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FLORIDA LEGISLATURE WANTS VOTERS TO BAN INDIVIDUAL MANDATE, BUT FEDERAL LAW LIKELY WOULD PREVAIL

Will fight to repeal federal health care law

Said he would join efforts to repeal the health care law, including supporting a constitutional amendment that "prohibits the federal government from imposing President Obama's individual mandate, to protect Floridians' freedom to control their health care choices."

Sources: Rick Scott for Florida campaign website, Issues: Health Care; St. Petersburg Times, Buzz Blog

Subjects: Health Care

* * *

SCOTT-O-METER: PROMISE KEPT

Rick Scott built a national following in 2009 by opposing President Barack Obama's attempt to reform the country's health care system.

As Florida's governor he vowed to keep up the fight, saying he would support "a state constitutional amendment in Florida that prohibits the federal government from imposing President Obama's individual mandate."

A constitutional amendment proposed by Senate President Mike Haridopolos attempts to accomplish exactly that. SJR 2 -- which was passed by the Senate on March 9, 2011, 29-10 and the House 80-37 on May 4 -- would prohibit the government from requiring people to purchase health insurance. A similar constitutional amendment was passed by the Legislature in 2010 but was tossed off the ballot by the Florida Supreme Court because of misleading ballot language.

Scott opposes the federal individual mandate, which works by imposing fines on people who don't have insurance. If people can't find affordable insurance to buy, as measured by a percentage of income, they would qualify for a hardship exemption. Supporters of the law say the mandate is necessary because the new health care law also prevents insurers from discriminating based on pre-existing conditions. People could simply wait until they get sick to purchase insurance if the mandate was removed.

The amendment proposed in Florida does not need to go to Scott for his signature. Barring court action, it will appear on the November 2012 ballot and must be approved by 60 percent of voters. Several other states are considering or have considered similar constitutional changes.

But there's a big caveat to the proposal. Even if it passes, the constitutional change likely will not stop the federal insurance law from applying to Florida.

The federal supremacy clause of the U.S. Constitution establishes federal law as the "supreme law of the land," and invalidates state laws that interfere with or are contrary to federal law. If the federal health care bill is upheld as constitutional (Florida and other states are suing), it would most likely supersede state law.

"States can no more nullify a federal law like this than they could nullify the civil rights laws by adopting constitutional amendments," Timothy Stoltzfus Jost, a health law expert at Washington & Lee University School of Law, told the New York Times.

For this promise, we're judging Scott based on his efforts to repeal the federal health care law -- and specifically his promise to support an amendment to the state constitution attempting to invalidate the individual mandate. On the day the Senate passed the amendment, Scott called it "a giant step forward in stopping the federal government from imposing costly health care mandates on the state that kill jobs and limit personal choice."

We rate this a Promise Kept.

Sources:

SJR 2, accessed May 9, 2011

Article VI, U.S. Constitution

Florida Supreme Court, decision to remove Amendment 9 from 2010 ballot

Rick Scott, press statement on Senate passage of SJR 2, March 9, 2011

New York Times, "Health Care Overhaul and Mandatory Coverage Stir States" Rights Claims," Sept. 28, 2009

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Scott supports health care repeal efforts

Updated: Thursday, January 20th, 2011

By Amy Sherman

The U.S. House voted to repeal of the 2010 health care law on Jan. 19, 2011, and Gov. Rick Scott was on the sidelines cheering.

Before he became a candidate for governor, during the campaign and after the election, Scott has been a persistent critic of President Barack Obama's federal health care push.

In 2009, Scott spent $5 million of his own money to form Conservatives for Patients' Rights, a group that fought Obama's earlier plan that included the public option.

In 2010, his campaign website boasted that "Rick led the fight to defeat President Obama's government-run public option" and that he "supports a state constitutional amendment in Florida that prohibits the federal government from imposing President Obama's individual mandate." He told Fox News in an interview Oct. 18, 2010, that "the whole thing has to be repealed."

In a meeting in Washington with the Florida congressional delegation on Dec. 1, he said, "I am going to focus on the repealing (of) the health care bill because I think it's the biggest job killer ever in the history of this country."

Just the day before the House vote, in an interview with Fox Business News, Scott said again:

"But Obamacare is a big problem and we will get it repealed. As you know, we're leading the lawsuit against it. Six more states joined our lawsuit today. So it's going to, we're going to -- either we're going to win it through the courts or we're going to win through repealing it."

We sent e-mails to Scott's press office Jan. 18 and 19, and left a phone message on Jan. 18 asking what Scott was doing to fight for repeal, but did not get a reply. We also contacted Florida Attorney General Pam Bondi's spokeswoman, Jennifer Krell Davis, to ask if she was aware of actions Scott had taken toward repeal.

Bondi, also elected in November and a supporter of repealing the law, took over a lawsuit seeking repeal that had been filed by her predecessor, Bill McCollum. Bondi filed a motion Jan. 18 seeking to add six states to the lawsuit that argues the health care law is unconstitutional -- bringing the total number of states to 26, according to a press release from Bondi's office. The suit argues that the law is unconstitutional because it forces people to buy health insurance or pay a penalty.

Davis said in an interview that Bondi's office has been notifying Scott's office "on any changes or updates on the lawsuit."

Three days after Scott"s inauguration, on Jan. 7, he added his signature to a letter addressed to Obama that was also signed by 32 governors (or governors-elect) protesting the health care law, Davis said. The letter doesn't use the word "repeal" but states:

"...we are writing to you regarding the excessive constraints placed on us by healthcare-related federal mandates. One of our biggest concerns continues to be the Maintenance of Effort (MOE) provisions of the American Recovery and Reinvestment Act (ARRA) and the Patient Protection and Affordable Care Act (PPACA), which prevent states from managing their Medicaid programs for their unique Medicaid populations. We ask for your immediate action to remove these MOE requirements so that states are once again granted the flexibility to control their program costs and make necessary budget decisions."

The MOE provision in the health care bill relates to Medicaid and is a directive from the federal government that the states not make major changes to Medicaid during the transition period up to 2014, when the Medicaid rolls will expand, said Gerard Anderson, professor at Johns Hopkins Bloomberg School of Public Health.

"What they are saying is you can change the rules to some extent to take care of new circumstances, but you can't fundamentally drop people you used to cover," Anderson said. "Every state budget is in serious trouble right now, and Medicaid is 25% of most states' [budgets] so they want to get out of the rule."

(PolitiFact Florida wrote in a September ruling that Medicaid expenditures would be around one-third of the state's budget in three years if it keeps growing within the 10-year average.)

We also spoke to Alan Levine, who headed up a transition team for Scott examining health and human services agencies and was a former Secretary of Florida's Agency for Health Care Administration under Republican Gov. Jeb Bush. Levine now works at Naples-based Health Management Associates in Florida, which operates multiple hospitals including several that care for a high number of Medicaid patients.

Levine said that Scott has been encouraging the lawsuit seeking repeal. During a meeting with Levine and others about the transition team plan, Scott said he'd put his money where his mouth was on that lawsuit, according to Levine.

"He made it very clear to me Florida was committed to getting this legislation repealed and if it took resources, they were prepared to provide those although it doesn't appear necessary as we've got so many states involved now," Levine said.

Scott can't vote on repeal -- the only ways he can work toward repeal are supporting the lawsuit, using his bully pulpit and talking about repeal with the state's congressional delegation, Levine said. We agree those are key steps to show him fighting for repeal, and he's met that criteria. But the fight's not over, and he'll need to keep working to keep this promise.

For now, we rate this promise In the Works.

Sources:

Fox News, "Rick Scott on health care: 'The whole thing needs to be repealed,'" Oct. 18, 2010

The Buzz St. Petersburg Times blog, "Health care fight breaks out in meeting with Rick Scott, Florida delegation," Dec. 1, 2010

St. Petersburg Times, "Six more states join Florida's health care lawsuit," Jan. 19, 2011

Miami Herald, "A Study in Contrasts,"Aug. 8. 2010

PolitiFact, "Pam Bondi says Medicaid will eat up half the state budget in 2015," Sept. 8, 2010

Interview, Johns Hopkins Bloomberg School of Public Health professor Gerard Anderson, Jan. 19, 2011

Interview, Florida Attorney General spokeswoman Jennifer Krell Davis, Jan. 18, 2011

Interview, Alan Levine, chair of the Health and Human Services Transition Team for Gov. Rick Scott, Jan. 18, 2011

Letter from Gov. Rick Scott and several other governors to President Barack Obama, Jan. 7, 2011

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