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Regular Session, 2010
SENATE BILL NO. 26
BY SENATOR CROWE
HEALTH CARE. Enacts the Louisiana Health Care Freedom Act. (8/15/10)
AN ACT1
To enact R.S. 22:971.2, relative to preserving the freedom of all citizens of Louisiana to2
provide for their own health care; to provide that no law or rule shall compel, directly3
or indirectly, any person, employer or health care provider to participate in any4
health care system or health insurance plan; to provide for legislative intent; to5
provide criminal penalties; and to provide for related matters.6
Be it enacted by the Legislature of Louisiana:7
Section 1. R.S. 22:971.2 is hereby enacted to read as follows:8
§971.2. The Louisiana Health Care Freedom Act9
A. Legislative findings and intent.10
The Louisiana Legislature hereby declares the following:11
(1) The United States Congress is considering legislation which, if12
passed, would require Louisiana to expand the income limits for the Medicaid13
program and would, thereby, negatively impact the state general fund.14
(2) The Supreme Court of the United States in Printz v. United States,15
117 S.Ct. 2365, 521 U.S. 898, 138 L.Ed.2d 914 (1997), has declared that states16
cannot be required by the federal government to provide services which are not17 SB NO. 26
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compensated by the federal government.1
(3) R.S. 40:1299.34.5 prohibits making any public funds available to any2
institution, board, commission, department, agency, official, or employee of the3
state of Louisiana, or any political subdivision thereof, whether such funds are4
made available by the government of the United States, to pay for elective5
abortions, except in certain limited cases.6
(4) Proposed federal mandates would require Louisiana taxpayers to7
pay for or subsidize all elective abortions and would be in conflict with state8
law.9
(5) To coerce individuals to enter into contracts with private companies,10
particularly health insurers, would go beyond the authority of the Commerce11
Clause in Article I, Section 8, of the Constitution of the United States of12
America and, therefore, be unconstitutional.13
(6) To require the citizens of Louisiana to pay for certain federally14
mandated services while exempting the taxpayers of certain other states is a15
violation of the Equal Protection Clause in the Fourteenth Amendment of the16
Constitution of the United States of America.17
(7) The Tenth Amendment of the Constitution of the United States of18
America declares that "The powers not delegated to the United States by the19
Constitution, nor prohibited by it to the States, are reserved to the States20
respectively, or to the people." Issues regarding health care and health21
insurance were never delegated to the federal government by the states and,22
thus, are reserved to the states.23
(8) Article IV, Section 2, of the Constitution of the United States of24
America declares that "The Citizens of each State shall be entitled to all25
Privileges and immunities of Citizens in the several States." The legislation26
currently being debated in the United States Congress would provide a certain27
exemption from mandated health care coverage but would not extend to28
Louisiana that same exemption. The failure to treat all states equally and fairly29 SB NO. 26
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would violate the Constitution of the United States of America.1
B. Prohibitions from mandated coverage; exemptions from payment of2
penalties.3
(1) No law or rule shall compel, directly or indirectly, any person,4
employer or health care provider to participate in any health care system or5
health insurance plan.6
(2) An individual or employer may pay directly for lawful health care7
services and shall not be required to pay penalties or fines for paying directly8
for lawful health care services.9
(3) Except as provided in Paragraph (D)(2) of this Section, no health10
care provider shall be required to pay penalties or fines for accepting direct11
payment from a person or employer for lawful health care services.12
C. Right to purchase private health insurance; freedom to contract.13
(1) The purchase or sale of private health insurance from a private14
health care system shall not be prohibited by law or rule.15
(2) A health care provider may accept or refuse to participate in any16
health care program or health care insurance plan operated by any government17
entity and shall not be compelled to do so as a condition of licensure.18
D. Exemptions.19
This Section does not affect and shall have no impact on any of the20
following:21
(1) Emergency health care services a health care provider or hospital is22
mandated to perform in 42 U.S.C.A. § 1395dd.23
(2) Provider contracts, whether negotiated by private insurance24
companies, Medicare or Medicaid, which prohibit providers from accepting25
payments which are in excess of those allowed by the provider contracts.26
(3) Health care services which are otherwise not permitted by law.27
(4) Medical care provided pursuant to Title 23 of the Louisiana Revised28
Statutes of 1950, or any statute enacted by the legislature relating to workers'29 SB NO. 26
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compensation.1
E. Definitions.2
As used in this Section, the following terms shall have the following3
meanings:4
(1) "Compel" means any action by government which coerces an5
individual to participate in any health care system or health insurance plan and6
for which the failure to comply will result in penalties or fines.7
(2) "Direct payment" or "pay directly" means payment for lawful8
health care services which are paid by any individual or employer other than9
a government entity or private third party, private health plan.10
(3) "Health care system" means any public or private entity whose11
function or purpose is the management and enrollment of individuals for12
payment, in full or in part, for health care services, health care data, or health13
care information for its participants.14
(4) "Lawful health care services" means any health related service or15
treatment to the extent that the service or treatment is permitted or not16
prohibited by law that may be provided by persons or businesses licensed or17
permitted to offer such services.18
(5) "Medicaid" means the program provided for in Subchapter XIX of19
Chapter 7 of Title 42 of the United States Code which program provides federal20
grants to the states for the purpose of providing health services to certain low21
income individuals.22
(6) "Medicare" means the federal health insurance program provided23
for in Subchapter XVIII of Chapter 7 of Title 42 of the United States Code.24
(7) "Penalties and fines" means any civil or criminal penalty or fine, tax,25
salary or wage withholding or surcharge or any named fee with a similar effect26
established by law or rule by a government established, created or controlled27
agency that is used to punish or discourage the exercise of rights protected28
under this Section.29 SB NO. 26
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E. Penalties.1
Any institution, board, commission, department, agency, official, or2
employee of the state of Louisiana, or of any political subdivision thereof, who3
coerces, or attempts to coerce, any individual to purchase health insurance or4
to participate in a particular health system shall be guilty of a misdemeanor and5
shall be subject to a fine of not more than five hundred dollars or imprisonment6
for not more than five days.7
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Carla S. Roberts.
DIGEST
Present law provides that individuals may purchase private insurance.
Present law provides that certain low income children and adults may participate in the
Medicaid program, which is operated by the state in conjunction with a federal grant
covering a portion of the cost of the program.
Proposed law provides the following legislative findings:
A. Congress is attempting to enact proposed legislation which, if passed, would require
Louisiana to expand the income limits for the medicaid program and would, thereby,
negatively impact the state general fund.
B. The U.S. Supreme Court in Printz v. United States, 117 S.Ct. 2365, 521 U.S. 898,
138 L.Ed.2d 914 (1997), has declared that states cannot be required by the federal
government to provide services which are not compensated for by the federal
government.
C. Louisiana law prohibits making any public funds available to any institution, board,
commission, department, agency, official, or employee of the state, or any political
subdivision thereof, whether such funds are made available by the U.S. government,
to pay for elective abortions, except in certain limited cases.
D. Proposed federal mandates would require Louisiana taxpayers to pay for or subsidize
all elective abortions and would be in conflict with state law.
E. To coerce individuals to enter into contracts with private companies, particularly
health insurers, would go beyond the authority of the Commerce Clause in Article
I, Section 8, of the U.S. Constitution and, therefore, be unconstitutional.
F. To require the citizens of Louisiana to pay for certain federally mandated services
while exempting the taxpayers of certain other states is a violation of the Equal
Protection Clause in the Fourteenth Amendment of the U.S. Constitution.
G. The Tenth Amendment of the U.S. Constitution states that "The powers not
delegated to the United States by the Constitution, nor prohibited by it to the states,
are reserved to the states respectively, or to the people." Issues regarding health care
and health insurance were never delegated to the federal government by the states
and, thus, are reserved to the states. SB NO. 26
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H. Article IV, Section 2, of the U.S. Constitution declares that the citizens of any one
state shall be entitled to the same treatment as any other states. The legislation being
currently debated in the U.S. Congress would provide an exemption from certain
requirements for other states but would require Louisiana citizens to participate fully
in mandated insurance coverage. The failure to treat all states equally and fairly
would violate the U.S. Constitution.
Proposed law provides that no law or rule shall compel, directly or indirectly, any person,
employer or health care provider to participate in any health care system or health insurance
plan.
Proposed law provides that an individual 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.
Proposed law provides that a health care provider shall not be required to pay penalties or
fines for accepting direct payment from a person or employer for lawful health care services,
unless the health care provider has entered into a provider agreement with Medicare,
Medicaid or a private insurance company, thereby limiting the amounts that can be charged
to for services rendered to the patient.
Proposed law provides that a health care provider may accept or refuse to participate in any
health care program or health care insurance plan operated by any government entity and
shall not be compelled to do so as a condition of licensure.
Proposed law provides that it does not affect and shall have no impact on any of the
following:
A. Emergency health care services a health care provider or hospital is mandated to
perform in the federal statute known as the "Examination and treatment for
emergency medical conditions and women in Labor" which requires hospitals
accepting Medicaid and Medicare payments to treat emergency medical conditions
and pregnant women in labor, regardless of the patient's ability to pay.
B. Provider contracts, whether negotiated by private insurance companies, Medicare or
Medicaid, which prohibit providers from accepting payments which are in excess of
those allowed by the provider contracts.
C. Health care services which are otherwise not permitted by law.
D. Medical care provided pursuant to laws related to worker's compensation which
requires employers to provide health care for injured workers.
Proposed law provides for the following definitions:
(1)"Compel" means any action by government which coerces an individual to
participate in any health care system or health insurance plan and for which the
failure to comply will result in penalties or fines.
(2)"Direct payment" or "pay directly" means payment for lawful health care services
which are paid by any person or entity other than a government entity or private third
party, private health plan.
(3)"Health care system" means any public or private entity whose function or purpose
is the management and enrollment of individuals for payment, in full or in part, for
health care services, health care data, or health care information for its participants.
(4)"Lawful health care services" means any health related service or treatment to the SB NO. 26
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extent that the service or treatment is permitted or not prohibited by law that may be
provided by persons or business licenced or permitted to offer such services.
(5)"Medicaid" means the program provided for in Subchapter XIX of Chapter 7 of Title
42 of the United States Code which program provides federal grants to the states for
the purpose of providing health services to certain low income individuals.
(6)"Medicare" means the federal health insurance program provided for in Subchapter
XVIII of Chapter 7 of Title 42 of the United States Code.
(7)"Penalties and 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.
Proposed law provides that any state or local institution, board, commission, department,
agency, official or employee who coerces, or attempts to coerce, any individual to purchase
health insurance or to participate in a particular health system shall be guilty of a
misdemeanor and shall be subject to a fine of not more than $500 or to imprisonment for not
more than five days.
Effective August 15, 2010.
(Adds R.S. 22:971.2)