News Column

Obama Order Meant to Clear Up NRA-backed Language in Health-care Law

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Among the 23 gun-related executive orders issued by President Barack Obama last week was one clearing up confusion about an NRA-backed provision that had been tucked into the president's signature policy achievement, the Affordable Care Act.

The "Protection of Second Amendment Gun Rights" provision, which begins on page 19 of the voluminous health care act known as Obamacare, bans doctors from aggregating data about patients' gun use and bars insurance companies that participate in health care exchanges from charging different premiums for gun owners.

The inclusion of the measure in the president's key piece of legislation exemplifies the broad reach of the National Rifle Association and foreshadows the difficulty Obama will face in getting Congress, and not necessarily just the Republican-controlled House, to pass any significant gun control legislation.

The sponsor of the last-minute gun rights amendment to the health care law was Senate Majority Leader Harry Reid, a veteran Democratic politician from Nevada with a "B" rating from the NRA.

The language only recently came to the attention of many doctors and public health advocates, who have expressed the most concern about the part that bars them from creating databases with information about whether their patients own guns.

That's the part that Obama's executive order clarifies. The order will "protect the rights of health care providers to talk to their patients about gun safety," according to a fact sheet distributed by the White House.

"Doctors and other health care providers also need to be able to ask about firearms in their patients' homes and safe storage of those firearms, especially if their patients show signs of certain mental illnesses or if they have a young child or mentally ill family member at home," the fact sheet reads. "Some have incorrectly claimed that language in the Affordable Care Act prohibits doctors from asking their patients about guns and gun safety. Medical groups also continue to fight against state laws attempting to ban doctors from asking these questions."

There was "some confusion about the language" in the law and the Obama administration wanted "to clarify that it doesn't prohibit doctors from talking with their patients about health care issues, including guns," a White House source said. "We're clearing that up for doctors."

Late last month, a group of health care advocates including the American Academy of Pediatrics sent a harshly worded letter to the Obama administration saying that "pediatric advocates vehemently reject" the provision barring health care providers from collecting and housing information regarding the presence of firearms in the home.

Kansas City pediatrician Denise Dowd, who authored the AAP's statement on firearm injury protection, said she was caught off-guard by the NRA-backed language in the federal law.

"I didn't underestimate the political power that the proponents of the NRA have, but I was a little surprised to see it in there," Dowd said. "It was done at the 11th hour. It was done after the ACA was vetted through the medical societies. It's another example of the NRA insinuating itself into whatever (it) can. What other product got into the Affordable Care Act? Cars? Swimming pools? Those are all things we talk about that are dangers to kids."

Although Dowd said it is clear to her that the law does not prevent discussions about guns, she said it was necessary that Obama set the record straight because the language gave some doctors pause.

"That may well have been the intention of the people that forced this into the act," she said. "We know darn well what the effect is going to be on the people in the trenches. Once they hear about it they're going to think they can't even ask about it. It creates fear and radioactivity around the subject."

Although the federal law does not prohibit discussions about guns, the NRA successfully pushed through a Florida law that did just that. A federal judge has since blocked the law, but the state is appealing.

Under the "Firearm Ownership Privacy Act," passed by the Florida Legislature in 2011, Florida physicians and other health care professionals faced fines and the loss of their licenses if they asked patients about guns in the home, "unless the practitioner in good faith believes the information is relevant to the patient's medical care or safety or the safety of others." The law also imposed sanctions if doctors "unnecessarily harass a patient about firearm ownership."

The Florida chapter of the American Academy of Pediatricians and other doctor groups, including the Palm Beach County Medical Society, sued the state, arguing that what they called the "physician gag" law prevented doctors from doing their job.

U.S. District Judge Marcia Cooke agreed, finding that the law in no way affects Second Amendment rights to bear arms but unconstitutionally violates doctors' First Amendment rights to freedom of speech.

"This law chills practitioners' speech in a way that impairs the provision of medical care and may ultimately harm the patient," Cooke wrote in a 25-page ruling in July. "The state, through this law, inserts itself in the doctor-patient relationship, prohibiting and burdening speech necessary to the proper practice of preventive medicine, thereby preventing patients from receiving truthful, non-misleading information. ... This it cannot do."

Gov. Rick Scott, a lifetime NRA member who signed the act into law, appealed Cooke's decision and the case is now under review.

The NRA wanted the language included in the federal law to prevent any registries of gun owners and to guarantee that gun owners would not pay higher premiums or be denied health insurance, an NRA source said.

"We were trying to protect gun owners from discrimination. We had many, many letters on file and many e-mails from members who were denied coverage on not only health insurance but home owner's insurance because they had guns," the source said.

But Louis St. Petery, a Tallahassee pediatrician and outspoken critic of Florida's law, said he and others feared the language was a backdoor attempt by the NRA to duplicate on a national level what they had achieved in Florida.

"I could not believe that it was in there and that it got passed without any of us who have been involved in that issue being aware of it," St. Petery said.

Bruce Manheim of the Washington-based law firm Ropes & Gray, who represents the Florida pediatricians in the lawsuit against Scott and the state, said he alerted St. Petery to the language last year.

"I was thinking we'd done this case in Florida and it just struck me that we should try to ensure physicians' speech at the federal level to the extent that that provision could be construed to bar that speech," Manheim said.

The health care provision is "the tip of the iceberg in terms of the number of obscure provisions the NRA has tucked away in numerous statutes," said Manheim, who represented the Brady Campaign Against Gun Violence in a lawsuit against President George W. Bush's administration. "You see it both at the federal level and at the state level."

Obama has made gun control one of his priorities in the aftermath of the Sandy Hook Elementary school massacre in which shooter Adam Lanza killed 20 schoolchildren and six adults. Lanza also killed his mother and himself.

"There's obviously an entirely different benefit to these discussions, which go to whether people with mental health issues have access to guns. How's a doctor ever going to know that if they don't have that conversation with their patient?" Manheim said.