Amend the bill, as and if amended, Part IB, Section 117, GENERAL PROVISIONS, page 562, after line 3, by adding an appropriately numbered new proviso to read:
/ 117.____ (GP: ACA Anti-Commandeering) (A) For purposes of this provision:
(1) 'ACA' means the Patient Protection and Affordable Care Act, signed by President Barack Obama on March 23, 2010, and any amendments thereto.
(2) 'health insurance' means any policy of insurance that meets the definition provided by Section 38-1-20.
(3) 'health insurance exchange' means an American Health Benefit Exchange established by the federal government, any state, or political subdivision of a state, or any other entity that may otherwise qualify to establish an exchange pursuant to the ACA.
(4) 'public body' means any department of the State, any state board, commission, agency, and authority, any public or governmental body or political subdivision of the State, including counties, municipalities, townships, and school districts.
(B) The General Assembly finds:
(1) that significant portions of the ACA constitute an unprecedented overreach by the U.S. Congress and the federal government into areas of law and regulation that involve the exercise of powers and duties that are patently reserved to the States and the people themselves under the United States Constitution;
(2) that those portions of the ACA that require employers to provide and individuals to obtain health insurance are particularly offensive to the rights and freedoms of the residents of this State;
(3) that pursuant to and in furtherance of the fundamental principle of state sovereignty, the federal government may not command our State's officers, agents, or employees to participate in the enforcement or facilitation of any federal program the General Assembly determines to be offensive to fundamental freedoms guaranteed to our State's residents;
(4) that this right to be free from the commandeering hand of the federal government has been most notably recognized by the United States Supreme Court in Printz v. United States when the Court held: 'The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program;'
(5) that the State has the duty and obligation to refuse to participate in the facilitation and enforcement of those provisions of the ACA that are patently offensive to the principle of state sovereignty and so significantly infringe upon the rights and freedom of all South Carolinians; and
(6) that the anti-commandeering principles recognized by the U.S. Supreme Court in Printz v. United States are predicated upon the constitutional proposition that the State has the absolute and sovereign right to interpose and refuse to assist in the enforcement of any federal program, and the prohibitions contained in this article are a full and fair exercise of the sovereign power of this State in support of and in compliance with the anti-commandeering principles recognized by the U.S. Supreme Court in Printz v. United States.
(C) During the current fiscal year a public body supported by state funds or a public official, officer, or employee of a public body supported by state funds shall not expend any state funds, utilize any state assets, or take any other action to:
(1) implement or participate in the establishment of a health insurance exchange by the State or a political subdivision of the State, or assist in the enrollment of any person in any health insurance exchange, or provide any other material support, participation, or assistance, with or to a federal agency or employee, or any other person acting on behalf of, in conjunction with, or in support of, any health insurance exchange offering health insurance to employers or residents of this State in order to facilitate any portion of Section 1501 and 1513 of the ACA, commonly known as the ACA's individual mandate to purchase insurance coverage and the ACA's employer mandate to provide health insurance coverage, respectively. This subsection does not prohibit a public official, officer, or employee of a public body from engaging in incidental communication with a person in response to a request or question concerning how the person may obtain health insurance, including but not limited to, referring the person to a federal agency or federal agency's website that provides information on or allows a person to enroll in a health insurance exchange;
(2) enforce or aid in the enforcement of Section 1501 of the ACA requiring an individual to maintain minimum essential coverage, commonly known as the ACA's individual mandate to purchase insurance coverage; and
(3) enforce or aid in the enforcement of Section 1513 of the ACA imposing a shared responsibility on employers who do not provide health insurance to full-time employees, commonly known as the employer's mandate to provide health insurance coverage; and
(4) engage in any activity that aids in the enforcement of any federal act, law, order, rule, or regulation intended to give effect to or facilitate the enforcement of Sections 1501 or 1513 of the ACA;
(D) During the current fiscal year a public body supported by state funds or a public official, officer, or employee of a public body supported by state funds shall not apply for, seek, or receive any public or private grant, allocation, donation, or funds of any kind to be used to support the enrollment of any person in any health insurance exchange offering health insurance to employers or residents of this State in order to facilitate any portion of Section 1501 and 1513 of the ACA. However, this article does not prohibit the application, authorization, receipt, or expenditure of funds from a federal grant, federal grant program, or other source of federal funds that existed prior to March 23, 2010, that was initially applied for, authorized, or received by or for a public body prior to the effective date of this article. This article does not prohibit the application, authorization, receipt, or expenditure of funds from a grant or grant program authorized or provided for by the ACA, if the grant application or program requirements are posted on the public body's website for a period of at least ten days and the public is provided a reasonable opportunity to comment, and the authorized person acting on behalf of the public body applying for the grant or grant program affirms in writing and under oath, that the funds received from the grant or grant program will not be used to facilitate the enrollment of a person in a health insurance exchange, the grant or grant program does not obligate the State to take any action or obligate any state funds in order to receive the grant or grant program funds, and the grant or grant program does not require any change in state law or regulation.
(E) The prohibitions contained in this provision shall not apply to:
(1) those portions of the ACA that set forth standards, regulations or other requirements that must be discharged by the South Carolina Department of Health and Human Services in connection with providing Medicaid services to those who qualify for these services under the state standards that are currently in place, which do not and must not include those who would qualify under the Medicaid population expansion authorized by the ACA as set forth in 42 U.S.C. Section 1396a(a)(10)(A)(i)(VIII);
(2) those portions of the ACA which provide the South Carolina Department of Health and Human Services with flexibility in administering the Medicaid program;
(3) those portions of the ACA that set forth standards, regulations or other requirements that must be discharged by providers of Medicare and Medicaid services in order to secure Medicare and Medicaid reimbursements;
(4) those portions of the ACA that relate to or affect the discharge by the South Carolina Department of Revenue of its obligations pursuant to any shared or reciprocal programs between the State and the federal government, to include, but not limited to, the State Income Tax Levy Program;
(5) those portions of the ACA and any enacting or subsequent standards, regulations, or other requirements that must be discharged by or have a material impact on the duties of the South Carolina Department of Insurance in connection with the regulation of the business of insurance in this State or that impact, or have the potential to impact, the regulation of the business of insurance in this State and the overall health of the health insurance marketplace, including the affordability and availability of coverage. This further includes activities related to consumer education and assistance on health insurance issues as long as the department does not enroll consumers in coverage offered through the health insurance exchange as prohibited pursuant to this provision; and
(6) those portions of the ACA or any regulations or policies implemented pursuant to the ACA that relate to or affect the South Carolina Department of Social Services' obligations pursuant to shared or reciprocal programs, and grants such as Temporary Assistance for Needy Families (TANF), between the State and federal government, and activities undertaken in cooperation with other state or local public bodies that are permitted pursuant to this section.
(F) A violation of this section is considered sufficient cause to remove or terminate, as provided by law, a state officer, official, or employee.
(G) A public official, officer, or employee of a public body is not prohibited by this provision from complying with federal laws and relevant statutes governing their respective obligations and responsibilities, including their responsibility to administer the Medicaid program in compliance with federal statutes, regulations, and policies, nor does this Act limit the South Carolina Department of Health and Human Services' ability to apply for, request, or otherwise develop innovation waivers as set forth in Section 1332 of the ACA. Further, the provisions contained in this provision do not preclude a state agency that is authorized to adjust provisions contained in health and dental insurance plans offered or administered by the agency from adjusting the insurance plans it offers or administers to include provisions that are similar to, or the same as, provisions that are contained in the ACA if the agency offering or administering the insurance plan makes a determination independent of the purported directives of the ACA, that the included provisions are in the best interests of those insured and do not threaten the insurance provider's fiscal stability. /
Renumber sections to conform.
Amend sections, totals and title to conform.