No Obama Executive Order Telling Doctors they can ask about Guns in the Home

On January 16th, 2013, at a press conference, President Obama announced that he would be taking 23 executive actions to reduce gun violence.  There had been much speculation on what the president might do with executive orders.

Representative Stockman from Texas had warned the President about not infringing on the Second Amendment with executive orders.

The President, in his remarks, talked about executive orders, executive actions, and closed his remarks by saying "Thank you. Let's sign these orders."

This has lead to some confusion about what executive orders were signed.  Forbes  listed "The 23 Executive Orders On Gun Safety Signed Today by the President", which would indicate that all of the 23 actions were executive orders.

Action number 16. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes, seems to indicate that the President will sign some document that clarifies what the Affordable Care Act allows doctors to ask their patients about guns.

Poliltico apparently believed that the President signed an executive order to that effect when it stated that:

Obama signed an executive order Wednesday to “[c]larify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes,” part of a package of 23 executive orders on gun violence prevention in response to the massacre in Newtown, Conn.

However, no such executive order was signed on 16 January, 2013, or at any time during 2013.   The list of  executive orders signed in 2013 does not include any that deal with what doctors may ask patients under the provisions of the Affordable Care Act. 

Here are the relevant provisions of the Affordable Care Act:

The Patient Protection and Affordable Care Act, Section 2716, "Prohibition on Discrimination in Favor of Highly Compensated Individuals," page 766, signed into law on Mar. 23, 2010, available at www.thomas.gov, states:

"(c) PROTECTION OF SECOND AMENDMENT GUN RIGHTS.—
(1) WELLNESS AND PREVENTION PROGRAMS.—

A wellness and health promotion activity implemented under subsection (a)(1)(D) may not require the disclosure or collection of any information relating to

(A) the presence or storage of a lawfully possessed firearm or ammunition in the residence or on the property of an individual; or the lawful use, possession, or storage of a firearm or ammunition by an individual.

(2) LIMITATION ON DATA COLLECTION.—None of the authorities provided to the Secretary under the Patient Protection and Affordable Care Act or an amendment made by that Act shall be construed to authorize or may be used for the collection of any information relating to the lawful ownership or possession of a firearm or ammunition;

(B) the lawful use of a firearm or ammunition; or

(C) the lawful storage of a firearm or ammunition.

(3) LIMITATION ON DATABASES OR DATABANKS.—None of the authorities provided to the Secretary under the Patient Protection and Affordable Care Act or an amendment made by that Act shall be construed to authorize or may be used to maintain records of individual ownership or possession of a firearm or ammunition.

(4) LIMITATION ON DETERMINATION OF PREMIUM RATES OR ELIGIBILITY FOR HEALTH INSURANCE.—A premium rate may not be increased, health insurance coverage may not be denied, and a discount, rebate, or reward offered for participation in a wellness program may not be reduced or withheld under any health benefit plan issued pursuant to or in accordance with the Patient Protection and Affordable Care Act or an amendment made by that Act on the basis of, or on reliance upon

(A) the lawful ownership or possession of a firearm or ammunition; or

(B) the lawful use or storage of a firearm or ammunition.

(5) LIMITATION ON DATA COLLECTION REQUIREMENTS FOR INDIVIDUALS.

No individual shall be required to disclose any information under any data collection activity authorized under the Patient Protection and Affordable Care Act or an amendment made by that Act relating to (A) the lawful ownership or possession of a firearm or ammunition; or (B) the lawful use, possession, or storage of a firearm or ammunition.”

It appears clear that doctors may ask about firearms or ammunition, as long as they do not record the information in such a way that it is included in databanks or databases authorized by the Affordable Care Act.  Furthermore, they may not be required to ask such information, nor may patients be required to give such information.

There does not seem to be any Executive Order to this effect, so what did President Obama sign for action item 16?

I thought that perhaps the President might have signed a Presidential Memorandum to clarify the situation.   But the list of Presidential Memorandum does not show any in 2013 that deal with doctors asking about guns in the Affordable Care Act.   There is a Presidential Memorandum from January 16th, 2013 that calls for public health research into the causes and preventions of gun violence, but it does not seem to have anything to do with the Affordable Care Act.

I looked at presidential proclamations.  Proclamations are primarily symbolic actions that have little legal effect.  Still, there was no Presidential Proclamation about doctors asking patients about guns and the Affordable Care Act.  There was a Presidential Proclamation on January 16, 2013 about Religious Freedom Day, but not about doctors and guns.

A PDF file from the White House  Web site, www.whitehouse.gov/ sites/ default/ files/ docs/ wh_now_is_the_time_full.pdf -   contains a hint about what might be happening. On page 9 the following paragraph is found:

• Protect the rights of health care providers to talk to their patients about gun safety:
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.
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. The Administration will
issue guidance clarifying that the Affordable Care Act does not prohibit or otherwise regulate
communication between doctors and patients, including about firearms.

The PDF file is dated 16 January, the same day that President Obama signed his executive actions.

But, where is the guidance that is promised in the paragraph?  All that I can find is  action item 16, which contains far less information than the PDF file, which promises some guidance, sometime in the future.

Perhaps, somewhere in the labyrinthine bowels of the federal bureaucracy, this guidance exists, duly issued and signed by President Obama.    Perhaps, with all the ceremony and pomp given to the signing on 16 January, 2013, the document has already been made public.

If anyone has knowledge of this document, please contact me, so that I can update this article with it and the public can determine what impact it might have on the Affordable Care Act.


©2013 by Dean Weingarten Permission to share granted as long as this notice is included.