Proposes an amendment to article 17 of the constitution, in relation to preserving the freedom of New Yorkers to provide for their health care.

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S2362-2011 Actions

• Feb 8, 2012: OPINION REFERRED TO JUDICIARY
• Jan 9, 2012: TO ATTORNEY-GENERAL FOR OPINION
• Jan 4, 2012: REFERRED TO JUDICIARY
• Apr 27, 2011: OPINION REFERRED TO JUDICIARY
• Jan 25, 2011: TO ATTORNEY-GENERAL FOR OPINION
• Jan 19, 2011: REFERRED TO JUDICIARY

S2362-2011 Memo

BILL NUMBER:S2362

TITLE OF BILL:
CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
proposing an amendment
to article 17 of the constitution, in relation to preserving the freedom
of New Yorkers to provide their health care

PURPOSE:
The purpose of the constitutional amendment is to preserve
New Yorkers' ability to provide for their health care by allowing
residents to opt out of the new federal requirement to purchase
health insurance.

SUMMARY OF PROVISIONS:
Amends article 17 of the New York State
Constitution by creating a new section 3-a that will preserve the
freedom of New Yorkers to provide for their own health care by the
following:

1. Prohibits any individual, employer or health care provider from
being compelled to participate in any health care system.

2. Prohibits the government from imposing any penalties or fines when
an individual or employer chooses not to participate in any health
care system.

3. Establishes that health care providers have the right to accept
direct payments from individuals and employers for lawful health care
services without fear of penalties or fines.

4. Establishes that the purchase or sale of private health insurance
shall not be prohibited by law or rule.

The new section 3-a does not affect which health care services
required of a health care provider or which services are permitted by
law. This section also specifically excludes any services provided
pursuant to the workers' compensation system. Further, this section
does not affect any laws or rules in effect as of January 1, 2010 so
it would not affect programs including VA programs, Medicare,
Medicaid, or any of New York State's public health programs (Child
Health Plus, Family Health Plus, Healthy New York).

JUSTIFICATION:
The federal government recently enacted a sweeping
health care overhaul measure that will require all Americans to
purchase health insurance by 2014 or face a tax penalty. The
proposed constitutional amendment would allow New Yorkers to opt out
of the individual health insurance mandate if they so choose, without
fear of fines or penalties. It is important to note that this
amendment is not an attempt to nullify the entire federal health care
reform law; rather it seeks to ensure that individuals, employers and
health care providers continue to have the right to make their own
health care decisions. It would not prohibit individuals or employers
from purchasing government approved health insurance; it would simply


ensure that no one will be forced into it if they either do not want
it or cannot afford it.

LEGISLATIVE HISTORY:
S.7474 of 2010

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Resolved (if the Assembly concur), That the foregoing
amendment be referred to the first regular legislative session
convening after the next succeeding general election of members of
the assembly, and, in conformity with section 1 of article 19 of the
constitution, be published for 3 months previous to the time of such
election.

S2362-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    2362

                         2011-2012 Regular Sessions

                              I N  SENATE

                              January 19, 2011
                                 ___________

  Introduced  by  Sens.  SEWARD,  DeFRANCISCO,  JOHNSON,  LARKIN, MAZIARZ,
    O'MARA, RANZENHOFER -- read twice and ordered printed, and when print-
    ed to be committed to the Committee on Judiciary

              CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY

  proposing an amendment to article 17 of the constitution, in relation to
    preserving the freedom of New Yorkers to provide their health care

    Section 1. Resolved (if the Assembly concur), That the article heading
  of article 17 of the constitution be amended to read as follows:


                          HEALTH AND Social Welfare

    S 2. Resolved (if the Assembly concur), That article 17 of the consti-
  tution be amended by adding a new section 3-a to read as follows:

    S 3-A. TO PRESERVE THE FREEDOM OF NEW YORKERS  TO  PROVIDE  FOR  THEIR
  HEALTH CARE:

    A.  A  LAW OR RULE SHALL NOT COMPEL, DIRECTLY OR INDIRECTLY ANY PERSON
  OR EMPLOYER OR HEALTH CARE PROVIDER TO PARTICIPATE IN  ANY  HEALTH  CARE
  SYSTEM.  A  PERSON  OR  EMPLOYER MAY PAY DIRECTLY FOR LAWFUL HEALTH CARE
  SERVICES AND SHALL NOT BE REQUIRED TO PAY PENALTIES OR FINES FOR  PAYING
  DIRECTLY  FOR  LAWFUL  HEALTH  CARE SERVICES. A HEALTH CARE PROVIDER MAY
  ACCEPT DIRECT PAYMENT FOR LAWFUL HEALTH CARE SERVICES AND SHALL  NOT  BE
  REQUIRED  TO  PAY PENALTIES OR FINES FOR ACCEPTING DIRECT PAYMENT FROM A
  PERSON OR EMPLOYER FOR LAWFUL HEALTH CARE SERVICES.
    B. SUBJECT TO REASONABLE AND NECESSARY RULES THAT DO NOT SUBSTANTIALLY
  LIMIT A PERSON'S OPTIONS, THE PURCHASE OR SALE OF  HEALTH  INSURANCE  IN
  PRIVATE HEALTH CARE SYSTEMS SHALL NOT BE PROHIBITED BY LAW OR RULE.
    C. THIS SECTION DOES NOT:

    1.  AFFECT WHICH HEALTH CARE SERVICES A HEALTH CARE PROVIDER OR HOSPI-
  TAL IS REQUIRED TO PERFORM OR PROVIDE;
    2. AFFECT WHICH HEALTH CARE SERVICES ARE PERMITTED BY LAW;

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD89067-01-1

 S. 2362                             2

    3. PROHIBIT CARE PROVIDED PURSUANT TO SECTION EIGHTEEN OF ARTICLE  ONE
  OF THIS CONSTITUTION OR ANY STATUTES ENACTED BY THE LEGISLATURE RELATING
  TO WORKERS' COMPENSATION;
    4.  AFFECT  LAWS  OR RULES IN EFFECT AS OF JANUARY FIRST, TWO THOUSAND
  ELEVEN; OR
    5. AFFECT THE TERMS OR CONDITIONS OF ANY HEALTH  CARE  SYSTEM  TO  THE
  EXTENT THAT THOSE TERMS AND CONDITIONS DO NOT HAVE THE EFFECT OF PUNISH-
  ING  A  PERSON  OR  EMPLOYER  FOR PAYING DIRECTLY FOR LAWFUL HEALTH CARE
  SERVICES OR A HEALTH CARE PROVIDER  OR  HOSPITAL  FOR  ACCEPTING  DIRECT
  PAYMENT FROM A PERSON OR EMPLOYER FOR LAWFUL HEALTH CARE SERVICES.
    D. FOR THE PURPOSES OF THIS SECTION:

    1."COMPEL" INCLUDES PENALTIES OR FINES.
    2.  "DIRECT  PAYMENT  OR PAY DIRECTLY" MEANS PAYMENT FOR LAWFUL HEALTH
  CARE SERVICES WITHOUT A PUBLIC OR PRIVATE THIRD PARTY, NOT INCLUDING  AN
  EMPLOYER, PAYING FOR ANY PORTION OF THE SERVICE.
    3. "HEALTH CARE SYSTEM" MEANS ANY PUBLIC OR PRIVATE ENTITY WHOSE FUNC-
  TION OR PURPOSE IS THE MANAGEMENT OF, PROCESSING OF, ENROLLMENT OF INDI-
  VIDUALS  FOR OR PAYMENT FOR, IN FULL OR IN PART, HEALTH CARE SERVICES OR
  HEALTH CARE DATA OR HEALTH CARE INFORMATION FOR ITS PARTICIPANTS.
    4. "LAWFUL HEALTH CARE SERVICES" MEANS ANY HEALTH-RELATED  SERVICE  OR
  TREATMENT  TO  THE  EXTENT THAT THE SERVICE OR TREATMENT IS PERMITTED OR
  NOT PROHIBITED BY LAW OR REGULATION THAT MAY BE PROVIDED BY  PERSONS  OR
  BUSINESSES OTHERWISE PERMITTED TO OFFER SUCH SERVICES.
    5.  "PENALTIES  OR FINES" MEANS ANY CIVIL OR CRIMINAL PENALTY OR FINE,
  TAX, SALARY OR WAGE WITHHOLDING OR SURCHARGE OR ANY  NAMED  FEE  WITH  A
  SIMILAR  EFFECT  ESTABLISHED BY LAW OR RULE BY A GOVERNMENT ESTABLISHED,
  CREATED OR CONTROLLED AGENCY THAT IS USED TO PUNISH  OR  DISCOURAGE  THE
  EXERCISE OF RIGHTS PROTECTED UNDER THIS SECTION.
    S  3. Resolved (if the Assembly concur), That the foregoing amendments
  be referred to the first regular legislative session convening after the
  next succeeding general election of members of  the  assembly,  and,  in
  conformity  with  section  1  of  article  19  of  the  constitution, be
  published three months previous to the time of such election.