Supreme Court rules in favor of subsidies, a blow to Rick Scott's promise to fight law
Gov. Rick Scott's promise to fight to repeal the federal health care law was dealt another blow June 25 when the U.S. Supreme Court ruled 6-3 to uphold subsidies for consumers who purchase insurance in the federal exchange as part of the Affordable Care Act.
That means that millions of Americans, including 1.3 million in Florida, can keep their subsidies to help them afford insurance. Since Gov. Rick Scott and the state Legislature did not want to establish its own insurance exchange under the law, the state is one of 34 that relies on the federally-run marketplace at HealthCare.gov.
Scott, a former health care company executive, began his fight against the Affordable Care Act before he was a candidate in Florida.
In 2009, Scott spent $5 million of his own money to form Conservatives for Patients' Rights, a group that fought Obama's original health care proposal.
In 2010, Scott said he would join efforts to repeal the health care law, including supporting a constitutional amendment that "prohibits the federal government from imposing President Obama's individual mandate, to protect Floridians' freedom to control their health care choices."
At PolitiFact Florida we have been tracking dozens of Scott's promises, including his one to fight the Affordable Care Act, since he won his first campaign in 2010 and was re-elected in 2014. And we have fact-checked many claims by Scott related to the Affordable Care Act.
We gave Scott a Promise Kept when he succeeded in getting the Legislature in 2011 to agree to place a question on the ballot that would have attempted to invalidate the health care law's insurance mandate. But voters rejected the amendment in 2012. And Scott had other setbacks that year: The U.S. Supreme Court upheld the law and Obama was re-elected. After the 2012 election, we moved this promise to Compromise as Scott retooled his efforts but his chances dimmed.
While Scott has consistently opposed the federal health care law overall, he has been inconsistent on a key component: whether to expand Medicaid.
After rejecting the idea during most of his first term, in 2013 he announced that he had gained a new perspective after his mother, who raised five children while single, died. He recalled how she struggled to afford treatment for his brother's hip disease.
"No mother, or father, should despair over whether or not they can afford – or access – the health care their child needs," Scott said. At the time Scott announced that "we will support an expansion of our Medicaid program under the new health care law."
But in 2015 amid a fight with the federal government over health care funding, Scott said the state shouldn't expand Medicaid and that it would be "hard to understand how the state could take on even more federal programs." We gave Scott a Full Flop.
In April, the Legislature ended the session early without agreeing on a budget amid a fight over Medicaid expansion and the loss of federal matching funding for the Low Income Pool, or LIP. Washington had warned the state in 2014 that it would not renew LIP but Scott sued the federal government, saying the federal government was forcing the state into expanding Medicaid by tying the LIP to an expansion decision.
In a special session in June, the Legislature reached an agreement after a compromise with the federal government to provide a reduced amount of LIP money while overhauling the program. The federal contribution, combined with state money, helps pay for uninsured and underinsured patient care, but the state will not expand Medicaid. Scott signed the budget June 23.
Scott then dropped his lawsuit.
"Florida saw a tremendous win for low income families this week when the Obama administration finally agreed to continue funding part of Florida's Low Income Pool program even though our state did not expand Obamacare," he said in a press release. "Because of this great victory, we have decided to dismiss our lawsuit against the Obama administration for attempting to coerce Florida into expanding Obamacare."
Alan Levine, who served on Gov. Rick Scott's transition team in 2010, said that all Scott can do is continue to refuse to expand Medicaid and refuse to create a state exchange. (Levine said that he personally supported Medicaid expansion.)
"I don't think that we are done," Levine said. "In January 2017 there will be a new president, and if it happens to be one that wants to repeal Obamacare, Rick Scott will still be governor and still be in a position to advocate for repeal."
With not much for Scott to do at the moment, this promise rates Stalled.
Gov. Rick Scott, Press release about dropping LIP lawsuit and court notice, June 25, 2015
Miami Herald, "Supreme Court rules Obamacare subsidies OK, 1.3 million Floridians can keep subsidies," June 25, 2015
Miami Herald's Naked Politics blog, "Scott withdraws lawsuit on LIP, says it was 'essential' to getting feds to continue subsidy," June 25, 2015
Tampa Bay Times/Miami Herald, "Fight over hospital funding for poor in Florida ends quietly," June 23, 2015
Interview, Alan Levine, chair of Gov. Rick Scott's transition team and now CEO of Mountain States health Alliance and a member of the State University System of Florida Board of Governors, June 25, 2015
Scott made exception to his fight for Obamacare repeal by supporting Medicaid expansion
When Rick Scott entered his first race for governor in 2010, he was best-known for being a millionaire health care executive fighting President Barack Obama's health care law.
Scott said then he would join efforts to repeal the health care law, including supporting a constitutional amendment that "prohibits the federal government from imposing President Obama's individual mandate, to protect Floridians' freedom to control their health care choices."
When the Florida Legislature succeeded in 2011 in placing such a constitutional amendment on the ballot, PolitiFact Florida awarded Scott a Promise Kept. But the amendment didn't get the 60 percent support, so it failed.
And more importantly, the U.S. Supreme Court upheld the health care law. Scott continued to fight the law, but his chances of success dwindled after Obama won re-election, so we rated this promise a Compromise.
There have been a couple of significant developments since that time.
In February 2013, Scott summoned the media to the governor's mansion, where he announced that he still opposed setting up a state exchange but supported a three-year Medicaid expansion. Scott said that a three-year expansion would allow the state to determine if it was working before deciding whether to re-authorize it.
"On the question of Medicaid expansion, there are no perfect options. To be clear, our options are either having Floridians pay to fund this program in other states while denying health care to our citizens, or using federal funding to help some of the poorest in our state with the Medicaid program as we explore other health care reforms," he said, adding, "While the federal government is committed to paying 100 percent of the cost of new people in Medicaid, I cannot, in good conscience, deny the uninsured access to care."
Though Scott supported the Medicaid expansion, he made it clear it wasn't one of his legislative priorities and didn't push for it. The Legislature ended up rejecting the expansion, which included $51 billion in federal dollars over 10 years. PolitiFact Florida gave Scott a Full Flop for his position on Medicaid expansion. Since then, he has continued to say he supports such an expansion.
"While they spend 100 percent, I'm not going to stand in the way of the federal government doing something," he told the Miami Herald/Tampa Bay Times a couple of weeks before his Aug. 26 primary. "What I'm not willing to do is put Florida taxpayers on the hook. ... I've been very consistent and let's all remember that Obamacare is an absolute bad bill for patients, for families, for employers, for employees."
We asked Scott spokesman John Tupps if he could point to other examples of Scott fighting the health care law, and he pointed to Scott's opposition to a rate cut for Medicare Advantage that the federal government proposed in February 2014. In April, the federal government backed off of its plan for cuts in response to opposition.
Medicare Advantage costs do relate to the health care law, because that law reduces payments to private insurers to bring down future costs. President George W. Bush started Medicare Advantage, a richer plan, in hopes the increased competition would reduce costs. But those plans are actually costlier than traditional Medicare.
For the most part, Scott has remained a critic of the health care law and continues to fight it. The one exception is Scott's support for Medicaid expansion -- but he never used his power of the bully pulpit to convince the Legislature to pass it.
Scott's chances of repealing the law dimmed part way through his term, and he failed to get the constitutional amendment passed.
Overall, we continue to rate this promise Compromise.
Tampa Bay Times, "Scott's beliefs guiding policies," Aug. 9, 2014
PolitiFact, "Rick Scott opposed Medicaid expansion before he supported it," Feb. 25, 2014
Interview, John Tupps, Gov. Rick Scott spokesman, Aug. 27, 2014
Scott retools his rhetoric on health care law
Gov. Rick Scott entered the political fray on a hard-charging crusade against President Barack Obama's health care reforms.
He pledged to repeal the law -- deriding it as the "the biggest job killer ever in the history of this country” -- and to support a proposed constitutional amendment that aimed to undermine its implementation in Florida.
Politifact Florida is tracking 57 of Scott's campaign pledges, including his anti-Obamacare promise, on the Scott-O-Meter. When the Florida Legislature succeeded in 2011 in placing such a constitutional amendment on the ballot, PolitiFact Florida awarded Scott a Promise Kept.
Much has changed since then. Scott, out of political and practical necessity, is changing, too.
He's taking a cue from Florida voters, who re-elected Obama and rejected the state's anti-"Obamacare" amendment.
Almost 52 percent of Florida voters killed Amendment 1, which would have prohibited any laws that require people to have health insurance or businesses to offer it. (The amendment would likely not have had an effect on the state's compliance with the health care law anyway, as federal law supersedes state law.)
Months earlier, the U.S. Supreme Court upheld the law and its individual mandate, which imposes fines on most people for not buying health insurance, Florida led the multi-state lawsuit challenging the constitutionality of the law and its individual mandate.
Scott remained defiant and berated the court's decision in national TV interviews. He said Florida should not go forward with the optional components of law: expanding Medicaid to cover more uninsured poor people and creating a state health insurance exchange.
Like many Republicans, Scott placed his last hope for repeal of the law with the election of Mitt Romney. Obama's win signaled the health care law is likely here to stay.
Scott's reaction to the development was uncharacteristic, to say the least. He told reporters he's ready to negotiate with the federal government on implementation of the law.
"Gov. Romney did not win the election," Scott said. "So it is not an option to repeal Obamacare. My goal now is to focus on what's good for our citizens."
States have three options to create a health insurance exchange, which is essentially an online marketplace for people to comparison-shop plans. They can set it up themselves, they can set it up with the federal government, or they can do nothing and allow the federal government to do it.
It's still not exactly clear which option Scott wants to pursue. What is clear is his no-way approach to the health care law is dissipating.
Scott requested a meeting with Health and Human Services Secretary Kathleen Sebelius in a letter sent Nov. 16, the original deadline for states to tell the federal government whether they want to create exchanges. Sebelius extended the deadline for states to report how they want to proceed to Dec. 14.
"The citizens of our state are hopeful that you will accept our offer to partner with you to work together on solutions that will address the ever-increasing cost of health care and the need for better access by all Florida families to quality health care,” Scott wrote.
"While I continue to be concerned with the unanswered questions regarding the implementation of PPACA, I know that we share the same goals when it comes to lowering the costs of health care and addressing the need for better access to quality health care for not only Floridians, but for all Americans.”
Scott doesn't let on which way he prefers, choosing instead to reiterate his desire for a Medicaid waiver and using "families” five times in the first paragraph.
"He's basically saying, 'now that you've won the election, how about doing everything the way I want to do it?' " said Timothy Jost, a law professor who studies health policy at William and Mary Law School.
Still, his conciliatory reaction is a contrast from that of other Republican governors like Texas Gov. Rick Perry, who told the feds he would not set up a state-run health insurance exchange because he did not want to put "hard-working Texans on the financial hook for an unknown amount of money to operate a system under rules that have not even been written.”
The Florida director of the conservative advocacy group Americans for Prosperity applauded Perry and nine Republican governors for saying they would not create an exchange, but he criticized Scott, House Speaker Will Weatherford and Senate President Don Gaetz for sending "the exact wrong signal.”
"Florida should not agree to be the de-facto administrator of the federal government's rules, regulations and mandates,” executive director Slade O"Brien said in a statement.
There's a long way to go on the creation of an exchange. The state has wasted two years and millions of federal dollars that it could have already devoted toward setting up an online market, said Laura Goodhue, executive director of Florida CHAIN, a health advocacy nonprofit group.
She said she hopes Scott will include consumer advocates in discussions about the exchange and that he reconsiders his decision not to expand Medicaid.
"He's a businessman,” she said. "I'd like to think that he's just being reasonable.”
There's no doubt Scott supported efforts to prevent Florida from enforcing the law, be it via lawsuit, constitutional amendment or outright refusal. But voters turned down the amendment that aimed to do that, and Scott's hands are tied with Obama in office.
Here, we are evaluating Scott's promise to fight for repeal of the health care law.
Scott says he is willing to negotiate on the health care law. The results remain to be seen.
We are pushing this promise to Compromise.
The Associated Press (via The Miami Herald), "Florida Gov. Rick Scott wants to talk health care,” Nov. 13, 2012
Florida Department of State, amendment results, accessed Nov. 14, 2012
New York Times, "Health care law has states feeling tense over deadline,” Nov. 15, 2012
New York Times, "U.S. extends a deadline for states on coverage,” Nov. 10, 2012
Interview with Jackie Schutz, Gov. Scott spokeswoman, Nov. 19, 2012
Letterfrom Gov. Rick Scott to Health and Human Services Secretary Kathleen Sebelius, Nov. 16, 2012
Tampa Bay Times, "Striking a cooperative tone, Scott asks to meet with health care officials,”Nov. 16, 2012
Interview with Timothy Jost, law professor at Washington and Lee University, Nov. 19, 2012
News release from Americans for Prosperity, Nov. 19, 2012
Interview with Laura Goodhue, executive director of Florida CHAIN, Nov. 20, 2012
Florida Legislature wants voters to ban individual mandate, but federal law likely would prevail
Rick Scott built a national following in 2009 by opposing President Barack Obama's attempt to reform the country's health care system.
As Florida's governor he vowed to keep up the fight, saying he would support "a state constitutional amendment in Florida that prohibits the federal government from imposing President Obama's individual mandate."
A constitutional amendment proposed by Senate President Mike Haridopolos attempts to accomplish exactly that. SJR 2 -- which was passed by the Senate on March 9, 2011, 29-10 and the House 80-37 on May 4 -- would prohibit the government from requiring people to purchase health insurance. A similar constitutional amendment was passed by the Legislature in 2010 but was tossed off the ballot by the Florida Supreme Court because of misleading ballot language.
Scott opposes the federal individual mandate, which works by imposing fines on people who don't have insurance. If people can't find affordable insurance to buy, as measured by a percentage of income, they would qualify for a hardship exemption. Supporters of the law say the mandate is necessary because the new health care law also prevents insurers from discriminating based on pre-existing conditions. People could simply wait until they get sick to purchase insurance if the mandate was removed.
The amendment proposed in Florida does not need to go to Scott for his signature. Barring court action, it will appear on the November 2012 ballot and must be approved by 60 percent of voters. Several other states are considering or have considered similar constitutional changes.
But there's a big caveat to the proposal. Even if it passes, the constitutional change likely will not stop the federal insurance law from applying to Florida.
The federal supremacy clause of the U.S. Constitution establishes federal law as the "supreme law of the land," and invalidates state laws that interfere with or are contrary to federal law. If the federal health care bill is upheld as constitutional (Florida and other states are suing), it would most likely supersede state law.
"States can no more nullify a federal law like this than they could nullify the civil rights laws by adopting constitutional amendments," Timothy Stoltzfus Jost, a health law expert at Washington & Lee University School of Law, told the New York Times.
For this promise, we're judging Scott based on his efforts to repeal the federal health care law -- and specifically his promise to support an amendment to the state constitution attempting to invalidate the individual mandate. On the day the Senate passed the amendment, Scott called it "a giant step forward in stopping the federal government from imposing costly health care mandates on the state that kill jobs and limit personal choice."
We rate this a Promise Kept.
SJR 2, accessed May 9, 2011
Article VI, U.S. Constitution
Florida Supreme Court, decision to remove Amendment 9 from 2010 ballot
Rick Scott, press statement on Senate passage of SJR 2, March 9, 2011
New York Times, "Health Care Overhaul and Mandatory Coverage Stir States" Rights Claims," Sept. 28, 2009
Scott supports health care repeal efforts
The U.S. House voted to repeal of the 2010 health care law on Jan. 19, 2011, and Gov. Rick Scott was on the sidelines cheering.
Before he became a candidate for governor, during the campaign and after the election, Scott has been a persistent critic of President Barack Obama's federal health care push.
In 2009, Scott spent $5 million of his own money to form Conservatives for Patients' Rights, a group that fought Obama's earlier plan that included the public option.
In 2010, his campaign website boasted that "Rick led the fight to defeat President Obama's government-run public option" and that he "supports a state constitutional amendment in Florida that prohibits the federal government from imposing President Obama's individual mandate." He told Fox News in an interview Oct. 18, 2010, that "the whole thing has to be repealed."
In a meeting in Washington with the Florida congressional delegation on Dec. 1, he said, "I am going to focus on the repealing (of) the health care bill because I think it's the biggest job killer ever in the history of this country."
Just the day before the House vote, in an interview with Fox Business News, Scott said again:
"But Obamacare is a big problem and we will get it repealed. As you know, we're leading the lawsuit against it. Six more states joined our lawsuit today. So it's going to, we're going to -- either we're going to win it through the courts or we're going to win through repealing it."
We sent e-mails to Scott's press office Jan. 18 and 19, and left a phone message on Jan. 18 asking what Scott was doing to fight for repeal, but did not get a reply. We also contacted Florida Attorney General Pam Bondi's spokeswoman, Jennifer Krell Davis, to ask if she was aware of actions Scott had taken toward repeal.
Bondi, also elected in November and a supporter of repealing the law, took over a lawsuit seeking repeal that had been filed by her predecessor, Bill McCollum. Bondi filed a motion Jan. 18 seeking to add six states to the lawsuit that argues the health care law is unconstitutional -- bringing the total number of states to 26, according to a press release from Bondi's office. The suit argues that the law is unconstitutional because it forces people to buy health insurance or pay a penalty.
Davis said in an interview that Bondi's office has been notifying Scott's office "on any changes or updates on the lawsuit."
Three days after Scott"s inauguration, on Jan. 7, he added his signature to a letter addressed to Obama that was also signed by 32 governors (or governors-elect) protesting the health care law, Davis said. The letter doesn't use the word "repeal" but states:
"...we are writing to you regarding the excessive constraints placed on us by healthcare-related federal mandates. One of our biggest concerns continues to be the Maintenance of Effort (MOE) provisions of the American Recovery and Reinvestment Act (ARRA) and the Patient Protection and Affordable Care Act (PPACA), which prevent states from managing their Medicaid programs for their unique Medicaid populations. We ask for your immediate action to remove these MOE requirements so that states are once again granted the flexibility to control their program costs and make necessary budget decisions."
The MOE provision in the health care bill relates to Medicaid and is a directive from the federal government that the states not make major changes to Medicaid during the transition period up to 2014, when the Medicaid rolls will expand, said Gerard Anderson, professor at Johns Hopkins Bloomberg School of Public Health.
"What they are saying is you can change the rules to some extent to take care of new circumstances, but you can't fundamentally drop people you used to cover," Anderson said. "Every state budget is in serious trouble right now, and Medicaid is 25% of most states' [budgets] so they want to get out of the rule."
(PolitiFact Florida wrote in a September ruling that Medicaid expenditures would be around one-third of the state's budget in three years if it keeps growing within the 10-year average.)
We also spoke to Alan Levine, who headed up a transition team for Scott examining health and human services agencies and was a former Secretary of Florida's Agency for Health Care Administration under Republican Gov. Jeb Bush. Levine now works at Naples-based Health Management Associates in Florida, which operates multiple hospitals including several that care for a high number of Medicaid patients.
Levine said that Scott has been encouraging the lawsuit seeking repeal. During a meeting with Levine and others about the transition team plan, Scott said he'd put his money where his mouth was on that lawsuit, according to Levine.
"He made it very clear to me Florida was committed to getting this legislation repealed and if it took resources, they were prepared to provide those although it doesn't appear necessary as we've got so many states involved now," Levine said.
Scott can't vote on repeal -- the only ways he can work toward repeal are supporting the lawsuit, using his bully pulpit and talking about repeal with the state's congressional delegation, Levine said. We agree those are key steps to show him fighting for repeal, and he's met that criteria. But the fight's not over, and he'll need to keep working to keep this promise.
For now, we rate this promise In the Works.
Fox News, "Rick Scott on health care: 'The whole thing needs to be repealed,'" Oct. 18, 2010
The Buzz St. Petersburg Times blog, "Health care fight breaks out in meeting with Rick Scott, Florida delegation," Dec. 1, 2010
St. Petersburg Times, "Six more states join Florida's health care lawsuit," Jan. 19, 2011
Miami Herald, "A Study in Contrasts,"Aug. 8. 2010
PolitiFact, "Pam Bondi says Medicaid will eat up half the state budget in 2015," Sept. 8, 2010
Interview, Johns Hopkins Bloomberg School of Public Health professor Gerard Anderson, Jan. 19, 2011
Interview, Florida Attorney General spokeswoman Jennifer Krell Davis, Jan. 18, 2011
Interview, Alan Levine, chair of the Health and Human Services Transition Team for Gov. Rick Scott, Jan. 18, 2011
Letter from Gov. Rick Scott and several other governors to President Barack Obama, Jan. 7, 2011