Calguns.net  

Home My iTrader Join the NRA Donate to CGSSA Sponsors CGN Google Search
CA Semiauto Ban(AW)ID Flowchart CA Handgun Ban ID Flowchart CA Shotgun Ban ID Flowchart
Go Back   Calguns.net > CONCEALED CARRY/LICENSE TO CARRY > Concealed Carry Discussion
Register FAQ Members List Calendar Mark Forums Read

Concealed Carry Discussion General discussion regarding CCW/LTC in California

Reply
 
Thread Tools Display Modes
  #1  
Old 01-22-2014, 12:46 AM
gtg441y gtg441y is offline
Junior Member
 
Join Date: Jan 2014
Posts: 11
iTrader: 0 / 0%
Default CCW permit questions vs HIPAA

Hello all

On the permit for a CCW in my county, it specifically asks if you are currently or have ever been treated for a mental illness.

The form ends with a legalese statement to the effect of: by signing this form, you admit that the information included is accurate to the best of your knowledge or else it's perjury.

My question for the board is this: is such a question even allowed on forms like this? As far as I understand it, your medical record is protected health information- but how far does that protection go? Are you obligated to share this information with every government agency that demands it of you under threat of perjury?

Furthermore, assuming that you're not on a prohibited person's list due to psych holds (5150 etc), being denied purely on the grounds of having a medical illness seems like fairly blatant discrimination.

Does anyone have experience with this- or knowledge/expertise in this area?
Reply With Quote
  #2  
Old 01-22-2014, 8:40 AM
SARC_Mike SARC_Mike is offline
Senior Member
 
Join Date: Jan 2012
Location: Fresno
Posts: 693
iTrader: 11 / 100%
Default

I am a nurse and I run community health centers. I can only speak for my personal experiences and this is not to be taken as 100% gold.
However, never in my experience have we ever reported any persons mental health state or treatment/evaluation to any party short of workers comp or 5150. Nor have we ever received any request for this type of information from any government entity. I do respond to subpoenas regularly, but these are for lawsuits (personal/auto injury, fraud...etc)
While I would never be stupid enough to say it NEVER will, or can't happen, in my 16 years experience I have never seen any way for it to be known what your health history is.
__________________
On a long enough timeline, the survival rate for everyone drops to zero.
Reply With Quote
  #3  
Old 01-22-2014, 9:40 AM
RickD427's Avatar
RickD427 RickD427 is offline
Veteran Member
 
Join Date: Jan 2007
Location: King County
Posts: 4,103
iTrader: 5 / 100%
Default

Quote:
Originally Posted by gtg441y View Post
Hello all

On the permit for a CCW in my county, it specifically asks if you are currently or have ever been treated for a mental illness.

The form ends with a legalese statement to the effect of: by signing this form, you admit that the information included is accurate to the best of your knowledge or else it's perjury.

My question for the board is this: is such a question even allowed on forms like this? As far as I understand it, your medical record is protected health information- but how far does that protection go? Are you obligated to share this information with every government agency that demands it of you under threat of perjury?

Furthermore, assuming that you're not on a prohibited person's list due to psych holds (5150 etc), being denied purely on the grounds of having a medical illness seems like fairly blatant discrimination.

Does anyone have experience with this- or knowledge/expertise in this area?
First of all, IANAL. No legal advice here. I have worked with HIPAA on several management projects as a LEO. Here's what I've learned from that experience.

In general terms, HIPAA does not make your medical records confidential. It prohibits medical service providers from divulging the contents of your medical records, with a whole bunch of exceptions. There's a big difference between these two things. The biggest difference is once your medical information is "out of the bag", you really cannot put it back. The nurse may get in trouble for spreading your info, but the Channel 7 news guy cannot.

Your Chief of Police, or County Sheriff, is not a "medical service provider." That pretty much puts them outside of HIPAA from the beginning.

Where HIPAA does prohibit medical service providers from releasing information, it attaches a sanction to the provision of the information. There is no prohibition on the request being made for the information.

HIPAA makes some exceptions to the otherwise prohibited release of information where that release is mandated by law, or directed by a court.

You're quite correct that discrimination is a likely result of disclosure. But you also need to remember that the issuing of a CCW is a discriminatory function, and that the law allows very broad discretion to the issuing officials to determine the basis on which they will discriminate between those applications that are granted, and those that are declined. The situation may be ripe for a successful court challenge, or a legislative effort to revise the law, but neither has occurred yet.

Last edited by RickD427; 01-22-2014 at 1:03 PM..
Reply With Quote
  #4  
Old 01-22-2014, 10:41 AM
Dvrjon Dvrjon is offline
Veteran Member
 
Join Date: Nov 2012
Posts: 3,556
iTrader: 0 / 0%
Default

The CCW Application used in your county is a State of California Standard Application mandated for use by every CCW issuing agency in the state. The Attorney General oversees the application, and it has been around for a very long time. (The mental health questions appear on the former 6/99 version of the application.). Since HIPAA was passed in 1996, it's not unreasonable to believe this language is well-vetted in the legal community.

I echo RickD's input.

I spent 16 years in the health care industry and was charged with implementing both enrollment and security aspects of HIPAA for one of the largest healthcare purchasers in California.

1. HIPAA does not preclude anyone from asking you or any covered entity for protected health information. It protects against holders of that information providing it to 3d parties without your consent. One of the exceptions to this prohibition allows providers to disclose your health information to LEO without your authorization (think gunshot wounds; plague infestation, etc.)

2. You have the right to divulge anything in your health information to anyone. HIPAA does not preclude you from doing that. In fact, HIPAA provides the ability for you to authorize the release of your information from a covered entity to a specific receiver.

3. Since the CCW statutes allow an issuing agency to require a psych eval as a condition of issuance, and HIPAA was in place prior to publication of this application language, it would seem the question is acceptable.

Penal Code 26190
Quote:
(f)(1) If psychological testing on the initial application is required by the licensing authority, the license applicant shall be referred to a licensed psychologist used by the licensing authority for the psychological testing of its own employees. The applicant may be charged for the actual cost of the testing in an amount not to exceed one hundred fifty dollars ($150).
(2) Additional psychological testing of an applicant seeking license renewal shall be required only if there is compelling evidence to indicate that a test is necessary. The cost to the applicant for this additional testing shall not exceed one hundred fifty dollars ($150).
Cheers.

JR
Reply With Quote
  #5  
Old 01-22-2014, 11:30 AM
HighLander51 HighLander51 is offline
Banned
 
Join Date: Feb 2010
Location: SoCal
Posts: 5,144
iTrader: 0 / 0%
Default

which county? I don't believe there is a requirement for any mental health agency to automatically report a 5150 to any law enforcement agency, in or out of California. But if that is a question on the application you have to answer it, or it won't be processed. I think it's the same thing as some counties run you thru a shrink wrap.
Reply With Quote
  #6  
Old 01-22-2014, 11:46 AM
RickD427's Avatar
RickD427 RickD427 is offline
Veteran Member
 
Join Date: Jan 2007
Location: King County
Posts: 4,103
iTrader: 5 / 100%
Default

Quote:
Originally Posted by HighLander51 View Post
which county? I don't believe there is a requirement for any mental health agency to automatically report a 5150 to any law enforcement agency, in or out of California. But if that is a question on the application you have to answer it, or it won't be processed. I think it's the same thing as some counties run you thru a shrink wrap.
Highlander,

The requirement is contained in Welfare and Institutions Code section 8105.

Here is the pertinent text:

"(a) The Department of Justice shall request each public and private mental hospital, sanitarium, and institution to submit to the department that information that the department deems necessary to identify those persons who are within subdivision (a) of Section 8100, in order to carry out its duties in relation to firearms, destructive devices, and explosives.

(b) Upon request of the Department of Justice pursuant to subdivision (a), each public and private mental hospital, sanitarium, and institution shall submit to the department that information which the department deems necessary to identify those persons who are within subdivision (a) of Section 8100, in order to carry out its duties in relation to firearms, destructive devices, and explosives.
(c) A licensed psychotherapist shall report to a local law enforcement agency, within 24 hours, in a manner prescribed by the Department of Justice, the identity of a person subject to subdivision (b) of Section 8100. Upon receipt of the report, the local law enforcement agency, on a form prescribed by the Department of Justice, shall notify the department electronically, within 24 hours, in a manner prescribed by the department, of the person who is subject to subdivision (b) of Section 8100."
Reply With Quote
  #7  
Old 01-22-2014, 12:57 PM
seo seo is offline
Member
 
Join Date: Jun 2013
Posts: 259
iTrader: 0 / 0%
Default

Quote:
Originally Posted by gtg441y View Post
Hello all

On the permit for a CCW in my county, it specifically asks if you are currently or have ever been treated for a mental illness.

The form ends with a legalese statement to the effect of: by signing this form, you admit that the information included is accurate to the best of your knowledge or else it's perjury.

My question for the board is this: is such a question even allowed on forms like this? As far as I understand it, your medical record is protected health information- but how far does that protection go? Are you obligated to share this information with every government agency that demands it of you under threat of perjury?

Furthermore, assuming that you're not on a prohibited person's list due to psych holds (5150 etc), being denied purely on the grounds of having a medical illness seems like fairly blatant discrimination.

Does anyone have experience with this- or knowledge/expertise in this area?
You are not being required or obligated to provide them this information. They just won't give you your CCW if you don't. Its your choice.

At least that is how they see it.
Reply With Quote
  #8  
Old 01-22-2014, 1:19 PM
HighLander51 HighLander51 is offline
Banned
 
Join Date: Feb 2010
Location: SoCal
Posts: 5,144
iTrader: 0 / 0%
Default

RickD427, ok, I didn't they had to. Question, what if they applicant was 5150'd out of state, does that get reported to CA LEO?
Reply With Quote
  #9  
Old 01-22-2014, 2:03 PM
Librarian's Avatar
Librarian Librarian is offline
Super Moderator
CGN Contributor - Lifetime
 
Join Date: Oct 2005
Location: Concord
Posts: 33,592
iTrader: 4 / 100%
Blog Entries: 6
Default

Quote:
Originally Posted by HighLander51 View Post
RickD427, ok, I didn't they had to. Question, what if they applicant was 5150'd out of state, does that get reported to CA LEO?
Probably not. Involuntary psych evals do not seem to be reported anywhere as a standard. That's one of the complaints about NICS and other background checks - the healthcare databases and criminal databases do not communicate with one another. Mostly I see that as a 'feature', but there seem to have been incidents where it may have been a 'bug'.
__________________
Calguns Wiki, Magazine Qs, Knife laws

Unless there is some way to amend a bill so you would support it,
the details do not matter until the Governor signs or allows the bill to become law.

Ask CA law questions in the How CA Laws Apply to/Affect Me Forum
- most questions that start 'Is it legal ...' go there.

Not a lawyer, just Some Guy On The Interwebs.


Reply With Quote
  #10  
Old 01-22-2014, 4:10 PM
RickD427's Avatar
RickD427 RickD427 is offline
Veteran Member
 
Join Date: Jan 2007
Location: King County
Posts: 4,103
iTrader: 5 / 100%
Default

Quote:
Originally Posted by HighLander51 View Post
RickD427, ok, I didn't they had to. Question, what if they applicant was 5150'd out of state, does that get reported to CA LEO?
I'm with Librarian on this one.

WIC 5150 is a California state statute. You really can't have an out-of-state 5150, although many other states have similar statutes. There's no reporting directly to California from other states that I'm aware of.

A key thing about 5150 is that a lay person, not necessarily having any expertise in psychiatry is making a determination on whether a person is detained. A qualified medical professional at the receiving facility can release a person is the detention isn't justified, but they're also relying on the statements of the detaining officer to make their determination.

Federal law (18 USC 922) imposes a lifetime disability for folks who are "adjudicated" as being mentally defective (I know that the term "defective" may be offensive to some, but its the term used in the law). There's a little more protection for the individual because of the adjudication requirement. However, the reporting of folks who have been adjudicated is very spotty and inconsistent. The NICS system (federal) is responsible for tracking folks with 18 USC 922 disabilities, but that system probably is missing more records than it maintains.

Information in NICS can be accessed by California LEOs. If a person was "adjudicated" as mentally defective in another state, and the information were reported to NICS, then it could be accessed by a California LEO.
Reply With Quote
  #11  
Old 01-22-2014, 5:28 PM
gtg441y gtg441y is offline
Junior Member
 
Join Date: Jan 2014
Posts: 11
iTrader: 0 / 0%
Default

Interesting to see the comments.

For what it's worth, this question wasn't pertaining to 5150 or 5250. I completely understand that detainment for psychiatric issues causes a hang up. This is the second time I've encountered a government form (in California) which did not ask about hospitalizations/involuntary treatment and instead demanded to know about any treatment.

The story unfolds:

The Sacramento Co Sheriff's office denied a CCW permit with the following statement: "Your request for issuance of a Concealed Weapons Permit from the Sacramento County Sheriff's Department has been denied. Due to concerns regarding psychiatric medications you are currently taking, the sheriff does not find you to be a good candidate to be the recipient of a Concealed Weapons Permit."

Now, as a psychiatrist, this really rubs me the wrong way.

The individual in question is a well respected professional with no history of violence, improper conduct, substance abuse... well anything flag raising really. The denial was issued because an individual was taking medication. Since when did taking medication become a bad thing?

Either way, psychiatric conditions are still recognized medical illnesses and, while I'm no legal eagle, I'm sure that buried in the ADA or some other bill is a provision that bars such blatant discrimination on the basis of a medical illness.

Can anyone point me in the right direction for information on this one?
Reply With Quote
  #12  
Old 01-22-2014, 5:54 PM
HighLander51 HighLander51 is offline
Banned
 
Join Date: Feb 2010
Location: SoCal
Posts: 5,144
iTrader: 0 / 0%
Default

Quote:
Originally Posted by RickD427 View Post
There's no reporting directly to California from other states that I'm aware of.
That is what I was referring to. Some news article said there was no requirement to report from out of state regarding some shooting somewhere, I think Washington shall issue CCW shooting.
Reply With Quote
  #13  
Old 01-22-2014, 5:58 PM
HighLander51 HighLander51 is offline
Banned
 
Join Date: Feb 2010
Location: SoCal
Posts: 5,144
iTrader: 0 / 0%
Default

gtg441y, your only option is to try to reason with unreasonable people (violent criminals), which usually doesn't work well without the application of deadly force.. That they completely understand.
Reply With Quote
  #14  
Old 01-23-2014, 1:14 PM
Best sale's Avatar
Best sale Best sale is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Oct 2012
Location: The land of the Free ...
Posts: 1,190
iTrader: 27 / 97%
Default

Quote:
Originally Posted by gtg441y View Post
Interesting to see the comments.

The story unfolds:
Due to concerns regarding psychiatric medications you are currently taking, the sheriff does not find you to be a good candidate to be the recipient of a Concealed Weapons Permit."

Now, as a psychiatrist, this really rubs me the wrong way.
The denial was issued because an individual was taking medication. Since when did taking medication become a bad thing?

Either way, psychiatric conditions are still recognized medical illnesses and, while I'm no legal eagle, I'm sure that buried in the ADA or some other bill is a provision that bars such blatant discrimination on the basis of a medical illness.
Are we talking about Gun ownership and Rights ????, strange !!!! I guess present day democratic America has long make that crystal clear...... Btw, welcome to the struggle and a glimpse of Our side of the fence.....
__________________
Reply With Quote
  #15  
Old 01-23-2014, 1:43 PM
e90bmw e90bmw is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: May 2013
Location: Northern Ca.
Posts: 1,264
iTrader: 0 / 0%
Default

When you DROS a gun you are asked if you are mentally ill.
If you go to get a CCW they are asking if you are mentally ill, right?
Presumably you could have become mentally ill between the time you purchased said gun and applying for the CCW.

I just don't get the problem.

As far as being on meds for a psychiatric condition, if said person stops taking medication, do they become a danger to themselves or others?
Reply With Quote
  #16  
Old 01-23-2014, 2:55 PM
Dvrjon Dvrjon is offline
Veteran Member
 
Join Date: Nov 2012
Posts: 3,556
iTrader: 0 / 0%
Default

Quote:
Originally Posted by gtg441y View Post
Interesting to see the comments.

For what it's worth, this question wasn't pertaining to 5150 or 5250. I completely understand that detainment for psychiatric issues causes a hang up. This is the second time I've encountered a government form (in California) which did not ask about hospitalizations/involuntary treatment and instead demanded to know about any treatment.

The story unfolds:

The Sacramento Co Sheriff's office denied a CCW permit with the following statement: "Your request for issuance of a Concealed Weapons Permit from the Sacramento County Sheriff's Department has been denied. Due to concerns regarding psychiatric medications you are currently taking, the sheriff does not find you to be a good candidate to be the recipient of a Concealed Weapons Permit."

Now, as a psychiatrist, this really rubs me the wrong way.

The individual in question is a well respected professional with no history of violence, improper conduct, substance abuse... well anything flag raising really. The denial was issued because an individual was taking medication. Since when did taking medication become a bad thing?

Either way, psychiatric conditions are still recognized medical illnesses and, while I'm no legal eagle, I'm sure that buried in the ADA or some other bill is a provision that bars such blatant discrimination on the basis of a medical illness.

Can anyone point me in the right direction for information on this one?
This isn't about ADA.

The Penal Code says the Sheriff MAY issue. He doesn't have to.

The applicant has 30 days to submit an appeal to denial. It must be in writing and detail why the denial should be overturned. It would seem to me that the input of a professional in the field might hold some sway.

If you are that attending professional, this may require you, in support of the appeal, to assert to the Sheriff that the applicant is not a danger to society at large and can be trusted to carry CCW. That may be persuasive.

Whether you will put your professional standing at stake and do that is a question to ask yourself. If you won't support, then don't try to force the Sheriff to support something you won't.

If you are willing, then support the appeal and see where it goes.

Cheers.

JR
Reply With Quote
  #17  
Old 01-23-2014, 8:05 PM
gtg441y gtg441y is offline
Junior Member
 
Join Date: Jan 2014
Posts: 11
iTrader: 0 / 0%
Default

Quote:
Originally Posted by Dvrjon View Post
This isn't about ADA.

The Penal Code says the Sheriff MAY issue. He doesn't have to.
If the sheriff had cited any other reason for not issuing, I wouldn't have batted an eye. "I didn't like the way he looked at me". Fine. That's a dumb argument, but that's you prerogative. In this particular instance, an individual is being treated differently because of a recognized medical condition.

There were no complaints against his character. No justification other than he is being treated for a medical illness. What if [purely hypothetical, please don't flame me] the sheriff had said "no, because you're a low SES minority." There would be a lawsuit on the sheriff's desk the next day.

So yes, the sheriff "may" issue. If they sheriff just said "no one can have them", I'd vigorously disagree but that would be all. But in this instance, the sheriff is dividing people into groups based on medical conditions. It's pure discrimination and in our politically correct society, I cannot believe that we do not have laws in place to prevent this or provide legal recourse.
Reply With Quote
  #18  
Old 01-23-2014, 8:20 PM
Off the Roster's Avatar
Off the Roster Off the Roster is offline
Senior Member
 
Join Date: Aug 2013
Posts: 2,363
iTrader: 1 / 100%
Default

Quote:
Originally Posted by gtg441y View Post
In this particular instance, an individual is being treated differently because of a recognized medical condition.
perhaps it is the medication and not the condition.

Many psychiatric medicines have side effects that far worse than the reason why the medication is prescribed in the first place. if a drug manufacturer has to disclose: "Tell your doctor right away if you or your family/caregiver notice any unusual/sudden changes in your mood, thoughts, or behavior including signs of depression, suicidal thoughts/attempts, thoughts about harming yourself..."

it is going to be taken into account on a CCW app as well.
Reply With Quote
  #19  
Old 01-24-2014, 11:09 AM
Dvrjon Dvrjon is offline
Veteran Member
 
Join Date: Nov 2012
Posts: 3,556
iTrader: 0 / 0%
Default

(Full Disclosure: GTG441y and I have exchanged a PM on this issue. Nothing confidential was passed between us, but I will make this response without reference to any information in that PM.)

I don't agree with you.
Quote:
Originally Posted by gtg441y View Post
If the sheriff had cited any other reason for not issuing, I wouldn't have batted an eye. "I didn't like the way he looked at me". Fine. That's a dumb argument, but that's you prerogative.
No, that's arbitrary and capricious and can be challenged on its face.

Quote:
Originally Posted by gtg441y View Post
In this particular instance, an individual is being treated differently because of a recognized medical condition.
Let's be a bit more clear. I don't know what the applicant is being treated for, but this is not the "recognized medical condition" of a broken hand, or even a birth defect of withered limb. This is a recognized medical condition related to the historical mental health (whatever that may mean) of the applicant.

Quote:
Originally Posted by gtg441y View Post
There were no complaints against his character. No justification other than he is being treated for a medical illness. What if [purely hypothetical, please don't flame me] the sheriff had said "no, because you're a low SES minority." There would be a lawsuit on the sheriff's desk the next day.
You are willfully comparing an environmental issue (socio-economic status) to an organic medical condition. I'm a layman, but I know that's a false argument. On its face, the analogy fails without information that SES minorities are highly unstable (not proven) or the applicant's medical (mental health) condition is not unstable.

Quote:
Originally Posted by gtg441y View Post
So yes, the sheriff "may" issue. If they sheriff just said "no one can have them", I'd vigorously disagree but that would be all. But in this instance, the sheriff is dividing people into groups based on medical conditions. It's pure discrimination and in our politically correct society, I cannot believe that we do not have laws in place to prevent this or provide legal recourse.
It is discrimination. That's what decisions are made upon. The question is whether or not the discrimination is warranted or simply arbitrary. The Sheriff seems to be evaluating each applicant on an individual basis, using a whole person concept.

Chickshooter makes a good observation on the meds, and it interfaces with the following:

A couple of considerations, none of which requires a response:
1. One of the basic conditions of issuance is to not be under the influence of drugs when carrying. Does the medical condition require medication to keep the applicant from being "episodic" (if there is such a term).
2. If the Sheriff allows concealed carry while under prescription meds for medical conditions related to mental health, where does it stop? Marijuana? Methadone?
3. If the applicant is "normal" while on his meds, what happens if he stops taking them? For example, if the medical condition is depression (and I don't know that it is) what happens on the day the meds are missed and the applicant becomes depressed with a loaded handgun on his belt?

I don't have the answers to these, but should the Sheriff issue to this individual, and an event occurs, I can guarantee you that the "politically correct" society you cite will destroy him. And then "may" issue will become "not a chance".

A fundamental question I posed to you is left unanswered. Would you stake your professional reputation on this individual not ever being a threat to society if he was given a CCW? If you won't say, "Yes", then you are doing exactly what the Sheriff is doing. Only you need to know that answer.

And the answer is not in the ADA.

Best.

JR

Last edited by Dvrjon; 01-24-2014 at 11:46 AM..
Reply With Quote
  #20  
Old 01-24-2014, 11:49 AM
glockman19's Avatar
glockman19 glockman19 is offline
Calguns Addict
 
Join Date: Jun 2007
Posts: 9,969
iTrader: 18 / 100%
Default

As a 26 year insurance broker, I submit the applications, ask all the personal questions, am paid a monthly commission on the business and any time a client asks me to do something for them regarding provided medical service, I need a release from the client/patient.
I can't see the question as a violation of HIPAA but the sharing of the info from me or the provider requires a release form be signed or a soupena served.
Reply With Quote
  #21  
Old 01-24-2014, 3:50 PM
b_madeiros b_madeiros is offline
Member
 
Join Date: Aug 2012
Posts: 121
iTrader: 2 / 100%
Default

some people are 5150 by police to a mental facility i believe this would b a public record as such the police filed it as dropping off the person. The police, RN, MD have the authority to a 5150 hold on any such person that fits that criteria. Hospitals for medical emergencies usually do not DX mental disorders but if u came in to the ER for cutting ur wrists im sure you would be Dx by a phych doc before u were discharged.
Reply With Quote
Reply

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump



All times are GMT -8. The time now is 5:50 AM.




Powered by vBulletin® Version 3.8.9
Copyright ©2000 - 2016, vBulletin Solutions, Inc.
Proudly hosted by GeoVario the Premier 2A host.
Calguns.net, the 'Calguns' name and all associated variants and logos are ® Trademark and © Copyright 2002-2016, Calguns.net an Incorporated Company All Rights Reserved.