STATE OF FLORIDA et al v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES et al

Filing 95

MOTION to File Amicus Brief by Governor Tim Pawlenty. (Internal deadline for referral to judge if response not filed earlier: 11/29/2010). (BADER, HANS)

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION STATE OF FLORIDA, by and through BILL McCOLLUM, ATTORNEY GENERAL OF THE STATE OF FLORIDA, et al., ) ) ) ) Plaintiffs, ) ) v. ) ) ) UNITED STATES DEPARTMENT OF ) HEALTH AND HUMAN SERVICES, et al., ) ) Defendants. ) __________________________________________) Case No.: 3:10-CV-91-RV/EMT MOTION OF GOVERNORS TIM PAWLENTY AND DONALD L. CARCIERI FOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT Pursuant to this Court's order on amicus curiae filings (Doc. 50), Local Civil Rule 7.1, and Rules 29(a) and (b) of the Federal Rules of Appellate Procedure, movants Tim Pawlenty, Governor of Minnesota, and Donald L. Carcieri, Governor Rhode Island, respectfully move the court for leave to participate as amici curiae and file an amici curiae brief in support of Plaintiffs' Motion for Summary Judgment. 1 The basis for this motion is set out in the attached memorandum. Dated: November 11, 2010 Respectfully submitted, /s/ Hans F. Bader____________ HANS F. BADER (D.C. Bar. No. 466545) N.D. Florida Bar Member Counsel of Record SAM KAZMAN* Competitive Enterprise Institute 1899 L Street, NW, 12th Floor Washington, DC 20036 Telephone: (202) 331-2278 Facsimile: (202) 331-0640 E-mail: hbader@cei.org Attorneys for Proposed Amici Curiae Governors Tim Pawlenty and Donald L. Carcieri * Not Admitted in this Court Plaintiffs' counsel has consented to the filing of amicus briefs by governors and states in Plaintiffs' Statement of Position on Motions for Leave to File Briefs As Amici Curiae, Doc. 85 (Nov. 8, 2010). Following discussions pursuant to Local Civil R. 7.1(B), Defendants' counsel take no position on this motion. 1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION STATE OF FLORIDA, by and through BILL McCOLLUM, ATTORNEY GENERAL OF THE STATE OF FLORIDA, et al., ) ) ) ) Plaintiffs, ) ) v. ) ) ) UNITED STATES DEPARTMENT OF ) HEALTH AND HUMAN SERVICES, et al., ) ) Defendants. ) __________________________________________) Case No.: 3:10-CV-91-RV/EMT MEMORANDUM IN SUPPORT OF MOTION OF GOVERNORS TIM PAWLENTY AND DONALD L. CARCIERI FOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT I. Interest of Amici in this Litigation Tim Pawlenty is the Governor of Minnesota. Donald L. Carcieri is the Governor of Rhode Island. As governors, amici have a direct interest in the issue before this Court. The Patient Protection and Affordable Care Act of 2010 ("ACA") fundamentally transforms Medicaid and will effectively co-opt control over the States' budgetary processes and legislative agendas, crowding out spending on other state priorities. Given their role in shaping and overseeing state appropriations and budgets, Governor Pawlenty and Governor Carcieri have a strong and distinct interest in ensuring that basic limits on the federal government's spending power are maintained.2 One of those requirements is that any conditions imposed by federal law must be unambiguous, so that the States may exercise their choice to accept or reject federal funds "knowingly, cognizant of the consequences of their participation."3 Our constitutional system is built on vertical and horizontal checks and balances, chief among them the Federalism embodied in the Ninth and Tenth Amendments. Governors Pawlenty and Carcieri have both an immediate interest in protecting their States from the coercion of the ACA, and a longer-term interest in safeguarding Federalism against overreaching federal power. The Governors also have an obligation to their citizens to safeguard these protections against federal abuse of the spending power. 2 See, e.g., Rhode Island Const., Art. IX, § 15 (Governor "shall prepare and present" the state budget "to the general assembly"); Minn. Const., Art. IV, § 23 (line-item veto). 3 South Dakota v. Dole, 483 U.S. 203, 207 (1987). 1 II. The Proposed Amicus Brief Would Provide This Court With a Distinctive and Useful Perspective An amicus brief by Governors Pawlenty and Carcieri would focus on a critical area that has not been extensively briefed by the parties: the failure of the ACA's amendments to Medicaid to meet one of the traditional restrictions on Congress's spending power, the requirement that statutes be clear and unambiguous in what they require of States.4 In their brief, plaintiffs note that the ACA "violates the principle that conditions on federal funds must be unambiguous, so as to `enable the states to exercise their choice knowingly, cognizant of the consequences of their participation.'"5 Although they explain that the ACA includes "vast potential liabilities that cannot even be projected as of now,"6 their primary focus is in arguing that "the ACA's sweeping changes could not reasonably have been foreseen by the states when they started their Medicaid programs"7 and that they thus could not, at that time, have voluntarily and knowingly assumed the burdens and liabilities imposed on them many years later by the ACA. Amici seek to focus more on the fact that, even at present, the ACA is so intolerably ambiguous and indefinite that it is facially unconstitutional. Moreover, See Citizens Against Casino Gambling in Erie County v. Kempthorne, 471 F. Supp. 2d 295 (W.D.N.Y. 2007) ("amicus brief should normally be allowed" when "the amicus has unique information or perspective" beyond what lawyers for the parties provide). 5 Memorandum In Support of Plaintiffs' Motion for Summary Judgment at 36. 6 Id. at 42. 7 Id.. at 45. 2 4 this vagueness undermines political accountability and thus aggravates the ACA's unduly coercive aspects, in violation of the Tenth Amendment.8 The Supreme Court has repeatedly characterized legislation enacted pursuant to the spending power as "much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions."9 "The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the contract." Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). But even if States could choose to stop participating in the Medicaid program, the ACA is so vague that it does not ­ and cannot ­ allow the States "to exercise their choice knowingly, cognizant of the consequences of their participation." Dole, 483 U.S. at 207 (quoting Pennhurst). The ACA fails to speak "unambiguously," Pennhurst, 451 U.S. at 17, about how a State can opt out of Medicaid's expansion, and what State compliance may mean if it opts in. The Act itself is silent on opting out of the changes to Medicaid. And while it specifies the short-term division between increased State and federal funding, it says nothing of the long-term division of the increased costs. See New York v. United States, 505 U.S. 144, 168 (1992) (Spending Clause legislation's legitimacy is rooted in the fact that "where Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate's preferences; state officials remain accountable to the people."; "Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate."). 9 Pennhurst, 451 U.S. 1, 17 (1981); see also Barnes v. Gorman, 536 U.S. 181, 186 (2002); Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). 3 8 Because the States are not given a clear and informed choice between participation and non-participation, the Act lacks the hallmarks of contractual enforceability. See Matter of T & B General Contracting, 833 F.2d 1455, 1459 (11th Cir. 1987) ("Without a meeting of the minds on all essential terms, no enforceable contract arises."). The Act is indefinite in other key respects as well, so "we cannot fairly say that [a] State could make an informed choice." Pennhurst, 451 U.S. at 25. "There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it."10 The ACA is so mammoth, its provisions are so complex, and its passage was so irregular that the federal attorneys who have spent the past eight months defending it cannot even clearly identify its length. (See Tr. at 8.) Its sheer complexity is partially ­ but only partially ­ captured by the chart provided by minority staff of the Joint Economic Committee, which is attached as Exhibit 1.11 This complexity accentuates its vagueness,12 and makes it all but impossible to comprehend "from the perspective of a state official who is engaged in the process of deciding whether the State should accept [federal] funds and the obligations that Id. at 17-18; see Arlington Cent. Sch. Dist., 548 U.S. at 296; Barnes, 536 U.S. at 186. See Joint Economic Committee, Republican Staff, Your New Health Care System, available at http://jec.senate.gov/republicans/public/?a=Files.Serve&File_id=5ee16e0f6ee6-4643-980e-b4d5f1d7759a (visited Nov. 10, 2010); Nebraska v. E.P.A., 331 F.3d 995, 998 n.3 (D.C. Cir. 2003) (taking judicial notice of agency materials on web); Air Transport Ass'n v. U.S. Dep't of Transp., 613 F.3d 206, 208 (D.C. Cir. 2010) (citing JEC report); Livermore v. Heckler, 743 F.2d 1396, 1403 (9th Cir. 1984) (report by JEC staff). 12 Cheek v. U.S., 498 U.S. 192, 199-200 (1991)("complexity" of statutes can make "it difficult for the average citizen to know and comprehend" their requirements); Hope Clinic v. Ryan, 195 F.3d 857, 866-67 (7th Cir. 1999), vacated, 530 U.S. 1271 (2000) ("complex" provisions can result in "unfair surprise"). 11 10 4 go with those funds." Arlington Cent. Sch. Dist., 548 U.S. at 291. Certainly the Plaintiff States cannot be expected to "exercise their choice knowingly, cognizant of the consequences of their participation." Dole, 483 U.S. at 207. Even if the ACA's text were fully understood, many of its requirements would ultimately be unknowable due to the unprecedented discretion granted to federal officials to implement key provisions. States, for example, will be required to "develop service systems" to provide long-term care that "allocate resources for services in a manner that is responsible to the changing needs and choices of beneficiaries . . . ." ACA § 2404(a). The substance of this vague mandate is delegated to the discretion of the Secretary of Health and Human Services. Id. Similarly, states must provide individuals who are "newly eligible" for Medicaid with "benchmark" coverage. ACA § 2001(a)(2)(A). The substance of this mandate too is expressly delegated to the discretion of the Secretary. ACA §§ 2001(c)(3), 1302(a), (b). The Secretary is also empowered to determine, inter alia, state enrollment programs for Medicaid and CHIP, ACA § 1413(a), obstetric and smoking cessation services that must be provided by the states, ACA §§ 2301, 4107, and myriad data collection, evaluation, and reporting requirements that must be carried out by the states, see, e.g., ACA §§ 2001(d)(1)(C), 2701, 2951. Even if these provisions provide an "intelligible principle" sufficient to support delegation, Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001), they fail to provide any indication to the states of "the consequences of their participation," Dole, 483 U.S. at 207. The indefinite nature of the States' long-run financial 5 commitments to Medicaid make the ACA on its face contractually infirm and hence unconstitutional. It also undermines political accountability and aggravates the coerciveness and unduly burdensome nature of the Act.13 Although the Act indicates that the federal government will initially pay for some Medicaid expansions, the States are advised that they will pay for 10 percent of some unspecified costs in four years, and there is no indication that the States will not pay more in succeeding periods. Indeed, that has been the long-run history of Medicaid ­ States being gradually burdened with increasing costs for a program the scale and design of which are still firmly federally controlled. In the initial, spare introduction of Medicaid in 1965, there was no hint that the States 45 years later would be coerced to spend a substantial proportion of their budgets on Medicaid under the ACA.14 States also face considerable uncertainty as to the Medicaid cost-share ratio for a large new population of single adults without children that the ACA adds to Medicaid.15 Virginia v. Riley, 106 F.3d 559, 571 (4th Cir. 1997) (spending-clause legislation must speak "affirmatively and unambiguously, so that its design is known and the States may marshal their political will in opposition" to expropriations of sovereign rights); cf. Reno v. ACLU, 521 U.S. 844, 864 (1997) ("vagueness" relevant to "overbreadth inquiry"). 14 On average states spend 16.8 percent of their general-fund budgets on Medicaid, with Rhode Island spending 23.5 percent and Minnesota 16.8 percent. See Georgetown Health Policy Institute Center for Children and Families, "Medicaid and State Budgets: Looking at the Facts" (2008), available at http://ccf.georgetown.edu/index/cms-filesystemaction?file=ccf%20publications/about%20medicaid/nasbo%20final%205-1-08.pdf (last visited Nov. 10, 2010). Plaintiff States overall spend similar percentages. Id. Those percentages will rise under the ACA's expansion of Medicaid. 15 It is not clear whether the ratios will be drawn from the ACA itself, or other legislation, like the enhanced Federal Medical Assistance Percentages under the Health Care and Education Reconciliation Act of 2010, Pub L. No. 111-152 6 13 Even if there were some guarantee of a limitation on State obligations under the ACA's expansions of Medicaid, such a promise would be functionally meaningless. As the Defendants admit, any such promise could be changed at the Defendants' whims, without any limitations or any consent by the States. See Defs. Mem. Dis. at 16 (arguing that Congress has "full and complete power" under 42 U.S.C. § 1304 to make any alteration or amendments). For this reason too, as well as for obvious reasons of duress and contractual adhesion, the ACA does not propose a contractually enforceable deal with the States, and violates Pennhurst's well-accepted contractual conceptualizaton of Spending Clause conditions. The Governors' proposed amicus brief would usefully examine these issues and, for this reason, leave to file such a brief should be granted by this Court. Dated: November 11, 2010 Respectfully submitted, /s/ Hans F. Bader___________ HANS F. BADER (D.C. Bar. No. 466545) N.D. Florida Bar Member, Counsel of Record SAM KAZMAN Competitive Enterprise Institute 1899 L Street, NW, 12th Floor Washington, DC 20036 Telephone: (202) 331-2278 Facsimile: (202) 331-0640 E-mail: hbader@cei.org Attorneys for Proposed Amici Curiae Governors Tim Pawlenty and Donald L. Carcieri 7 EXHIBIT 1 §§1501, 10106; HCERA §§1002, 1004 Your New Health Care System §6301 §6301 §8002 §1411 §4002 §5605 §5605 §1414 §1411 §3021 §5605 §3403, 10320 §5605 President §§ 3012, 3024, 3403, 4001, 8002, 10320 Homeland Security Department §1411 §8002 Life Independence Accounts § 8002 CLASS Independence Advisory Council § 8002 Eligibility Assessment System §8002 O th er New G ran t Programs 1002, 1 03 , 13 1, 132 , 0 1 2 1 5 6 1 , 2 9 5 2 , 2 9 5 3 , 3 5 0 1 -6 , 3508, 4101, 4108, 4201, 4202, 4304, 5102 , 5206, 5 2 0 8 , 5 3 0 1 -5 3 0 3 , 5 3 0 5 , 5306, 5309 , 5313, 5 3 1 5 , 5 4 0 5 , 5 5 0 7 -8 , 5604, 6703, 10301 59 10323, 10333, 1 0 4 0 8 -1 0 , 1 0 4 1 3 , 10501, 10503 Social Security Administration § 1411 §3403, 10320 §1513, 10106 §1001, 10101 State Protection & Advocacy Systems § 8002 CLASS Independence Fund § 8002 §8002 §8002 §8002 §8002 §8002 §8002 CLASS Program §8002 Personal Care Attendants Workforce Advisory Panel § 8002 Treasury Department §§1311, 1331, 4002, 8002, 10104 IRS §§1401, 1402, 1411, 1412 1414, 1421, 1501, 9004, 9005, 10105, 10901; HCERA §§1401, 1402 National Academy of Sciences § 5605 §§1513, 10106; HCERA §1003 Key National Indicator System Implementation Institute §5605 Commission on Key Indicators §5605 Special Interest Provisions BEN EF I C I ARI ES : Mut u a l of Omaha (NE); D ru g Cos; NJ Drug Cos; AARP ; Libby Mont a n a n s; P h y sic ia n- Ow n e d Hospit als; Un iv . of CT; Medigap P la n s; L o n gsh o re ma n Healt h Plans; Medicaid: HI, LA, MA, TN, VT; Medicare: CT, FL, MI, MT, ND 1 1 0 2 , 1 2 1 , 2 0 0 6 ,3 1 3 7 , 3 2 1 , 3 3 0 1 , 0 0 6001, 9001, 9010, 901 , 9023, 10201, 4 1 0 3 1 7 , 1 0 3 2 3, 1 0 3 2 4 1 0 5 0 2 , 1 0 6 0 1 , , 1 0 0 1 , 1 0 9 5 ; HCERA 9 0 1101, 11 3, 0 1106, 1203, 1406 19 Congress Members & Personal Staff Mandate: Only Exchange Coverage §1312 §1312 Congress §§1312, 1411, 3311, 5605, 8002 §5605 §3403, 10320 §5605 Office of Personnel Management §3012 §8002 CLASS Independence Fund Board of Trustees §8002 Cures Acceleration Network Review Board § 10409 CLASS Independence Benefit Plan §8002 §8002 Office of Tax Analysis §§1331, 10104 §8002 §1312 §§1334, 10104 §6301 PCORI Board of Governors Office of Multi-State Qualified Health Plans §1334, 10104 §1334, 10104 §6301 PCORI Website § 6301 National Public Education Campaign on Prevention & Health Promotion § 4004 Community Preventive Services Task Force §4003 §4003 §8002 §§3103, 10320 §8002 §1333, 10104 §§1331, 10104 §6703 §6703 §6703 Comptroller General §§1313, 1322 §9002 National Oral Health Public Education Campaign §4102 National Diabetes Report Card Program § 10407 Advisory Board on Elder Abuse, Neglect, & Exploitation §6703 MultiDisciplinary Panels on Improving LongTerm Care §6703 §3311 §10407 National Training Institute for Federal and State Surveyors §6703 O th er New Demonstration & Pilot Programs §1331, 10104 1201, 2 04, 27 5, 270 , 7 0 6 2707, 3023, 3024, 3113, 3140, 4204, 4206, 5304, 5509, 6112, 6114, 10212, 10221, 10315, 10323, 10326, 10504, 10607 MedPAC §2602 §2602 GAO §1331, 10104 §1302 §6703 26 §6301 §6301 PCORI Justice Department §§6301, 10602 §6301 Cures Acceleration Network PCORI Methodology Committee §6301 § 10409 §10409 §10409 NIH §§4305, 6301, 10409 §4004 National Partnership on Prevention & Health Promotion §4004 CDC §§1001, 4003, 4004, 4102, 10407 National Diabetes Mortality Statistics Education Training Program § 10407 Elder Abuse, Neglect, & Exploitation Forensic Centers §6703 Elder Justice Coordinating Council §6703 Optional Basic Health Program §§1331, 10104 §1331, 10104 State Surveyors § 6703 Vital Statistics Agencies §10407 §§1401, 3001, 3403, 6301, 10105, 10320 §§1401, 10105 §6301 §8002 §1341, 10104 §6703 §§1331, 10104 §3001 Interagency Working Group on Health Care Quality §3012 §3012 §3012 §4004 §4004 §4004 §10407 §4102 §4004 §§1311, 10104 §§1311, 10104 §1331, 10104 §1331, 10104 §§9001, 10901; HCERA §1401 §1333, 10104 § 6703 §6703 §6301 §6301 §3013 §§1201, 1301, 1302 Essential Health Benefits Package §§1311, 10104 §6703 §6703 §1313, 10104 States §§1311,1331, 1333,1341, 10104, 10407 §§1341, 10104 §§1341, 10104 NAIC §§1333, 1341, 10104 Health Care Choice Compacts §§1333, 10104 §§1333, 10104 §§9004, 9005; HCERA §1402 §6301 PCORI Trust Fund § 6301 Black Lung Benefits Act §1556 PCORI Expert Advisory Panels §6301 Other New Bureaucracies §1302 §4001 §4001 1412, 3 09, 51 1, 5 0 10104, 10221, 10334, 10413, 10501 A HR Q §3012, 3013, 6031 §1001 §1411 Bronze §1001 §§1001,1201, 1301, 1302 Silver Gold §6301 §10407 Platinum Labor Department §§1001, 1302, 1311, 1511, 1512, 1513, 6605, 10101, 10106 §6703 §3012 Prevention & Public Health Fund §4002 National Prevention, Health Promotion, & Public Health Council § 4001 §4002 §4001 22 §4004 §3012 §§1201, 1301, 1302 Reinsurance Program §§1341, 10104 §§1311, 10104 §§1311, 10104 §1311 Surgeon General §4001 §3011 Prevention Website § 4004 Hours of Service Determination for Calculating Employer Mandate Penalty §§1513, 10106 O th er New Regulatory Programs 1104, 6 02, 61 3 1 0 Interagency Pain Research Coordinating Committee §4305 4 Rules for Insurance Claims Appeals §1001, 10101 Advisory Group on Prevention, Health Promotion, and Integrative and Public Health § 4001 §3011 Public Health Service §§3011, 4002, 4302 §4302 Website "Transparency in Government" § 1552 Secretary Health & Human Services US Preventive Services Task Force §1001 Value-Based Insurance Design & Coverage of Preventive Health Services §1001 §1301 §4305 §4305 Qualified Health Plans §§1301, 1302, 1311, 10104 §1323; HCERA: §1204 §1323; HCERA: §1204 US Territories §1323; HCERA §1204 §3011 §4002 §1001 §1322 §§1341, 10104 §§1301, 10104 §1311 §1001 Privacy Study §1411 §§1322, 10104 §1322 §1411 §1411 Health Insurance CO-OP §§1322, 10104 CO-OP Advisory Board §1322, 10104 §1421, 10105 §§1501, 10106; HCERA §§1002, 1004 §6301 §6301 §§3403, 10320 §1411 §3011 §1411 §4001 §3011 §3011 §4302 §3011 Health Care Quality Website §§3011, 3012 HHS Inspector General §1313, 8002, 10104 Eligibility Determinations § 1411 Medicare Part A Trust Fund §3026, 3403, 6301,9015 Public Health Quality & Efficiency Measures Development Program §§3013, 10304 §3026 National Health Strategy & Priorities Office §3013 § 3011 National Health Disparities Data Collection & Reporting System § 4302 §1321 §1313, 10104 §1561 Health IT Policy Committee §1561 §1342 §1313, 10104 G o v e r nm e nt Health Benefit Exchanges §§1201, 1301,1302, 1311, 1312, 1313, 1321, 1323, 1334, 1411, 1413, 10104; HCERA §1204 Private Purchasing Council § 1322 §8002 Internet Portal §1311 §3013 IPAB §3403, 10320 Risk Corridors §1342 §6605 Data Collection §1311 Small Business Health Options Program §1311 §§9001, 10901; HCERA §1401 §§3403, 10320 §3403 §1334, 10104 §1411 §3026 §2602 IPAB Consumer Advisory Council §§3403, 10320 §3403, 10320 Medicare Part B Trust Fund §3026, 6301 §3013 §3026 §§3021, 10305, 10306 Lo a n Repayment & Forgiveness Programs 5203, 5 04, 52 5, 2 0 5311 Medical Device Excise Tax §§9009, 10904; HCERA §1405 §§9009, 10904; HCERA §1405 §§9009, 10904 §3403 4 CommunityBased Care Transitions Program §3026 CMS Actuary §§1331, 3403, 10104 §3026 Home Health Agencies §3006 Ambulatory Surgical Centers §§3006, 10301 Skilled Nursing Facilities §§3006, 10310 §§3006, 10301 §§3006, 10301 §§3006, 10301 Center for Medicare & Medicaid Innovation §§3021, 10305, 10306 CMS §§3013, 3021, 3026, 3403, 10305, 10306, 10320 §§3022, 10307 Federal Coordinated Health Care Office §2602 Insurance Mandates §§1001, 1101, 1201, 1251, 10101, 10103; HCERA §2301 §1341, 10104 MEWA Health Plans §§1301, 6605 §§1513, 10106; HCERA: §1003 §1342 §2602 §§1001, 10101 §3011 §2602 §2703 §§1311, 1413 17 Small Group Market §1301, 1304, 1342 §§1514, 10106 §§1201, 1301, 1304 §§1201, 1301, 1304 Mandatory Worker AutoEnrollment §1511 Individual Market §1201, 1301, 1304, 1342 Employer Mandate: Provide Health Insurance §§1513, 10106; HCERA §1003 §1513, 10106 §1512 §1511 §1334, 10104 §1342 §§9015, 10906; HCERA §1402 W2 Health Insurance Disclosure § 9002 §§1514, 10106 §1511 §§1201, 1301 §3021 §2602 Medical Device Manufacturers §§9009, 10904; HCERA §1405 Health Industry Mandates, Regulations, Taxes, & Payment Cuts §§1311, 3001-3006, 3311, 9008, 9009, 10327, 10331, 10335, 10904; HCERA §§1404, 1405 Hospitals §§1311, 3001, 10335 §§3001, 10335 §§3001, 10335 §§3001, 10335 Demonstration Program §3001 NonHospital Value-Based Purchasing Program §§3006, 10301 Public Data Disclosure System §3006, 10301 §3006 Medicaid/ CHIP Title II; §§1413, 3011 §2703 Medicaid Health Home Program §2703 §2703 FFS Accountable Care Organizations Program §§3022, 10307 §§3004, 3005 Medicare Part C & Part D Insurers §3311 §§9010, 10905; HCERA §1406 Health Insurance Companies Mandates, Regulations, Required Benefits, & Taxes §§1001, 1201, 1252, 1301, 1334, 1341, 3311, 9001, 9010, 10101, 10104, 10901, 10905; HCERA §§1401, 1406 §§1402, 1412; HCERA §1001 Large Group Market §§1201, 1301, 1511 §1511 Large Employers §§1304, 1511, 1512, 1513, 1514, 10106 §9002 Employers §§9001, 10901; HCERA §1401 §§9001, 10901; HCERA §1401 Self-Insured Health Plans § 1301 §1311 Annual Fee §9008; HCERA §1404 Rationing Potential Involvement in Health Insurance Market Other Expansions Represents Bundles of Additional Entities §9008; HCERA §1404 Pharmaceutical Companies §9008; HCERA §1404 Medicaid Expansion: +16 million §§2001-2004 CBO Cost Estimate, 3/20/10 State Medicaid Agencies §§2602, 2701, 2703, 3011 §§1001, 10101 "Cadillac Plans" Tax §§9001, 10901; HCERA §1401 Mandates, Regulations, & Taxes §§1511, 1512, 1513, 9001, 9002, 10106, 10901; HCERA §§1003, 1401 §2703 §1512 Annual Fee §2701 §2701 §2701 §§9010, 10905; HCERA §1406 Medicare Administrative Contractors §3311 §9008; HCERA §1404 §§1311 Hospital Value-Based Purchasing Program §§3001, 10335 Subsidies: Out-of-Pocket Expenses §§1402, 1412; HCERA §1001 Health Insurance Policy Holder §§1001, 10101 Individual Mandate: Buy Health Insurance §1411 Small Employers §§1304, 1311, 1421, 1512, 10105 §§2001-2004 §1511 §§1001, 10101 §§1401, 1412, 10105; HCERA §§1001, 1004 §1421, 10105 §3022, 10307 Medicare Cuts: $528.9bn (includes MA cuts) Title III; CBO Cost Estimate, 3/20/10 §3007 Hospice Programs §3004 PPS-Exempt Cancer Hospitals §3005 Hospital Compare Website §3001 Medicare Title III, §2602 Title III §§3201, 10318; HCERA §1102 StateSpecific Adult Health Quality Measures §2701 Health Savings Accounts §§9003, 9004 §§1501, 10106; HCERA §§1002, 1004 Large Business Employees §1511, 1512 Small Business Health Insurance Tax Credit §§1421, 10105 §1512 §2602 §2701 §2701 §3001 §1501 §2701 Physicians §§1311, 3002, 3003, 10327, 10331 §§3002, 10327, 10331 §§3002, 10327, 10331 §§3007 §3007 Inpatient Rehabilitation Facilities §3004 Medicare Advantage Cuts: $205.9bn §3311 Long-Term Care Hospitals § 3004 Physician Quality Reporting System §§3002, 10327, 10331 Physician Value-Based Payment Modifier §§3007 Hospital Quality Reporting Program §3004, 3005 Medicare Prescription Drug and MA-PD Complaint System §3311 §§3201, 10318; HCERA §1102; CBO Cost Estimate, 3/20/10 Subsidy: Medicare Part D Drug Program "Donut Hole" §3301; HCERA §1101 Medicaid Quality Measurement Program §2701 "Excessive Profits" Premium Tax Credit Subsidies §§1401, 1412, 10105; HCERA §§1001, 1004 §§1001, 10101 §9003 Misuse of HSA Funds § 9004 §9004 3.8% Investment Income Tax HCERA §1402 Individuals HCERA §1402 Small Business Employees §1512 §§9017, 10907 §2701 Mandates, Regulations, & Taxes §§1311, 1411, 1501, 9003-9005, 9013, 9015, 9017, 10106, 10902, 10906, 10907; HCERA §§1002, 1004, 1402, 1403 10% Tax On Indoor Tanning Services: §§9017, 10907 §9013 §3005 §3005 §3005 §3301; HCERA §1101 §3311 §3311 HSA Use Restriction § 9003 Medicare Payroll Tax Increase: 0.9% §§9015, 10906; HCERA §1402 §§9015, 10906; HCERA §1402 §3004 §3004 §3 4 4 0 §300§3004 §3§3004 004 004§3 §3004 Medicare Beneficiaries §3311 Flexible Spending Arrangement §9005, 10902; HCERA §1403 §§9010, 10905; HCERA §1406 §§9005, 10902; HCERA §1403 FSA Contribution Limit: $2,500 §§9005, 10902; HCERA§1403 Patients §3311 New Government Mandates Taxes & Monetary Fees/ Penalties/Cuts Trust Fund (Rationing Potential) Other New Trust Funds/ Monetary Benefits Expanded Government Government with Expanded Authority/ Responsibility Government Financial Entity with New Inflows/ Outflows State/Territory with Expanded Authority/ Responsibility Private Private Entity with New Mandates/ Regulations/ Responsibilities Unchanged Private Entity Special Interest Provisions New Relationships Regulations/ Requirements/Mandates Reporting Requirements Oversight Money Flows Consultation/Advisory/ Info Sharing Structural Connections (Includes Existing) §§1401, 1412, 10105; HCERA §§1001, 1004 Only Medical Expenses Above 10% of Income (AGI) are Tax Deductible § 9013 AGI: Adjusted Gross Income AHRQ: Agency for Healthcare Research and Quality CDC: Centers for Disease Control & Prevention CHIP: Children's Health Insurance Program CLASS: Community Living Assistance Services & Supports CMS: Centers for Medicare & Medicaid Services CO-OP: Consumer Operated & Oriented Program FFS: Fee-for-Service FSA: Flexible Spending Arrangement GAO: Government Accountability Office HCERA: Health Care & Education Reconciliation Act HHS: Health & Human Services Department HSA: Health Savings Account IPAB: Independent Payment Advisory Board IRS: Internal Revenue Service MA-PD: Medicare Advantage Prescription Drug MedPAC: Medicare Payment Advisory Commission MERD: Medical Early Risk Detection EALORS: Executive Auxiliary Linked Office Regional Systems MEWA: Multiple Employer Welfare Arrangement NAIC: National Association of Insurance Commissioners NIH: National Institutes of Health PCORI: Patient-Centered Outcomes Research Institute PPS: Prospective Payment System §§1402, 1412; HCERA §1001 Prepared by: Joint Economic Committee, Republican Staff Congressman Kevin Brady, Senior House Republican Senator Sam Brownback, Ranking Member Patient Protection & Affordable Care Act, P.L. 111-148; Health Care & Education Reconciliation Act, P.L. 111-152 CERTIFICATE OF SERVICE The undersigned counsel for Movants certifies that on November 11, 2010, a true and correct copy of the foregoing Motion and Memorandum was filed electronically with this Court through the CM/ECF filing system. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court's CM/ECF system. The following counsel for the parties, among others, will receive notice of this filing through the Court's CM/ECF system: David Boris Rivkin, Jr. Lee Alfred Casey Blaine H. Winship Katherine Jean Spohn William James Cobb, III Carlos Ramos-Mrosovsky Brian G. Kennedy Eric B. Beckenhauer drivkin@bakerlaw.com lcasey@bakerlaw.com blaine.winship@myfloridalegal.com katie.spohn@nebraska.gov bill.cobb@oag.state.tx.us cramosmrosovsky@bakerlaw.com brian.kennedy@usdoj.gov eric.beckenhauer@usdoj.gov /s/ Hans F. Bader D.C. Bar No. 466545 N.D. Florida Bar Member 1899 L Street, NW, 12th Floor Washington, D.C. 20036 Phone: 202-331-2278 Fax: 202-331-0640 Email: hbader@cei.org Counsel for Proposed Amici Curiae Governors Tim Pawlenty and Donald L. Carcieri