US says FL can't opt out

By Carol Gentry and Jim Saunders

4/23/2010 © Health News Florida

Only hours after the Florida House and Senate voted to “opt out” of the new federal health law, the top U.S. health official said Thursday night that will not be permitted.

Without mentioning any particular state or going into detail, Health and Human Services Secretary Kathleen Sebelius said that state and local officials can vent all they want about a so-called “federal takeover” of health care. But they cannot deny their citizens access to its benefits or requirements, she told the Association of Health Care Journalists.

“They may want to opt out, but they don’t get to opt out all of their citizens who want and need health care,” Sebelius said.

Florida has an estimated 4 million uninsured, most of whom will be covered when the Patient Protection and Affordable Care Act (ACA) takes full effect in 2014.

At least 30 states have passed state constitutional amendment legislation similar to that approved by the Florida Legislature, according to the National Conference of State Legislatures.

Sebelius said the backlash against the ACA has been ginned up by “misinformation,” much of it deliberate. Thus HHS will be setting up an Internet site to answer frequent questions and a toll-free helpline, similar to that operated for Medicare beneficiaries. HHS staff members present at the conference said they hope to have the Internet site up by July 1 and the help desk soon after.

The opt-out measure passed in the House and Senate on Thursday, a proposed amendment to the Florida Constitution, will go before voters in the November election. The proposal says, in part, that Floridians may not be forced by law to "participate in any health-care system.''

Dividing along almost strict party lines, the House passed the proposal 74-42, and the Senate followed in a 26-11 vote. Republican supporters say the issue is a matter of freedom and preventing encroachment by the federal government.

"The fact that we have to have this debate in the United States of America is troubling and bizarre,'' said Rep. Mike Horner, R-Kissimmee.

Democrats said the proposal's supporters have spent more time trying to prevent expansion of coverage than they have on solving the state's health-care problems.

"That is the folly of this moment, and this constitutional amendment is misguided in the extreme,'' said Sen. Dan Gelber, D-Miami Beach.

The measure is primarily aimed at part of the health-reform law that will eventually require people to buy health insurance or face financial penalties --- a concept known as the "individual mandate.'' Republicans in Tallahassee and other state capitals have launched numerous efforts to allow people to opt out of the requirement since the Democrat-controlled Congress passed it last month.

At the same time, Republican Attorney General Bill McCollum has launched a separate legal battle challenging the federal law. That lawsuit is pending.

Democrats have repeatedly argued that the legislative attempts to allow Floridians to opt out of the federal law would violate the so-called "supremacy clause'' of the U.S. Constitution. That clause generally gives precedence to federal law over state law when conflicts occur.

"We should not step on the United States Constitution, and that's what you are doing now,'' Davie Democrat Martin Kiar said during the House debate today.

But supporters dispute that the supremacy clause bars the state from allowing people to avoid the individual mandate. "The supremacy clause does not say the feds control the states,'' Melbourne Republican Ritch Workman said.

Supporters also say that even if the proposal ultimately is found to violate the supremacy clause, it would remain in place to protect Floridians from future state health-care requirements. As an example, it would prevent Florida from approving coverage requirements similar to those in Massachusetts.

More broadly, however, Palm Harbor Republican Peter Nehr said it is the Legislature's duty to "step up and reassert the rights of Floridians.''

--Editor Carol Gentry can be reached at 727-410-3266 or by e-mail at carol.gentry@healthnewsflorida.org. Capital Bureau Chief Jim Saunders can be reached at 850-228-0963 or by e-mail at jim.saunders@healthnewsflorida.org.