Bill S2362-2011

Preserves New Yorkers' ability to provide for their health care

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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  • 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

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 2362 2011-2012 Regular Sessions IN 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.

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