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Concealed Carry Discussion General discussion regarding CCW/LTC in California |
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#1
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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? |
#2
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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.
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On a long enough timeline, the survival rate for everyone drops to zero. |
#3
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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.. |
#4
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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:
JR |
#5
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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.
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#6
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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. |
#7
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At least that is how they see it. |
#9
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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'.
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ARCHIVED Calguns Foundation Wiki here: http://web.archive.org/web/201908310...itle=Main_Page "The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane."Ann Althouse: “Begin with the hypothesis that what they did is what they wanted to do. If they postured that they wanted to do something else, regard that as a con. Work from there. The world will make much more sense.” Not a lawyer, just Some Guy On The Interwebs. |
#10
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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. |
#11
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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.
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#13
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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? |
#14
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#15
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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 |
#16
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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. |
#17
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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. |
#18
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(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:
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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.. |
#19
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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? |
#20
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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. |
#21
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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.
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