Office of the President is not the seat of a monarch and does not have the power of one. And yet he continues to rule America as if he is and people allow their liberty to be eroded because it seems like a good idea.
Millions of Americans are being affected by the actions of an infinitesimal fraction of the population. The 24 hour news cycle guarantees nationwide coverage on the most imbecilic act and the perception that change is needed is force fed down our throats.
Change is not necessary. Especially change that opens private health information on the chance that someone might commit a crime. Our Constitution and judicial system are not supposed to work that way and we need to stop putting up with it.
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