Introduced Version






SENATE BILL No. 319

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 1-1-2.5.

Synopsis: Health care choice. Declares state sovereignty with respect to health care choice under the Constitution of the United States, federal law, and the Constitution of the State of Indiana. Specifies requirements for health care providers and the attorney general to ensure sovereignty.

Effective: July 1, 2010.





Schneider, Kruse, Stutzman, Charbonneau




    January 12, 2010, read first time and referred to Committee on Judiciary.







Introduced

Second Regular Session 116th General Assembly (2010)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2009 Regular and Special Sessions of the General Assembly.

SENATE BILL No. 319



    A BILL FOR AN ACT to amend the Indiana Code concerning general provisions.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 1-1-2.5; (10)IN0319.1.1. -->     SECTION 1. IC 1-1-2.5 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]:
     Chapter 2.5. Effect of Federal Health Laws
    Sec. 1. As used in this chapter, "federal law" includes implementation of federal law through federally initiated regulation, government action or inaction, or mandate.
    Sec. 2. As used in this chapter, "health care choice" means the freedom of Indiana residents to choose the manner in which their human health and fitness are maintained
. Health care choice includes an individual's natural, inalienable right to choose not to participate in a health care system or program.
    Sec. 3. As used in this chapter, "health care" includes the following:
        (1) Products and services rendered by health care providers.
        (2) Health care delivery.
        (3) Health and dietary products.
        (4) Health care products, equipment, and methods.
        (5) Patient information.
    Sec. 4. As used in this chapter, "health care provider" includes persons located in Indiana that are providers, or the staff of providers, of any of the following:
        (1) Medical care.
        (2) Dental care.
        (3) Mental health care and counseling.
        (4) Treatment services or products, including manufacturers and distributors.
        (5) Laboratory or diagnostic services or equipment, including manufacturers and distributors.
        (6) Medicine.
        (7) Materials and products.
        (8) Hospital services.
        (9) Long or short term health facility or institution services.
        (10) Pharmaceuticals and pharmaceutical services, including manufacturers and distributors.
        (11) Private health care insurance.
    Sec. 5. As used in this chapter, "patient" refers to a patient who is a resident of Indiana.
    Sec. 6. As used in this chapter, "patient information" includes the following:
        (1) An individual's personal or health information.
        (2) An individual's name, personal address, or contact information.
        (3) An individual's Social Security number or other identifying code.
        (4) Data concerning an individual's health, fitness, gender, past and current conditions, family health history, or genetic makeup and predispositions.
    Sec. 7. The general assembly, on behalf of the residents of Indiana, declares that the authority for this chapter is as follows:
        (1) The Tenth Amendment to the Constitution of the United States guarantees to each state and its residents all powers not granted to the federal government elsewhere in the Constitution of the United States and reserves to the state and residents of Indiana certain powers as they were understood at the time Indiana became a state in 1816 and when the Bill of Rights to the Constitution of the United States was ratified in 1791. The Congress of the United States has not expressly preempted, through the formal process of amending the

Constitution of the United States, the rights of residents of Indiana concerning health care choice.
        (2) The Ninth Amendment to the Constitution of the United States guarantees to the people rights not granted in the Constitution of the United States and reserves to the residents of Indiana certain rights, as they were understood at the time Indiana became a state in 1816 and when the Bill of Rights to the Constitution of the United States was ratified in 1791. The Congress of the United States has not expressly preempted, through the formal process of amending the Constitution of the United States, the rights of residents of Indiana concerning health care choice. The residents of Indiana hold that any intrusion by the federal government on health care choice disparages their natural, inalienable rights.
        (3) The regulation of intrastate commerce is vested in the states under the Ninth and Tenth Amendments to the Constitution of the United States, particularly if not expressly preempted by federal law. The Congress of the United States has not expressly preempted, through the formal process of amending the Constitution of the United States, state regulation of intrastate commerce regarding the use of health care by, or delivery of health care to, residents of Indiana.
        (4) In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court of the United States assumed a constitutionally mandated zone of personal privacy that must remain free of government regulation except in the most exceptional circumstances. The residents of Indiana:
            (A) hold that their health care, health care decisions, and patient information are protected within a constitutionally mandated zone of personal privacy that is free of government regulation; and
            (B) retain the right to opt out of any government mandated health care program and to opt out of having their patient information entered into governmental data bases and other government mandated information tracking systems.
        (5) In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Supreme Court of the United States explained, in regard to personal privacy, that ".these matters, involving the most intimate and personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and the mystery of

human life.". The residents of Indiana:
            (A) hold that their health care, health care decisions, and patient information are protected as part of their most intimate and personal dignity and autonomy, and are central to the liberty protected by the Fourteenth Amendment to the Constitution of the United States; and
            (B) retain the right to opt out of any government mandated health care program and to opt out of having their patient information entered into governmental data bases and other government mandated information tracking systems.
        (6) Inherent rights of the people are clearly recognized in Article 1, Section 1, of the Constitution of the State of Indiana, which declares that all people are endowed with certain inalienable rights, including liberty, the pursuit of happiness, and that all power is inherent in the people. The residents of Indiana hold that:
            (A) it is a self-evident truth that health care choice is inherent to their pursuit of happiness; and
            (B) federal law that restricts health care choice is a transgression of power on the residents' inalienable right of health care choice.
    Sec. 8. Health care choice rights are reserved to the residents of Indiana under the Ninth, Tenth, and Fourteenth Amendments to the Constitution of the United States, are wholly intrastate activities exempted from the Commerce Clause, Article I, Section 8, Clause 3, of the Constitution of the United States, and are not subject to federal law, as follows:
        (1) Health care rendered to residents of Indiana by health care providers in Indiana is declared not to have traveled in interstate commerce.
        (2) Patient information is declared to be individual private property of the residents of Indiana, subject to all privacy and legal rights and protections provided by law, and not to have traveled in interstate commerce.
        (3) Commercial arrangements and business relationships used by health care providers in Indiana are declared not to have traveled in interstate commerce.
        (4) Health care purchased, used, or received in Indiana by residents of Indiana is declared not to have traveled in interstate commerce.
        (5) Sales, dispensing, use, purchase, or receipt of health care in Indiana is declared not to have traveled in interstate

commerce, regardless of whether the health care was previously imported from outside Indiana.
        (6) Health and dietary products produced, served, or consumed in Indiana by residents of Indiana are declared not to have traveled in interstate commerce, regardless of whether the health and dietary products or basic materials used in their manufacture were previously imported from outside Indiana.
        (7) The authority of the Congress of the United States to regulate basic materials in interstate commerce does not include authority to regulate items produced from the basic materials and used or received in Indiana as follows:
            (A) Importation from outside Indiana of basic materials subject to federal law regulating interstate commerce and used in Indiana to produce health care products, equipment, and methods does not subject to federal law the health care products, equipment, and methods attached to or used in conjunction with health care rendered in Indiana.
            (B) Importation from outside Indiana of basic materials subject to federal law regulating interstate commerce and used in Indiana to produce health and dietary products that are used or consumed in Indiana by residents of Indiana does not subject the health and dietary products to federal law regulating interstate commerce.
    Sec. 9. The Indiana exemption from federal law under this chapter includes the following types of federal law:
        (1) Federal law that mandates national health insurance or other forms of health insurance for residents of Indiana or health care providers in Indiana.
        (2) Federal law that mandates, regulates, or controls employer decisions concerning the type, benefits, and amount of health insurance provided or not provided to employees.
        (3) Federal law that:
            (A) intervenes in the relationship between health care providers and patients in making health care decisions; or
            (B) imposes requirements, restrictions, or limitations on health care decisions in Indiana.
        (4) Federal law that rations or limits health care choices available to health care providers and patients, including rationing or limiting health care choices based on a patient's physical or mental condition, age, gender, genetic

information, preexisting conditions, family history, dietary habits, current and past personal behaviors, race, nationality, or political, religious, social, or professional affiliations.
        (5) Federal law that mandates use by health care providers or patients of federal or governmental data bases, computer and electronic or manual record keeping methods, or other systems intended to track or manage patient information.
        (6) Federal law that requires health care providers to perform administration, implementation, management, or execution of policies and laws of the federal government or agencies of the federal government to ensure compliance with the policies and laws, whether compensated or uncompensated.
        (7) Federal law that mandates, regulates, or controls commercial arrangements or business relationships of health care providers.
        (8) Federal law that prohibits, regulates, or controls fee for service payments for lawful health care delivery.
        (9) Federal law that mandates, regulates, or controls health care provider:
            (A) prices, revenue, costs, or profits;
            (B) business scope, size, or volume; or
            (C) salary, compensation, or benefits.
        (10) Federal law that attempts to:
            (A) force compliance with federal law; and
            (B) punish or discourage the exercise of protected rights;
        by imposing civil or criminal penalties, fines, taxes, salary or wage withholding or surcharge, or fees with a similar effect, on health care providers, patients, or employers.
        (11) Federal law that mandates, restricts, or controls actions and behaviors of a health care provider as a consequence of the health care provider having received:
            (A) education at a publicly funded school; or
            (B) an educational loan, federal funding, a stipend, or a research grant from the federal government or an agency or other entity affiliated with the federal government.
        (12) Federal law that mandates, regulates, or controls the production, sale, use, or consumption of health care.
        (13) Federal law that mandates, regulates, or controls the actions, policies, or behaviors of trade groups, associations, or members of trade groups or associations related to health care.
    Sec. 10. To ensure that health care in Indiana is exempt from

federal law as described in this chapter, the following apply:
        (1) Health care providers shall retain a paper or electronic record for each patient containing proof that the patient is a resident of Indiana at the time health care is rendered, including the name of the health care provider rendering the health care and the location where the health care is rendered.
        (2) The record required by subdivision (1) must include retention of a photocopy, with a date stamp, of the patient's Indiana driver's license or other equivalent legal identification. A parent's or guardian's record serves as the record required by subdivision (1) for minors and dependents.
        (3) If identification required by subdivision (1) is not available and a health care provider reasonably believes that the patient is a resident of Indiana, the health care provider shall not refuse to provide health care to the patient.
        (4) A health care provider shall:
            (A) inform each patient of the patient's choice of opting out of having the patient's patient information included in a federal government or other data base; and
            (B) provide to each patient a paper or electronic opt out form approved by the state department of health to be signed and dated by the patient and retained by the health care provider in the patient's record.
        (5) Each health care provider and other person engaged in health care related activities in Indiana shall annually submit to the state department of health a paper or electronic form approved by the state department of health reflecting the name, location, and type of health care provider or other business and affirming that each business is wholly located in Indiana.
        (6) Each producer of a health care product shall label each product that is manufactured in Indiana and intended solely for use or consumption in Indiana by residents of Indiana as follows:
            "Made in Indiana - not to be exported from or taken out of Indiana".
        (7) All forms and records described in this section are subject to audit or inspection.
    Sec. 11. Health care choice is retained by the residents of Indiana as follows:
        (1) The following individuals reserve the right to change or opt out of any federal, state, or private health care insurance

or other program at any time without penalty or reason:
            (A) Residents of Indiana.
            (B) New residents of Indiana, whether arriving from other states, territories, or countries.
            (C) Former residents of Indiana who return to Indiana.
            (D) Residents of Indiana who are temporarily located outside Indiana.
            (E) Parents or guardians who are described in clause (A), (B), (C), or (D) on behalf of minors or dependents.
        (2) New residents of Indiana, whether arriving from other states, territories, or countries, are not required to adhere to restrictions placed on their health care choice from their prior place of residency.
    Sec. 12. This chapter does not prohibit the delivery of health care in Indiana to individuals who are not residents of Indiana.
    Sec. 13. (a) The attorney general shall provide for the legal defense of this chapter and legal defense of health care providers and residents of Indiana from actions of the federal government, agencies of the federal government, and other legal and regulatory actions, including the following:
        (1) Attempts to control or limit heath care choice, treatment options, or innovative treatment approaches.
        (2) Requiring health care providers to participate in federal programs or mandating use of national health insurance or other programs.
        (3) Use of direct and indirect means of control intended to manipulate or force compliance with federal law, including the following:
            (A) Use of federal tax codes.
            (B) Use of investment tax credits.
            (C) Use of licensing or other fees.
            (D) Regulations or executive orders.
            (E) Withholding of federal funds.
        (4) Attempts to limit commerce between persons:
            (A) within Indiana; or
            (B) in Indiana and in other states, countries, or territories.
        (5) Attempts to mandate or control health care provider:
            (A) prices, revenue, costs, or profits;
            (B) business scope, size, or volume; or
            (C) management.
        (6) Actions by the federal government or educational or advocacy programs in primary and secondary schools and

institutions of higher learning that are intended to influence public opinion and behavior.
        (7) Direct or indirect coercive actions by the federal government on trade groups or associations that are intended to influence, punish, or penalize health care providers and force compliance with federal law.
    (b) The attorney general shall seek out and encourage other states and parties that support the principles described in this chapter to participate in common legal defense and action, including seeking amici curiae from institutions, other organizations, and constitutional scholars.
    (c) Actions by the attorney general under this section do not limit independent legal actions or other remedies pursued by health care providers, individuals, or groups of residents of Indiana.