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Recent Legal Issues Seniors Should Understand

By  //  January 18, 2014 // As Pulished in Space Coast Daily.com

CRITICAL FOR SENIORS TO STAY INFORMED

BREVARD COUNTY · MELBOURNE, FLORIDA Last year was an important time for news that affected our senior and veteran populations. Many stories affecting these groups made national headlines. This is a review of some of the top stories of 2013 and why the related issues may continue to dominate headlines in 2014.

THE DOMA DECISION

The US Supreme Court's decision of US v. Windsor stemmed from a widow from a same-sex marriage who was denied tax relief under the "Defense of Marriage Act (DOMA)."  The Supreme Court found DOMA to be unconstitutional, ruling in favor of Edith Windsor and striking down the part of the law defining marriage as a union between a man and a woman.  The Court noted that the law deprived same sex couples of both rights and responsibilities.

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Then President Bill Clinton signed DOMA into law in 1996, but now says the law is discriminatory and supported the Supreme Court's ruling that DOMA is unconstitutional.

The well-publicized ruling of this case impacted many federal laws which fell under the Act's definition of marriage, including benefits such as Medicaid, Social Security, housing, food, stamps, tax laws, federal employee benefits and Veteran's benefits.

Whether there is an impact to an individual or couple in a same sex marriage will depend on factors such as the benefit in question and whether the state in which the individual resides recognizes same-sex marriage and whether the couple was validly married in a state that recognized same-sex marriage on the date of marriage.

For example, Medicaid will not recognize a marriage unless it is being administered in a state that recognizes an otherwise valid same-sex marriage.  But, where the state recognizes a same-sex marriage, the impact in terms of Medicaid is great.

In regards to Medicaid financial eligibility, the change means an increased allowance of assets from that of a single person (approximately $2,000) to those of a married couple (up to $117,920). The sword cuts both ways, though, as Medicaid will consider assets of both parties to the marriage and not just the applicant.

AFFORDABLE CARE ACT

We have all been inundated by information regarding the Affordable Care Act (ACA). Regardless of your feelings on the new law, seniors will likely be affected by its implementation.  More significant to the senior population than the individual mandate, are the changes to Medicare, the prohibition against pre-existing conditions clauses, nursing home care changes, changes to community-based long term services and supports, and the funding of the ACA.

ACA and Medicare

Changes in Medicare include a prescription drug coverage increase that will eventually reach 25 percent across the board for all prescription drugs and will be felt by those who spend more than $2,800 per year on prescription drugs. Where there was no coverage by Medicare when the prescription drug expense of an individual was between $2,800 and $4,550, there will eventually be coverage of 25 percent for all such expenses for those receiving Medicare.

The ACA provides preventive care without seniors having to meet a deductible, copayment, or cost-sharing. Medicare beneficiaries were previously paying 20% of preventive services.

The ACA provides preventive care without seniors having to meet a deductible, copayment, or cost-sharing. Medicare beneficiaries were previously paying 20% of preventive services.

Another Medicare change under the ACA is increased coverage of preventive care. These now-covered services include annual wellness visits, flu shots, tobacco use cessation counseling, cancer screenings, diabetes screenings and screenings for other chronic diseases.

Finally, the ACA's changes to Medicare include a funding cut to Medicare Advantage Plans. The ACA also places more restrictions on the options that can be provided by these plans, which is projected to result in fewer choices for seniors and creates an uncertain future for Medicare Advantage Plans.

ACA and the Prohibition Against Pre-Existing Conditions Clauses

The ACA's prohibition against pre-existing conditions clauses received a great deal of attention in the news. This part of the law prohibits insurance companies from considering existing health problems when one applies for health care coverage. It also prohibits insurance companies from charging varying amounts to individuals based on heath, sex, age or other factors. The elderly will benefit from this portion of the law because the risk of insuring them will now be evenly distributed among the entire population, old and young alike.

ACA and Nursing Homes

Another major change affecting seniors under the ACA concerns nursing homes. The ACA requires the Center for Medicare and Medicaid Services (CMS) to provide a consumer-friendly website, posting comprehensive information regarding nursing homes.

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The CMS website, Nursing Home Compare, allows consumers to compare information about nursing homes, and contains quality of care information on every Medicare and Medicaid-certified nursing home in the country.

The purpose of the website is to provide data regarding the nursing home's inspections, complaints and number of violations received, as well as identify the owner of the home and show expense reports comparing resident care costs versus administrative costs.

In addition, the ACA will make it easier to file complaints against a nursing home.  In the event a nursing home decides to close its doors, the ACA mandates advance notice so that all its residents can relocate. Further, the home must ensure all residents have successfully relocated prior to closing.

ACA Funding

The aspects of ACA funding that will have an impact on seniors include: $145 million cut to Medicare Advantage Plans over a 10 year period; a surcharge tax of 3.8% to unearned income; an increase in the floor for medical expense deductions from 7.5% to 10% of AGI; and a .9% Medicare payroll tax on high income earners, defined as single taxpayers earning income over $200,000 or a family earning over $250,000.

PROPOSED VA PENSION CHANGES

There have been two bills introduced this past year that would make changes to Veterans' pension benefits. The house introduced H.R. 2189 and the Senate introduced S. 944. Both bills propose essentially the same changes. The bills, if passed, will affect wartime Veterans and surviving spouses of wartime Veterans who apply for pension benefits in a number of ways.

It's important for Veterans to follow the status of two Congressional bills introduced this past year that would and have a significant impact on wartime Veterans and surviving spouses of wartime Veterans who apply for pension benefits.

It's important for Veterans to follow the status of two Congressional bills introduced this past year that would have a significant impact on wartime Veterans and surviving spouses of wartime Veterans who apply for pension benefits.

First, the proposed law imposes a penalty against the claimant who disposes of property for less than fair market value if that transfer reduces the amount of the claimant's estate. There is currently no penalty if a pension applicant gives away assets and then applies for benefits.

Second, the bill imposes a 36-month look-back period for transfers made prior to the submission of an application. Under this portion of the law, the VA will review the applicant's gifts and other transactions to trusts, annuities or other investments over the past 36 months to ensure no penalties described in the prior paragraph should apply. The goal appears to be to thwart Veterans' beneficial pension planning strategies that currently exist and, according to bill proponents, the proposed legislation is misguided and being misused.

CRITICAL FOR SENIORS TO STAY INFORMED

Several big changes occurred in 2013 that will impact seniors and Veterans in the coming months and years. While some of the changes will have a positive impact on the senior and Veteran populations, others will not.  Make sure you stay informed and understand the ramifications of these changes on your life.


Senior Citizens and The Affordable Care Act

By  //  September 20, 2013 // As Pulished in Space Coast Daily.com


OBAMACARE EXCLUDES SENIORS FROM MANDATE, PROVIDES ADDITIONAL BENEFITS AND PROTECTIONS

ABOVE VIDEO: This Healthcare.gov video summarizes the impact of the Patient Protection and Affordable Care Act on seniors 65 and older.

BREVARD COUNTY • MELBOURNE, FLORIDA -- Since its passage in 2010, the Affordable Care Act (ACA, aka Obamacare) has been the subject of debates and a cause for considerable confusion among much of the population.  The ACA's far-reaching changes have already begun and will continue in the years to come.  

oct12-ACAI've had several seniors ask me about specific aspects of the law that may affect their health coverage. Here are the major provisions of the ACA that will have an impact on Medicare, and other changes involved with the law that will affect both senior healthcare coverage and care.

Individual Mandate

Under the ACA there is an individual mandate to obtain healthcare insurance. If one fails to do so, a penalty will be imposed starting at $95 in 2013 and rising each year until 2016 when the penalty reaches $695. However, for seniors, this is not a threat since those over 65 are eligible for Medicare coverage. Enrolled seniors 65 and over will not face the penalty.

Medicare Changes

Although there will be payment cuts to Medicare, there are key benefits that are absolutely protected under the ACA. Medicare Part A (hospitals, hospice care and some home health services) and Medicare Part B (medical insurance) are protected and may not be cut. The changes under the ACA, according to the National Council on Aging, give seniors even more Medicare benefits.

Changes to Prescription Drug Coverage

The new healthcare law decreases the expenditure on prescription drugs for Medicare recipients. Prior to the law being enacted, Medicare recipients were subject to what has become commonly known as the "Donut Hole."

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A provision in the ACA requires Medicare to pick up more of the prescription drug tab and will close the "donut hole" by the year 2020.

Simply put, the Medicare law previously required recipients to reach a $310 deductible prior to Medicare kicking in to assist. At that point, enrollees started paying 25% of the drug cost until they reached a total expenditure of $2800. The drug expense from $2800 to $4550 was then paid 100% by the enrollee. Once drug expenses reached $4550, Medicare would kick in again and the enrollee would pay only a small percentage of the prescription at that point.

A provision in the ACA requires Medicare to pick up more of the tab and will close the "donut hole" by the year 2020. Eventually, Medicare recipients will pay 25% of all prescription drugs across the board. This should be good news for seniors since the number of prescription drugs taken typically increases with age.

Preventive Care Expanded

Another benefit to seniors under the ACA is an increase in preventive care coverage. The ACA requires that Medicare cover preventive care procedures and screenings in an effort to reduce possible necessary future treatment. Prior to the ACA, Medicare did not cover preventive services.  Such services include flu shots, tobacco use cessation counseling, cancer screenings, diabetes screenings and screenings for other chronic diseases. In addition, seniors are allowed an annual wellness visit. Previously, these services, whether recommended or not, were paid out of the patient's own pocket. No doubt the senior population sees this change as a benefit.

Changes to Medicare Advantage Plans

When a senior enrolls in Medicare, he or she may choose the traditional Medicare coverage plan or may seek what is called a Medicare Advantage Plan, in which 25% of Medicare beneficiaries are now enrolled. The Medicare Advantage Plans have their own terms of coverage. They usually cover services not traditionally covered by Medicare such as dental or vision, but may, at the same time, require co-pays or cost-sharing fees for services covered, which under traditional Medicare would require no out-of-pocket expense.

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Obamacare reduces payments to Medicare Advantage Plans by $145 billion over 10 years, which creates some uncertainty for Medicare Advantage Plans in the future.

The ACA prohibits Medicare Advantage Plans from charging higher cost-sharing fees for seniors receiving chemotherapy and dialysis. In addition, it limits the amount of expenditures of other than medical services for enrollees. In other words, the Medicare Advantage Plans are now limited as to the amount they may spend on administrative, marketing and other non-medical expenses. While certain additional covered services under these plans may be eliminated, certain required benefits are prohibited from being cut.

The new healthcare law reduces payments to Medicare Advantage Plans by $145 billion over 10 years, which creates some uncertainty for Medicare Advantage Plans in the future. Medicare Advantage Plans have been popular, with 25% of Medicare beneficiaries now enrolled, however the impending cuts in the plans may limit the options currently available to seniors under Medicare Advantage Plans.

Pre-existing and Conditions Clauses

All health insurance carriers are prohibited from including pre-existing conditions clauses in their plans. This means that health cannot be a factor when applying for health care coverage. Furthermore, insurance companies are prohibited from charging individuals varying amounts for coverage based on their health, sex, age or other commonly considered factors. This appears to be good news for the ill, females and the elderly, which are the groups of people who traditionally have paid more for their coverage. Now the cost will be evenly distributed to all.

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ACA provisions prohibit insurance carriers from including pre-existing conditions clauses in their plans. This means that health cannot be a factor when applying for health care coverage.

In addition to those factors that may not be taken into consideration upon applying for coverage, there is also the protection of consumers once they are enrolled in the plan. The healthcare law says that once enrolled in a plan, the insurance company may not dis-enroll a person for becoming ill.

The ACA incentivizes hospitals to focus on seniors who are at high risk for frequent hospital readmissions by providing grants for improvement initiatives centered around more effective and efficient care of the elderly with chronic health conditions.

Enhances Consumer Information and Protection Related To Nursing Homes

There are several ACA provisions related to improving nursing home care. The ACA requires the Center for Medicare and Medicaid Services (CMS) to provide a comprehensive website where consumers may find information regarding local nursing homes, including inspection and the number of complaint reports filed against the home.

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There are several ACA provisions related to improving nursing home care.

The consumer will also be able to find information about the nursing home such as the owner, how much the nursing home spends on resident care compared to administrative costs, staff turnover rates, and the number of direct hours of nursing care received by residents.

In addition to providing consumer information that enhances the ability to evaluate a nursing home more completely prior to choosing one, the law has also made changes meant to make it easier to file complaints about the quality of care within the nursing home, and prohibits retaliation for filing such a complaint.

Conclusion

There are many changes made by the Affordable Care Act that will affect seniors and their loved ones. It is important to have a general understanding of what seniors are facing in terms of their health care coverage. With seniors facing so many changes during a susceptible time in their lives, it is crucial that they be directed to resources that can assist them to make educated decisions about their health, their finances and their care options.


Obamacare: It's Almost Time to Play or Pay

By  //  February 23, 2013 // As Pulished in Space Coast Daily.com


Healthcare Law

BREVARD COUNTY • MELBOURNE, FLORIDA–On December 28, 2012, the IRS issued its long awaited proposed regulations providing guidance to employers under the employer shared responsibility provisions of the Patient Protection and Affordable Care Act (PPACA), known also as Obamacare. The provisions in the law called the "employer mandate" or "play or pay" rules and obligations will take effect on January 1, 2014, and it's not too early for both employers and employees to understand the framework and plan accordingly. 

The PPACA provisions called the "employer mandate" or "play or pay" rules and obligations will take effect on January 1, 2014,

Peeling away the onion suggests that the basic premise to understand is that "large" employers must offer "full-time" employees and their dependents, "minimum essential" health insurance coverage or pay a penalty for failing to do so.

Responsibility Hinges On Definition and Number Of FTEs

The PPACA defines a large employer as one that, during a six-month period of the preceding calendar year (2013), employed on average, a minimum of 50 full-time employees.  Full time is defined as an employee who was employed for at least 30 hours of service a week, on average, over a one-month period.  Calculating the number of employees is complicated by a requirement that an employer factor in, or consider, the number of full-time equivalent employees (FTEs) represented by an employer's part-time employees (those whose hours of service is less than 30 hours a week, on average).

The PPACA defines a large employer as one that, during a six-month period of the preceding calendar year (2013), employed on average, a minimum of 50 full-time employees.

The number of FTEs an employer has in a month is determined by adding the total hours of service provided by all part time employees, divided by 120 hours.  Notice that the term "hours of service" is used instead of "hours worked."  This distinction requires employers to calculate the hours by including paid vacation time, holidays, illness, military duty or other leaves of absence.  All periods of paid leave must be taken into consideration when arriving at hours of service.  The proposed regulations state that an employer will have satisfied its obligation to offer "minimum essential" coverage to its full-time employees and dependents if it offers coverage to a least 95% of the employees.

'Minimum Essential' Coverage

As noted above, employers must offer "minimum essential" coverage to employees and their dependents.  The applicable Internal Revenue Code section defines a dependent as a child, under the age of 26.  A spouse, for these purposes, is not considered a dependent.  Employers who do not presently offer health care coverage for dependents will be granted relief from penalty during any transition period implemented during calendar year 2014, which is necessary to make administrative changes to the employer plan.

PPACA regulations state that a large employer must offer "minimum essential" coverage to employees and their dependents, and will have satisfied its obligation if it offers coverage to a least 95% of the employees.

Interestingly, the "minimum essential" coverage for an eligible employer-sponsored plan is not defined in the regulations by identifying a set of benefits, features or coverage required, but instead is defined by what is not health insurance coverage.  The laundry list of what does not constitute essential coverage includes, but is not limited to, obvious items such as: accident or disability income insurance, automobile medical payment insurance, coverage for on-site medical clinics, limited dental or vision benefits, long-term care insurance, home health care, hospital indemnity insurance, and coverage-only for a specified disease or illness.

Affordable and Provide Minimum Value

Of further note are the requirements that the eligible employer-sponsored plan must be affordable to the employee and provide minimum value. "Unaffordable" for the employee is a plan that requires the employee's share of the premium to cost more than 9.5% of the employee's annual household income.  And a plan fails to meet the minimum value requirement if the plan's share of the total allowed costs of benefits provided under the plan is less than 60% of those costs.

Annual Penalty Up To $3K

Ok, now that the basics have been identified, let's look at the penalty for an applicable large employer that does not offer affordable coverage to at least 95% of its full-time employees.  The annual penalty will be equal to $2,000 for each full-time employee in excess of 30 employees.  It is possible for the penalty to climb to $3,000 for any employee that petitions the government and receives a premium tax credit enabling the employee to purchase coverage through the future health insurance exchanges that will pop up in the market place.

Last spring, in a 5-4 ruling upholding the constitutionality of PPACA, the Supreme Court held that the individual mandate is not a "penalty," as the health-care law identified it, but is instead a tax.

It is also important to note that these employer-shared responsibility provisions should not be confused with the "individual mandate" which is the controversial provision being phased in beginning in 2014, but not expected to take full effect until 2016.  You may recall that in a 5-4 ruling upholding the constitutionality of PPACA, the Supreme Court held that the individual mandate is not a "penalty," as the health-care law identified it, but is instead a tax, and therefore a constitutional application of Congress's taxation power. When the individual mandate or "shared responsibility payment" is fully in place, the amount an individual would owe for not having health insurance is the greater of 2.5 percent of your income or $695. There is currently no means to criminally prosecute those who do not have health insurance and also refuse to pay the shared responsibility payment.

For Employers, What To Do Now?

The recent release of the proposed rules, albeit complex, finally provides some clarity for large employers.  We have simply skimmed the basics here.  There are many layers of complexity, some flexibility and even a few safe harbors that are too detailed to relay here and should be explored with your legal advisors.  At a minimum, employers should determine if they will meet the definition of "large," and thus be subjected to these rules.  Employers should also work with internal or external accountants to calculate whether the existing health plan is "affordable" to the employee and provides "minimum value."  Finally, consider all of the administrative requirements that will be necessary, including amending company plans, in order to be in full compliance with the PPACA, when 2014 arrives, just a short 10 months from now.


Understanding The Fiscal Cliff Legislation

By  //  January 25, 2013 // As Pulished in Space Coast Daily.com


Fiscal Facts

BREVARD COUNTY • MELBOURNE, FLORIDA–It's been over three weeks since Congress drafted and passed legislation to avoid what was commonly referred to as "The Fiscal Cliff."  Is it clear to you what really happened and how that legislation may affect you?  

A core problem with economic policy is too many people find it too complicated to follow. Make it your business to understand the impact "Fiscal Cliff' legislation has on you.

The legislation in large part made permanent the system of estate and income tax that has been in effect for the past two years. The new law also delayed until March some important spending cuts that must take place due to a process called "sequestration." It is these additional cuts that could have a significant impact on our senior population and their loved ones.

What Was Passed

Estate taxes. An estate tax is a federal tax (and in some states also includes a state tax) on the transfer of a deceased person's assets to his heirs and beneficiaries, and can include prior transfers made to those heirs and beneficiaries. However, under federal law, there is a certain amount that can be transferred without incurring any tax liability. In 2010, every individual could transfer (gift) up to $5 million tax-free during life or at death to avoid paying estate taxes on that amount. This amount is called the "basic exclusion amount" and is adjusted for inflation (usually on an annual basis). In 2012 it was raised to $5.12 million per person.

This year's new "fiscal cliff legislation" did not change how much an individual could transfer during life or at death to avoid paying federal estate taxes on that amount.

This year's new "fiscal cliff legislation" did not change how much an individual could transfer during life or at death to avoid paying federal estate taxes on that amount. And, on January 11, 2013, the IRS announced that the estate tax exclusion amount for individuals who die in 2013 is now $5.25 million, as the prior figure has now been adjusted for inflation.   What if no action had been taken with regard to estate taxes?  Without the new legislation, the $5.12 figure would have automatically reverted to $1 million per person, and the rate for most estates would have gone up to 55%. Instead, the only thing the new legislation changed was the gift and estate tax rate, which has gone up to a top rate of 40%, from a maximum of 35% in 2012.

Married couples. The new legislation did not change prior law that stated that spouses do not have to pay estate tax when they inherit from the other spouse. Rather, when the first spouse dies, the other spouse can inherit the entire estate and any estate tax due would be postponed until the second spouse dies. This is called the "marital deduction."

Married couples who may be subject to estate tax should seek the advice of an attorney to make sure their estate plan is properly set up to take advantage of existing tax incentives.

If the surviving spouse is not a U.S. citizen, then there are restrictions on how much can be passed to the surviving spouse tax-free. It is also important to remember that this type of tax benefit between spouses is not always automatic – any married couple who may be subject to estate tax should seek the advice of an attorney to make sure their estate plan is properly set up to take advantage of this particular tax incentive.

Changes to the income tax rules.  In prior years, everyone enjoyed a 2% Social Security tax reduction as a stimulus measure. Under the 2013 legislation, this "tax holiday" was not extended; therefore, everyone will see a decrease in their net pay.  Ordinary income tax rates increase from 35% to 39.6% for singles earning more than $400,000 a year ($450,000 a year for married couples). All other ordinary income tax rates effective in 2012 were made permanent.

A variety of changes to the income tax rules, some of which originate in Obamacare, raise taxes on those individuals earning over $250,000, and for married couples who earn over $250,000.

For those individuals earning over $250,000, and for married couples who earn over $250,000, there is a new Medicare 0.9% surtax on ordinary income and a new 3.8% surtax on investment income. These additional taxes were part of the 2010 health care legislation, much of which begins implementation in 2013.  The top capital gains and dividend rate increased to 20% for those earning more than $400,000 a year ($450,000 for married couples).

Additional Cuts Are on the Way
The current fiscal cliff legislation did not address the automatic spending cuts that were to take place on January 1, 2013. Instead, the automatic cuts, known as sequestration, were pushed back two months to March 1, 2013. Sequestration was one portion of the spending cuts included in the Budget Control Act, passed and signed in August 2011.  The Budget Control Act of 2011 allowed the president to raise the debt ceiling by $2.1 trillion, and it instituted two rounds of significant spending cuts. One round of cuts involved government programs like defense spending, education funding, the FBI and other government agencies that would receive automatic budget cuts relative to their scheduled growth over the next 10 years.

The second half of the spending cuts was supposed to be decided on by Congress through a Joint Select Committee on Deficit Reduction. This Committee (referred to as the "super committee") was to come up with a list of cuts that would then be put to Congress for a full vote. If the committee couldn't agree on the cuts, $1.2 trillion in further spending reductions over 10 years would be implemented starting Jan. 1, called the "sequester."

Sequestration came about last year as a way of allowing the Obama administration and members of both parties in Congress to kick a difficult problem down the road. The country is poised on the edge of its seat to see if the Republicans and Democrats can reach a compromise that will prevent sequestration from taking effect in March. 

No cuts have yet been agreed upon, and the automatic spending reductions have been moved back to March 1, 2013, to allow Congress time to come to an agreement.  Programs like Medicare, Medicaid and Social Security have been the topic of discussion for the second portion of the spending cuts.  Everyone would be wise to monitor the progress of Congress as it pertains to these spending cuts and how they will impact our senior population and their families.

The fiscal cliff legislation is in place; however, there is more legislation to occur that could have a significant impact on those affected by programs like Medicare, Medicaid and Social Security. While many families may not be affected by the current estate and income tax rules, there are many who could have their life savings consumed by long term care costs. If you would like to learn more, please contact an attorney, accountant or financial planner of your choice.


Obamacare Protects Second Amendment Gun Rights

By  //  January 17, 2013 // As Pulished in Space Coast Daily.com

Healthcare Policy

EDITOR'S NOTE–In the August 2011 issue of Space Coast Medicine magazine, Merritt Island pediatrician and then president of the Florida Pediatric Society, Dr. Lisa Cosgrove wrote an editorial raising serious concerns over the increased government encroachment into the practice of medicine inherent in the Florida law titled "Firearm Owner's Privacy Act (FOPA)," which, at the time, had recently been passed by the legislature and signed by the governor.  Dr. Cosgrove, a passionate advocate for child health and safety, said, "The bill is an unnecessary intrusion into the physician-patient relation­ship as privacy regarding patient visits is cur­rently covered under national law under the Health Insurance Portability and Account­ability Act. Because of the existence of HIPAA, no law is needed."

Even beyond the legal status of the FOPA here in Florida, the controversies surrounding gun control/violence and the issues related to patients' right to privacy have collided head on with President Obama's executive orders and the provisions in Obamacare that create confusion for providers and patients.

BREVARD COUNTY • MELBOURNE, FLORIDA–Most healthcare practitioners and much of the general public may recall the "Firearm Owners' Privacy Act" signed into law by Governor Rick Scott during the Florida legislative session of 2011.  As written, it prohibited practitioners and healthcare facilities from making notations in a patient's medical record regarding gun ownership or making inquiries of a patient regarding firearm ownership or possession if the provider knew the information was not relevant to medical care or safety.  It also prohibited discrimination and harassment against firearm owners and gave patients the right not to answer such inquiries.  Violators of the Act were subject to disciplinary proceedings, including fines and possible loss of license.

Florida Law Violates Physicians' And Patients' Rights

The law was immediately challenged in federal court on First Amendment grounds, and a federal judge issued a finding on June 29, 2012 that the law was unconstitutional because it violated both the physicians' and patients' right to free speech.

Many physicians believe that government encroachment into the practice of medicine unnecessarily creates intrusion into the physician-patient relation­ship.

Additionally, the court found the law "vague" because it failed to provide healthcare practitioners with standards they could reasonably follow to remain compliant with the law.  Gun-rights advocates had contended that such inquiries by the medical profession were an invasion of patients' privacy and an infringement of Second Amendment rights.

The Florida Medical Association originally opposed the law when it first came under consideration in the state legislature, but withdrew opposition when it was amended to allow physicians to ask about guns in the home if they believed there was an immediate danger.  The state of Florida has appealed this decision and the case is currently pending before the Atlanta-based 11th U.S. Circuit Court of Appeals.

PPACA 'Protects' Gun Owner Rights

What is of far lesser common knowledge, however, is that the Patient Protection and Affordable Care Act (PPACA), signed into law on March 23, 2010 by President Obama contains five provisions that address gun owner rights.  Located in Title X, on page 2037 of the PPACA, is a section labeled "Protection of Second Amendment Gun Rights."  This provision in the federal health care law is actually an amendment to the Public Health Service Act of 1944.

The first of the five provisions states that a wellness and health promotion activity may not require the disclosure or collection of any information relating to the presence or storage of a lawfully possessed firearm and ammunition or the usage of the firearm in the residence or on property owned by an individual.

There are five provisions in the PPACA section entitled 'Protection of Second Amendment Gun Rights' that address and protect gun owner rights.

The second section prohibits the government, through its use of healthcare practitioners and insurers, from collecting data related to a patient's lawful ownership, possession, use or storage of firearms or ammunition.

The third provision bolsters that directive by stating that collectors of the data cannot use this information to maintain records of individual ownership or possession of a firearm or ammunition.

The fourth provision is directed at health insurance companies and states that premium rates may not be increased, nor may health coverage be denied, and no discounts, rebates or rewards may be reduced within a wellness program because of an individual's lawful ownership or possession of a firearm or ammunition or because of an individual's lawful use and storage of a firearm or ammunition.

Finally, the fifth provision states that no individual shall be made to disclose under any data collection activity, information related to an individual's ownership or possession of a firearm or ammunition or the individual's lawful use, possession or storage of a firearm or ammunition.

Pelosi: 'We Have to Pass the Bill So That You Can Find Out What Is In It'

Surprised that there are Second Amendment Protections in the PPACA?  You're not alone.  It has recently been reported by the news media that lawmakers, medical groups and even some in the administration are just discovering the provisions within the text of the law.

Senator Harry Reid and Representative Nancy Pelosi.

The Standard Examiner newspaper reported that the language was included at the request of Nevada Senator Harry Reid, and inserted after the act cleared the Senate Finance Committee but before it was voted on by the full Senate. Reid evidently inserted the provision to keep the NRA at bay long enough to get ObamaCare passed. Reid was pro-gun at the time, but has moved to the left in the past couple of years.

Firearm advocates say that the provisions are necessary, not to keep physicians from discussing guns with patients, but to keep the government from amassing a federal data base full of information about firearm owners.  Additionally, advocates say they are concerned that health insurance companies would use gun ownership information to raise rates.

Contradictory Provisions In Obamacare Create Confusion For Physicians

Opposition to the provisions now appears to be growing.  Advocates for firearm regulations state that research statistics for studies related to firearm violence are not being collected primarily because physicians and healthcare researchers who could track patterns are being inhibited each time laws are implemented to lessen discussion between physician and patient.

Conflicting PPACA guidelines and now new executive orders related to queries about guns in the home have created confusion for physicians.

The Bangor Daily News reported in an article dated December 31, 2012 that The American Academy of Pediatrics called the provision in the healthcare bill "pretty outrageous," saying it risked creating a sense among doctors that "this is dangerous information to collect."

The pediatricians group submitted a letter to the Obama administration saying that pediatric advocates "vehemently reject" the gun provision in the healthcare law. The group noted that the provision runs counter to guidelines included in other sections of the legislation that ask family doctors and pediatricians to inquire about the presence of guns in patients' homes, along with other potential dangers, such as mold, lead, cigarette smoke and a lack of smoke detectors.

Executive Order: OK To Ask About Guns In The Home

Yesterday the President released his legislative and policy recommendations relating to gun control.  He also executed 23 executive orders.  One order clarifies that the PPACA does not prohibit doctors from asking patients about guns in the home.  Another order directs that a letter be released to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.

Unlike the Florida law, the federal provisions do not prevent doctors from asking patients about guns, but it does restrict practitioners, insurers, employers and government officials from asking about gun ownership, and then collecting and centralizing such data.  The debate over whether the medical community can treat firearms as a public health issue or whether this information shall be deemed a protected privacy right is not over and will continue to play out in the court system and halls of Congress.


Resources

AARPhttp://www.aarp.org
Alzheimer's Associationhttp://www.alz.org/index.asp
ARC of Florida http://www.arcflorida.org
Association for Retarded Citizens (ARC) http://thearc.org
Center for Guardianship Certification http://www.guardianshipcert.org
Dept. of Veterans Affairs http://www.va.gov
Florida Agency for Persons with Disabilities http://www.fddc.org
Florida Department of Elder Affairs http://elderaffairs.state.fl.us/index.php
Florida Developmental Disabilities Council, Inc. http://www.fddc.org
Florida State Guardianship Association (FSGA) http://floridaguardians.com
Florida's Voice on Developmental Disabilities http://www.floridasvoice.org
Florida Statewide Public Guardianship Office http://elderaffairs.state.fl.us/english/spgo.php
Guardian Mentoring Association http://www.guardianmentoringassociation.com
Medicarehttp://www.medicare.gov
National Guardianship Organization http://www.guardianship.org
Social Security Administration http://www.ssa.gov