Obamacare Gun Provision
U.S. Senate Majority Leader Harry Reid (D-NV) wrote the now famous Obamacare gun provision which he inserted into PL 111-148 with the help of NRA President Wayne LaPierre. Why would a Democrat, Senator Reid, do this? When Senator Reid was up for re-election a couple years ago, he ( a well known gun advocate) contacted Mr. LaPierre to help him get gun owners to vote for him.
Obamacare Gun Provision Language
The provision that Senator Reid authored is found in Section 10101 Subsection 2716 of PL 111-148 (Patient Protection and Affordable Care Act). Below is the actual language of the provision.
‘(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
‘(B) 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 Protec- tion 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—
‘‘(A) 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 DATA BANKS.—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 ammuni- tion.
‘‘(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 amend- ment 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.’’.
CONGRESSIONAL RESEARCH SERVICE DOCUMENT ON GUN PROVISION
Patient Protection and Affordable Care Act and Firearms
The 111th Congress included language in the Patient Protection and Affordable Care Act (PPACA; P.L. 111-148) that prohibits data collection on gun ownership or higher premiums for gun owners under wellness program provisions. The catalyst for this language was an “action alert” that Gun Owners of America (GOA) sent out, urging its membership to oppose a Senate health care reform proposal released on November 18, 2009. The GOA argued that the Senate proposal, along with other enacted provisions of law, would have required doctors to provide “gun-related health data”to a computerized national health information network.157 With such information, the GOA maintained that the federal government would deny individuals the ability to obtain a firearm or firearms permit. Of particular concern for the GOA were mental health records. Another concern raised by the GOA was the possibility that insurance providers under the Senate proposal would have been required or prompted to raise premiums for persons who exhibited arguably “unhealthy behaviors,” such as firearms ownership.
Although the Senate proposal included provisions to amend the Health Insurance Portability and Accountability Act (HIPAA) that addressed electronic data transaction standards for national health information sharing purposes to facilitate eligibility determinations and health care plan enrollments, it did not include any provisions that would have directly required the national collection of “gun-related health data.” Without a clear directive, it is debatable whether the Department of Health and Human Services (HHS) would have undertaken such data collection on firearms ownership and possession given other provisions in current law, albeit in different statutory contexts, that prohibit the establishment of a registry of privately held firearms or firearms owners.158 Dr. David Blumenthal, the National Coordinator for Health Information Technology at HHS, said that the current system does not include a database into which such information could be fed, nor are there plans to create one.159 Blumenthal added that “we don’t want to do it and it’s not authorized.”160
Nor did the Senate proposal include any provisions that would have required or prompted insurance providers to raise premiums on gun owners. On the other hand, the Senate legislation did include provisions that would have codified and amended HIPAA wellness program provisions that would have addressed employer-based incentives for healthy behavior to reduce health care costs. Arguably, these provisions would not have precluded the Secretary of Health and Human Services from promulgating regulations that addressed risks associated with firearms ownership, possession, use, and storage. However, such regulations, if proposed, would have likely been tested in administrative and judicial review as to their impact on Second Amendment rights. Nonetheless, Senate legislators included new language in their Patient Protection and Affordable Care proposal, which the Senate passed as an amendment to H.R. 3590 on December 24, 2009.161
The Senate language, which was included in P.L. 111-148, prohibits any wellness and health promotion activity sponsored under the act’s HIPAA amendments from requiring the disclosure or collection of any information about 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. The language also states that nothing in the bill would be construed to authorize any data collection on the lawful ownership, possession, use, or storage of firearms or ammunition, or to maintain records on individual ownership.
Obamacare Gun Provision by Senator Harry Reid
The gun provision in PL 111-148 (aka Obamacare) was authored by U.S. Senate Majority Leader Harry Reid (D-NV). There is a lot of talk in the media now about this provision and about how President Obama might use an executive order to fix this issue. Due to Senator Reid’s provision, President Obama is now prohibited from making an executive order on this matter.