“Anti-Commandeering”

H.3020 is a reintroduction of one of the many versions of last year’s anti-commandeering bill, designed to slow if not halt the implementation of certain provisions of the Affordable Care Act (ACA, or more commonly Obamacare) in South Carolina. Unfortunately, H.3020 is a reintroduction of one of the weaker House versions of the bill. The bill would prohibit public employees from assisting in the creation of a healthcare exchange or from assisting in the enrollment of any individual in a healthcare exchange. Public employees would also be prohibited generally from assisting in the enforcement of other provisions of the ACA, most notably the individual mandate to acquire health insurance and the employer mandate to provide health insurance. The bill would also prohibit South Carolina from expanding Medicaid as described in the ACA (although the state has already been expanding Medicaid in its own way outside the ACA).

There are however exceptions to the legislation’s general prohibitions on public employees participating in any way in programs or regulations connected to the ACA. These exceptions include: the allotment of Medicaid under current standards; portions of the ACA that give states flexibility in administering Medicaid; ACA regulations that must be carried out by service providers in order to secure Medicaid/Medicare reimbursements; and ACA regulations that must be administered by the state Department of Insurance. Essentially, then, even if the bill in its current form were to pass, the state would still comply with components of the Affordable Care Act.

What’s most notable about this bill is what’s missing. The original Anti-Commandeering amendment filed in the Senate last year contained a provision that required federal ACA dollars be treated on a contractual basis. The Senate proposal (as first outlined by SCPC) would have established a process by which all state entities, before applying for and accepting federal dollars, would explain – in detail – what the money is for, what policy prerogatives the state must cede to the federal government in order to get the money, and how the consequently funded program, regulations, or mandates will affect individuals and businesses. Agencies and departments would not be allowed to request or accept federal funds tied to the ACA that are not specifically listed in the governor’s executive budget. Each program funded in whole or in part by ties to the ACA would receive an up or down vote in both legislative chambers. The entire process would be repeated annually.

The idea behind last year’s Senate amendment is both reasonable and practical: It would force the governor and legislators to take responsibility for the ACA-related funds they bring into this state. What makes the implementation of the ACA possible in the first place, after all, is the longstanding practice by state officials of trading state prerogatives for federal money. The absence of this provision is a gaping hole in the new “anti-commandeering bill” which will prohibit the bill from being as effective as it can be.

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