HOUSE 3rd Reading Unamended May 4, 2011 HOUSE Amended 2nd Reading May 3, 2011First Regular Session Sixty-eighth General Assembly STATE OF COLORADO REENGROSSED This Version Includes All Amendments Adopted in the House of Introduction LLS NO. 11-0779.01 Christy Chase HOUSE BILL 11-1273 HOUSE SPONSORSHIP Nikkel and Stephens, Gardner B., Acree, Barker, Baumgardner, Becker, Beezley, Bradford, Brown, Conti, Coram, DelGrosso, Gerou, Holbert, Joshi, Kerr J., Liston, Looper, Massey, McNulty, Murray, Priola, Ramirez, Scott, Sonnenberg, Summers, Swalm, Swerdfeger, Szabo, Vaad, Waller SENATE SPONSORSHIP Kopp, Harvey, Brophy, Cadman, Grantham, King K., King S., Lambert, Lundberg, Mitchell, Renfroe, Roberts, Scheffel, Spence, White House Committees Senate Committees Health and Environment Appropriations A BILL FOR AN ACT Concerning the enactment of the "Health Care Opportunity and Patient Empowerment Act" to authorize the state to negotiate with other states to develop an interstate compact for purposes of allowing the signatory states to opt out of federal law so as to regulate health care at the state level. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill enacts the "Health Care Opportunity and Patient Empowerment Act", which requires the executive directors of the departments of health care policy and financing, public health and environment, and labor and employment and the commissioner of insurance, in consultation with other state agencies and stakeholders they deem appropriate, to develop a health care interstate compact that would allow signatory states to opt out of federal health care reform legislation as well as any other federal law regulating health care and instead regulate health care in each signatory state in the manner determined appropriate for that state by its legislature. The executive directors and commissioner are to keep the general assembly apprised of its progress through periodic reports to specified committees of reference of the senate and house of representatives. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Article 60 of title 24, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PART to read: PART 35 HEALTH CARE INTERSTATE COMPACT 24-60-3501. Short title. This part 35 shall be known and may be cited as the "Health Care Opportunity and Patient Empowerment Act". 24-60-3502. Execution of compact. The general assembly hereby approves and the governor is authorized to enter into a compact on behalf of this state with any other state or states legally joining therein in the form substantially as follows: ARTICLE I PURPOSE (a) The member states find that: (1) The separation of powers, both among the branches of the federal government and between federal and state authority, is essential to the preservation of individual liberty; (2) The United States constitution creates a federal government of limited and enumerated powers and reserves to the states or to the people those powers not granted to the federal government; (3) The federal government has enacted many laws that have preempted state laws with respect to health care and have placed increasing strain on state budgets, impairing other responsibilities such as education, infrastructure, and public safety; (4) The member states seek to protect individual liberty and personal control over health care decisions and believe the best method to achieve these ends is to vest regulatory authority over health care in the states; (5) By acting in concert, the member states may express and inspire confidence in the ability of each member state to govern health care effectively; and (6) The member states recognize that consent of the United States congress may be more easily secured if the member states collectively seek consent through an interstate compact as set forth in this part 35. ARTICLE II DEFINITIONS As used in this compact, unless the context clearly indicates otherwise: (a) "Commission" means the interstate advisory health care commission established in article VII of this compact. (b) "Current year inflation adjustment factor" means the total gross domestic product deflator in the current year divided by the total gross domestic product deflator in federal fiscal year 2010. Total gross domestic product deflator shall be determined by the bureau of economic analysis in the United States department of commerce. (c) "Effective date" means the date upon which this compact becomes effective for purposes of the operation of state and federal law in a member state, which shall be the later of: (1) The date upon which this compact is adopted under the laws of the member state; and (2) The date upon which the United States congress consents to this compact pursuant to article I, section 10 of the United States constitution, after at least two member states adopt the compact. (d) (1) "Health care" means care, services, supplies, or plans related to the health of an individual and includes the following: (i) Preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care and counseling, service, assessment, or procedure with respect to the physical or mental condition or functional status of an individual or that affects the structure or function of the body; (ii) The sale or dispensing of a drug, device, equipment, or other item in accordance with a prescription; and (iii) An individual or group plan that provides, or pays the cost of, care, services, or supplies related to the health of an individual. (2) "Health care" does not include any care, services, supplies, or plans provided by the United States departments of defense and veterans affairs or provided to Native Americans. (e) "Member state" means a state that is a signatory to this compact and has adopted it under the laws of that state. (f) "Member state base funding level" means a number equal to the total federal spending on health care in the member state during federal fiscal year 2010. On or before the effective date, each member state shall determine the member state base funding level for its state, and that number shall be binding on the member state. The preliminary estimate of the member state base funding level for the state of Colorado is eight billion nine hundred seven million dollars. (g) "Member state current year funding level" means the member state base funding level multiplied by the member state current year population adjustment factor multiplied by the current year inflation adjustment factor. (h) "Member state current year population adjustment factor" means the average population of the member state in the current year less the average population of the member state in federal fiscal year 2010, divided by the average population of the member state in federal fiscal year 2010, plus one. Average population in a member state shall be determined by the United States bureau of the census. ARTICLE III PLEDGE The member states shall take joint and separate action to secure the consent of the United States congress to this compact in order to return the authority to regulate health care to the member states consistent with the goals and principles articulated in this compact. The member states shall improve health care policy within their respective jurisdictions and according to the judgment and discretion of each member state. ARTICLE IV LEGISLATIVE POWER The legislatures of the member states have the primary responsibility to regulate health care in their respective states. ARTICLE V STATE CONTROL Each member state, within its state, may suspend by legislation the operation of all federal laws, rules, regulations, and orders regarding health care that are inconsistent with the laws and regulations adopted by the member state pursuant to this compact. Federal and state laws, rules, regulations, and orders regarding health care will remain in effect unless a member state expressly suspends them pursuant to its authority under this compact. For any federal law, rule, regulation, or order that remains in effect in a member state after the effective date, that member state shall be responsible for the associated funding obligations in its state. ARTICLE VI FUNDING (a) Each federal fiscal year, each member state shall have the right to federal moneys up to an amount equal to its member state current year funding level for that federal fiscal year, funded by congress as mandatory spending and not subject to annual appropriation, to support the exercise of member state authority under this compact. This funding shall not be conditional on any action of or regulation, policy, law, or rule being adopted by the member state. (b) By the start of each federal fiscal year, congress shall establish an initial member state current year funding level for each member state, based upon reasonable estimates. The final member state current year funding level shall be calculated, and funding shall be reconciled by the United States congress based upon information provided by each member state and audited by the United States government accountability office. ARTICLE VII INTERSTATE ADVISORY HEALTH CARE COMMISSION (a) The interstate advisory health care commission is established. The commission consists of members appointed by each member state through a process to be determined by each member state. A member state may not appoint more than two members to the commission and may withdraw membership from the commission at any time. Each commission member is entitled to one vote. The commission shall not act unless a majority of the members are present, and no action shall be binding unless approved by a majority of the commission's total membership. (b) The commission may elect from among its membership a chairperson. The commission may adopt and publish bylaws and policies that do not conflict with this compact. The commission shall meet at least once a year and may meet more frequently. (c) The commission may study issues of health care regulation that are of particular concern to the member states. The commission may make nonbinding recommendations to the member states. The legislatures of the member states may consider these recommendations in determining the appropriate health care policies in their respective states. (d) The commission shall collect information and data to assist the member states in their regulation of health care, including assessing the performance of various state health care programs and compiling information on the prices of health care. The commission shall make this information and data available to the legislatures of the member states. Notwithstanding any other provision in this compact, no member state shall disclose to the commission the health information of any individual, nor shall the commission disclose the health information of any individual. (e) The commission shall be funded by the member states as agreed to by the member states. The commission shall have the responsibilities and duties as may be conferred upon it by subsequent action of the respective legislatures of the member states in accordance with the terms of this compact. (f) The commission shall not take any action within a member state that contravenes any state law of that member state. ARTICLE VIII CONGRESSIONAL CONSENT This compact shall be effective on its adoption by at least two member states and consent of the United States congress. This compact shall be effective unless the United States congress, in consenting to this compact, alters the fundamental purposes of this compact, which are: (a) To secure the right of the member states to regulate health care in their respective states pursuant to this compact and to suspend the operation of any conflicting federal laws, rules, regulations, and orders within their states; and (b) To secure federal funding for member states that choose to invoke their authority under this compact, as prescribed by article 6 of this compact. ARTICLE IX AMENDMENTS The member states, by unanimous agreement, may amend this compact from time to time without the prior consent or approval of congress, and any amendment shall be effective unless, within one year, congress disapproves that amendment. Any state may join this compact after the date on which congress consents to the compact by adoption into law under its state constitution. ARTICLE X WITHDRAWAL; DISSOLUTION Any member state may withdraw from this compact by adopting a law to that effect, but no such withdrawal shall take effect until six months after the governor of the withdrawing member state has given notice of the withdrawal to the other member states. A withdrawing state shall be liable for any obligations that it may have incurred prior to the date on which its withdrawal becomes effective. This compact shall be dissolved upon the withdrawal of all but one of the member states. SECTION 2. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.