As White House talks turkey on health care …

GOA Responds to administration attacks

November 25, 2009

The White House is pulling out all the stops to pass ObamaCare, including an attack on Gun Owners of America and the Second Amendment.

Unable to pass a bill that is openly hostile to millions of gun owners, the President and his anti-gun allies are forced to try to attack us through deception.

On the official White House blog, deputy communications director Dan Pfeiffer denied that the health care bill would affect gun owners. After all, he writes, “there is no mention [of] ‘gun-related health data’ or anything like it anywhere in either the Senate or the House bills.”

Well, unlike so many in Congress, GOA attorneys have actually read the bills, something they have been doing since before Mr. Pfeiffer was born. 

So, how would this bill attack gun rights?

First of all, the fact that the bills do not mention the words “gun related health data” is meaningless.  Those who know even a little bit about gun law understand the increasing use of statutes which do not mention guns – and common law which was not intended to apply to them – in order to vent hatred for the Second Amendment.

For example, within the past year, the federal district court for the District of Columbia used the National Environmental Policy Act (NEPA) to overturn Bush regulations involving guns in parks. NEPA did not purport to apply to guns.

Increasingly, zoning ordinances are being used to put gun ranges and gun dealers out of business. These ordinances do not mention guns.

Thirty-five jurisdictions have brought lawsuits to try to put gun manufacturers out of business, arguing negligence, product defect, and nuisance law which was not previously thought to apply to guns.

And, over the last decade, veterans suffering from PTSD have been denied the right to purchase a gun.  This was not supposed to happen when the Brady Law was enacted in 1994, but that did not keep Clinton’s Department of Veterans Affairs (VA) from using the law to disarm thousands upon thousands of veterans, without any due process.

Turning to what is written in the health care bill, section 1104 would give the Secretary of Health and Human Services (currently anti-gunner Kathleen Sebelius) broad authority to promulgate rules with respect to “electronic standards.” Subsection (b) (2), for example, amends the Social Security Act to require the Secretary to “adopt a simple set of operating rules … with the goal of creating as much uniformity in the implementation of the electronic standards as possible.” The same section goes on to require health plans to certify, in writing, “that the data and information systems for such plans are in compliance with any applicable standards …” It goes on to provide that a health plan is not in compliance unless it “demonstrates to the Secretary that the plan conducts the electronic transactions … in a manner that fully complies with the regulations of the Secretary … “

Furthermore, anyone who provides services to a provider must comply as well.  Again, the section requires health plans to certify to the Secretary “in such form as the Secretary may require, … that the data and information systems for such plan are in compliance with any applicable revised standards and associated operating rules … ” The Secretary is authorized to conduct “periodic audits” to insure this is so, and substantial penalties are provided for.

What health-related “gun” data do we fear would be required to be submitted under these rules?  Increasingly, protocols are requiring that kids (and adults) be asked by physicians about loaded firearms in the household. A keyword search by BATF of a federal database created by section 13001 of the stimulus bill – but enforced by the Reid bill – could produce something pretty close to a national gun registry.

In addition, between 115,000 and 150,000 veterans have had their gun rights permanently taken away from them because the VA has appointed a financial guardian for them when they received counseling for common illnesses such as post-traumatic stress disorder – and all of this with no due process or trial in a court of law. Under BATFE regulations promulgated during the Clinton administration, a diagnosis by a psychiatrist in connection with a government program (such as the Education of All Handicapped Children Act, Medicare, etc.) is sufficient to declare the person a “prohibited person” under 18 U.S.C. 922(g) (4).

Hence, BATFE could similarly take the position that a finding of Alzheimer’s, PTSD, or ADHD should result in the loss of gun rights. And, under the Reid bill, this information could be obtained by BATFE under a keyword search of a federal database.

Incidentally, HIPAA’s privacy protections do not apply to law enforcement agencies like BATFE.

Pfeiffer also writes: “NOTHING IN THE SENATE HEALTH REFORM BILL WOULD LEAD TO HIGHER PREMIUMS FOR GUN OWNERS … Section 2717 section [sic] … specifically lists what types of programs would be involved – such as smoking cessation, physical fitness, nutrition, heart disease prevention …” 

Well, as any lawyer would know, that list in section 2717 is “inclusive,” but is not “exclusive.”
Section 1201 of the bill (inserting section 2705 into the Public Health Service Act) creates “wellness” programs which allow consideration of behavioral issues in setting premiums and, presumably, determining activities which are so dangerous that coverage might be suspended. 

The definition of “wellness” includes some very broad issues, including obesity and “lifestyle.”

But even these broad categories are not exclusive and do not prevent, for example, the consideration of firearms ownership, as State Farm and Prudential have already, on some occasions, done.

Section 1201 specifically prevents consideration of the health of a person for purposes of setting rates, but, for any other “health status factor,” premiums can vary up to 30%, which may be increased to 50% under the discretion of the HHS Secretary. A “reward may be in the form of a discount or rebate of a premium or contribution, a waiver of all or part of a cost-sharing mechanism (such as deductibles, copayments, or coinsurance), the absence of a surcharge, or the value of a benefit that would otherwise not be provided under the plan.”  A “wellness” program qualifies under this section if it “has a reasonable chance of improving the health of … participating individuals.”

One of the more intriguing aspects about the copious fraud which is being promulgated on behalf of ObamaCare is that the liars almost always accompany their deceit with a heaping dose of arrogance.

We have dealt with these self-appointed “experts” before. “Politifact” [sic] called us to assert that only age, family size, and location could be used to set premiums. When we blew their theory out of the water over the phone, using the previous week’s Washington Post as our source, they jettisoned their phony argument and attacked us on other grounds, without giving us an opportunity to respond.

The Obama administration and congressional Democrats have spent the last several months lying to us, trying to defraud us, and working to take away our constitutional rights.  GOA will continue to oppose ObamaCare – as well as any similar plan to slip gun control through the back door.