Texas: Bill Would Prohibit Doctors from Asking Patients About Guns

patient safety

The current legislative session in Texas shall prove busy for lawmakers as they tackle more than three dozen different bills addressing gun control and restrictions as well as expanding the rights of the law-abiding gun owner. Once such bill to be considered by the 85th Legislature is SB104, sponsored by State Senator Bob Hall (R-Edgewood).

Under Hall’s proposed measure, certain physicians would be prohibited from asking questions regarding firearms. Specifically, SB104 would amend the Texas Occupation Code and prohibit doctors from:

• inquiring into, or asking a patient to disclose, whether a firearm is located or stored on property owned by or under the patient ’s control, including the patient’s home; and
• requiring that information described above be disclosed before providing treatment to the patient.

Doctors who violate the proposed law would be subject to discipline by the Texas Medical Board.

This bill, however, will not apply to psychiatrists.

Last January, the Obama Administration issued a rule change through the Department of Health and Human Services to modify the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule to expressly permit certain HIPAA covered entities, such as doctors, to “disclose to the National Instant Criminal Background Check System (NICS) the identities of individuals who are subject to a Federal ‘mental health prohibitor’ that disqualifies them from shipping, transporting, possessing, or receiving a firearm.” The rule went into effect in February 2016.

Doctors are free to question patients about firearms in the home, gun safety, and safe storage of weapons, even though most doctors lack specific training in such areas. The American Medical Association and 52 other medical groups had sought funding for such training in a written request to the White House on January 8, 2013. In a press conference in response to the letter, Obama said “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 . . .” The rule change was a step in furthering that agenda.

Currently, Florida is the only state that specifically prohibits physicians from inquiring about guns in the home of their patients through a 2011 law (Firearm Owners’ Privacy Act). A group of doctors challenged the constitutionality of the Florida law and an appeals court ruled this past summer that Florida is allowed to ban physicians from talking about guns with their patients. The matter may wind up before the U.S. Supreme Court before all is said and done.

Similar laws have been considered in about a dozen other states. For example, doctors in Montana may not refuse health care for patients who will not answer questions about guns. In Missouri, doctors cannot record information about patient gun ownership unless a doctor believes the information is medically relevant. Minnesota prohibits its exchange, on which private health insurance is sold, from collecting information about gun ownership.

Texas now joins the list of states seeking to prohibit doctors from prying into gun ownership.

If passed, the bill would take effect on September 1, 2017. – by Michael Wisdom, Senior Contributing Editor, Texas & U.S. Law Shield Blog

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