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

Filing 134

AMICUS CURIAE BRIEF by AMERICAN ACADEMY OF PEDIATRICS In Support of Defendants' Motion for Summary Judgment. (SOMERS, SARAH)

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

Doc. 134

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION Case No. 3:10-cv-91-RV/EMT 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.

AMICI CURIAE MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS TO COUNT FOUR OF THE AMENDED COMPLAINT FROM AMERICAN ACADEMY OF PEDIATRICS, AARP, AMERICAN PUBLIC HEALTH ASSOCIATION, CHILDREN'S DENTAL HEALTH PROJECT, FAMILIES USA, FLORIDA ADVOCACY CENTER FOR PEOPLE WITH DISABILITIES, FLORIDA PEDIATRIC SOCIETY/FLORIDA CHAPTER OF THE AMERICAN ACADEMY OF PEDIATRICS, FLORIDA ALLIANCE FOR RETIRED AMERICANS, FLORIDA COMMUNITY HEALTH ACTION INFORMATION NETWORK, GRAY PANTHERS, HUMAN SERVICES COALITION OF DADE COUNTY, JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW, NAMI FLORIDA, NATIONAL ALLIANCE ON MENTAL ILLNESS, NATIONAL ASSOCIATION OF COMMUNITY HEALTH CENTERS, NATIONAL COMMITTEE TO PRESERVE SOCIAL SECURITY AND MEDICARE, NATIONAL DISABILITY RIGHTS NETWORK, NATIONAL HEALTH LAW PROGRAM, NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES, SEIU FLORIDA HEALTHCARE, SARGENT SHRIVER NATIONAL CENTER ON POVERTY LAW, AND VOICES FOR AMERICA'S CHILDREN (THE AMICI)

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TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................i TABLE OF AUTHORITIES .................................................................................... ii CORPORATE DISCLOSURE STATEMENT ......................................................... 1 INTRODUCTION ..................................................................................................... 1 ARGUMENT ............................................................................................................. 2
THE AFFORDABLE CARE ACT DOES NOT RADICALLY CHANGE MEDICAID'S STRUCTURE OR PURPOSE........................................................... 3

A. B.

Medicaid's Core Framework. ...................................................................... 3 Medicaid's Consistent Structure Over Time ................................................... 5

CONCLUSION ........................................................................................................ 14

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TABLE OF AUTHORITIES CASES Doe v. Chiles, 136 F.3d 309 (11th Cir. 1998) Florida ex rel. McCollum v. U.S. Dep't of Health & Human Services, 716 F. Supp. 2d 1120 (N.D. Fla. 2010) Harris v. McRae, 448 U.S. 297 (1980) Okla. v. Civil Serv. Comm'n, 330 U.S. 127 (1947) Okla. Ch. of Am. Acad. of Ped. v. Fogarty, 472 F.3d 1208, 1213-14 (10th Cir. 2007) Sabri v. United States, 541 U.S. 600 (2004) Schweicker v. Gray Panthers, 453 U.S. 34 (1981) South Dakota v. Dole, 438 U.S. 203 (1987) Steward Mach. Co. v. Davis, 301 U.S. 548 (1937) Wilder v. Va. Hosp. Ass'n, 496 U.S. 498 (1990) STATUTES AND LAWS 42 U.S.C. § 1315 42 U.S.C. §§ 1396-1396w 42 U.S.C. § 1396a(a)(3) 42 U.S.C. § 1396a(a)(8) 42 U.S.C. § 1396a(a)(10) 42 U.S.C. § 1396a(a)(55) 42 U.S.C. § 1396a(a)(74) 42 U.S.C. § 1396a(e) 42 U.S.C. § 1396a(f) 42 U.S.C. § 1396a(l) 11 2 6 6 5-6, 7, 9, 11 10 13 11 7 9 3, 4 1 2 2 3 2 7 2 2 4

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42 U.S.C. § 1396a(gg) 42 U.S.C. § 1396b(a) 42 U.S.C. § 1396d(a) 42 U.S.C. § 1396d(n) 42 U.S.C. § 1396d(p) 42 U.S.C. § 1396n(c) 42 U.S.C. § 1396r-1 42 C.F.R. § 430.48 American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115 (2009) Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251 (1997) Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, 100 Stat. 82 (1985) Deficit Reduction Act of 1984, Pub. L. No. 96-369, 98 Stat. 494 (1984) Medicare Catastrophic Coverage Act of 1988, Pub. L. No. 100-360, 102 Stat.683 (1988) Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, 95 Stat. 357 (1981)

13 4, 6 3, 9 9 11 8 10 4 13 11 9 9 9, 11 8

Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99-509, 100 Stat. 1874 (1986) 9, 11, 13 Omnibus Budget Reconciliation Act of 1989, Pub. L. No. 101-239, 103 Stat. 2106 (1989) 7, 9

Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, 104 Stat. 1388 (1990) 10, 11 Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, 107 Stat. 312 (1993) 7

Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, as amended by Pub. L. No. 111-152, 124 Stat. 119 (2010) 3, 10, 12-13 Social Security Act of 1965, Pub. L. No. 89-97, 79 Stat. 286 (1965) Social Security Act Amendments of 1967, Pub. L. No. 90-248, 81 Stat. 821 (1967) Social Security Act Amendments of 1972, Pub. L. No. 92-603, 86 Stat. 1329 (1972) Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. No. 97-248, 96 Stat. 324 (1982)
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5 6, 13 7 11

OTHER AUTHORITIES 156 Cong. Rec. H1854-02, 2010 WL 1006359 (Mar. 21, 2010) H.R. Rep No. 111-299, 1st Sess., 649, 2009 WL 3321420 (Oct. 14, 2009) S. Rep. 93-553, 93d Cong., 1st Sess. 55 (1973) Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 DUKE L.J. 345 (Dec. 2008) Lynn A. Baker, The Spending Power and the Federalist Revival, 4 CHAP. L. REV. 195 (2001) Robert T. Bull, The Virtue of Vagueness, A Defense of South Dakota v. Dole, 56 DUKE L. J. 279, 293-300 (Oct. 2006) Brian Galle, Federal Grants, State Decisions, 88 B. U. L. REV. 875, 919 (Oct. 2008) Kaiser Family Foundation, Medicaid Financial Eligiblity: Primary Pathways for the Elderly and People with Disabiliteis (Feb. 2010) Kaiser Family Foundation, Children's Health Fact Sheets (Dec. 2009) Keavney Klein & Sonya Schwartz, Nat'l Acad. for State Heath Policy, State Efforts to Cover Low-Income Adults Wthout Children (Sept. 2008) Celestine R. McConville, Federal Funding Conditions: Bursting Through the Dole Loopholes, 4 CHAP. L. REV. 163 (Spr. 2001) 3 3 7 2 1 2 2 8 10 12 2

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CORPORATE DISCLOSURE STATEMENT Amici organizations are not publicly held companies. None have parent corporations, except for Florida Alliance for Retired Americans (FLARA) and SEIU HealthCare Local which are affiliates of non profit corporations.1 INTRODUCTION Count Four of the Amended Complaint challenges provisions of the Patient Protection and Affordable Care Act (ACA) that expand Medicaid to childless, non-disabled adults whose incomes are below 133% of the federal poverty level. Am. Compl. at ¶¶ 55-57. According to the Plaintiffs, these provisions convert Medicaid into a "federally-imposed universal healthcare regime" that they have no choice but to accept.2 The Plaintiffs' "coercion and commandeering" claim is not that Medicaid itself is unconstitutional, but that the ACA works such a transformation that the States must spend money and provide services in ways that are "radically changed" from what was required by the Medicaid Act on the day before the ACA was enacted. Memorandum in Support of Plaintiffs' Motion for Summary Judgment (Plfs. Mem.) at 25. 3

The Amici's statement of interest is incorporated herein by reference, see Mot. of the Amici (Nov. 10, 2010) (DE 87); Order (Nov. 12, 2010) (DE 100) (granting leave to file). FLARA is an affiliate of the Alliance for Retired Americans and SEIU Healthcare Florida is SEIU International. 2 The Court has noted the "almost uniformly hostile" reception this coercion theory has received in the courts of appeals. Florida ex rel. McCollum v. U.S. Dep't of Health & Human Services, 716 F. Supp. 2d 1120, 1158 (N.D. Fla. 2010) (collecting cases). Half of the attorney general Plaintiffs come from states whose Federal appellate courts have rejected application of the theory (Alaska, Arizona, Colorado, Idaho, Nebraska, Nevada, North Dakota, South Dakota, Utah, and Washington). Also, nine of the Plaintiffs did not submit evidence of the specific impacts of the Medicaid provisions (Alabama, Alaska, Colorado, Idaho, Michigan, Mississippi, Pennsylvania, South Carolina, and Washington). The Plaintiffs from Alaska, Colorado, Idaho, and Washington are, thus, asking this Court to grant them relief on a claim that has been rejected by their Federal courts of appeals and that they have not supported with factual attestations. 3 The Court, id. at 1160 n.17, cited Professor Baker's article, The Spending Power and the Federalist Revival, 4 CHAP. L. REV. 195 (2001), which argues that conditional Federal spending programs operate to allow politically powerful states to oppress less powerful states.
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As discussed below, the coercion and commandeering claim finds no support in the history and structure of the Medicaid Act, as originally enacted or as Congress and the States have changed it over time. ARGUMENT Medicaid is part of the Social Security Act, enacted pursuant to Congress's Spending Clause authority. See 42 U.S.C. §§ 1396-1396w-1. From the time it was enacted, Medicaid has conditioned federal funding on States' agreements to comply with a series of mandates. The Supreme Court has consistently recognized Congress's broad authority to enact such legislation pursuant to the Spending Clause. In South Dakota v. Dole, the Court held that cooperativefederalism programs such as Medicaid, where States accept Federal money together with Federal conditions for how that money may be used, are constitutional. 483 U.S. 203 (1987). See also, e.g., Okla. v. Civil Serv. Comm'n, 330 U.S. 127 (1947) (affirming Congress's broad power to set conditions for the receipt of Federal funds); Steward Mach. Co. v. Davis, 301 U.S. 548 (1937) (affirming Congress's authority under taxing and spending clauses to enact Social Security Act); Sabri v. United States, 541 U.S. 600 (2004) (unanimously reaffirming broad scope of Congress's spending power); cf. Harris v. McRae, 448 U.S. 297 (1980) (holding Congress's ability to refuse

Id. at 219-20. That is not the argument being made by the Plaintiffs here. Indeed, the Plaintiffs include officials from Alaska, Idaho, North Dakota, and South Dakota, which are among the states receiving the most per capita benefit from transfers of federal dollars. Id. at 211-12. Equally important, while arguing for more rigorous judicial activism over Spending Clause complaints, Professor Baker's article does not explain how the coercion theory should be applied in cases such as this one. For discussion of problems with refinements previously suggested by Professor Baker, see, e.g., Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 DUKE L.J. 345,372-78 (Dec. 2008); Brian Galle, Federal Grants, State Decisions, 88 B. U. L. REV. 875, 919 (Oct. 2008) ("The difficulty is that Baker sees coercion in virtually every federal-state exchange."); Robert T. Bull, The Virtue of Vagueness, A Defense of South Dakota v. Dole, 56 DUKE L. J. 279, 293-300 (Oct. 2006). See generally Celestine R. McConville, Federal Funding Conditions: Bursting Through the Dole Loopholes, 4 CHAP. L. REV. 163, 177-83 (Spr. 2001) (discussing the case law and arguing that the Fourth Circuit bucks the trend using faulty analysis).
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to provide Medicaid funds necessarily involves the ability to subsidize only certain procedures and to exclude even medically necessary abortions from those covered procedures). I. The Affordable Care Act Does Not Radically Change Medicaid's Structure or Purpose. A. Medicaid's Core Framework Medicaid was added to the Social Security Act in 1965 as Title XIX. Congress invited States to accept significant Federal funding--half or more of State expenditures--in return for providing coverage for specific groups of people (additional groups at State option) for a specific set of services (additional services at State option). Since 1965, Congress has amended Medicaid on numerous occasions. Whenever these changes have occurred, including those in the ACA, they have not altered the program's essential framework. First, Medicaid is a means-tested program that provides health insurance coverage to people who generally cannot afford to purchase private health insurance. The Medicaid Act does not establish a "government run" health system but rather is an insurance coverage program that enables enrolled individuals to gain access to private health care providers, including doctors, community health clinics, pharmacies, home health aides, hospitals, and nursing homes. Medicaid's purpose is achieved through a statutory structure that entitles eligible individuals to coverage for items and services collectively known as "medical assistance."4

The ACA clarifies the meaning of "medical assistance." See ACA § 2304 (amending 42 U.S.C. § 1396d(a)). The clarification responds to some recent court decisions that limited medical assistance simply to payment of a provider claim when and if it was submitted. E.g. Okla. Ch. of Am. Acad. of Ped. v. Fogarty, 472 F.3d 1208, 1213-14 (10th Cir. 2007) (refusing to follow Doe v. Chiles, 136 F.3d 709 (11th Cir. 1998)). As Congress made abundantly clear, the clarification was made to "correct any misunderstanding" and "to conform th[e] definition to the longstanding administrative use and understanding of the term" prior to these recent cases. See H.R. Rep. No. 111-299, 1st Sess., at 649-50, 2009 WL 3321420 (Leg. Hist.) (Oct. 14, 2009); see also 156 Cong. Rec. H1854, 1856, 2010 WL 1006359 (Mar. 21, 2010) (statement of Rep. Waxman) (explaining on the House floor the committee report's rationale for the clarification);
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Second, the Medicaid Act creates an entitlement for States that ensures that all eligible expenditures qualify for federal funding at the appropriate federal matching rate. This StateFederal partnership of "cooperative federalism" represents an extraordinary commitment on the part of the Federal government, which picks up at least half of the States' costs of paying for health care services and administering the program. Federal funding for expenditures typically can range from 50-83%, with higher funding for States with lower per capita incomes--a feature designed to ensure that Federal funds flow to States with the greatest need. See 42 U.S.C. § 1396b(a). Federal funds cover at least 50% of the costs of State program administration, id. at § 1396b(a)(1), and, for some activities and services, 100% of the costs, id. at § 1396b(a) (providing full Federal funding for electronic health records development, immigrant status verification systems, and Medicaid services provided through Indian Health Service facilities or contractors). Third, State participation in the Medicaid program is voluntary. States choosing to participate and receive Federal funding must submit a Medicaid plan to the U.S. Secretary of Health and Human Services. Once approved, a State must operate its program consistent with the Medicaid Act and regulations. See, e.g., Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 502 (1990). And while Federal payments have always come with strings attached, an unwilling State can opt out by withdrawing its Medicaid plan. See, e.g., Doe v. Chiles, 136 F.3d 709, 722 (11th Cir. 1998) (noting Medicaid is Spending Clause program where Florida "always retains th[e]

Id. at H1891, 1967, 2010 WL 1027566 (Mar. 21, 2010). Thus, the clarification does not change the responsibilities States assume when they accept Federal funds, nor does it require States to directly provide medical services by establishing state-owned or operated facilities or employing providers. The clarification does, however, confirm that the Eleventh Circuit properly applied the term when it decided Doe v. Chiles in 1998.
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option" to withdraw); see 42 U.S.C. § 1396b(a) (limiting Federal funding to States with an approved plan); 42 C.F.R. § 430.48 (regarding repayment if State terminates participation).5 Fourth, while different and changing obligations have been enacted over time, the Medicaid Act has always set a minimum floor of requirements while allowing States a great deal of flexibility in how to attain the floor and/or exceed it, including with respect to the amount and mix of services they will cover, provider payments, and procedures regarding eligibility and enrollment. Indeed, a hallmark of the Medicaid program is the considerable discretion that States are given to tailor their Medicaid programs and, thus, there is considerable variation of Medicaid programs from State to State. Finally, as with other Spending Clause enactments, Congress and the States have used Medicaid not simply as a funding mechanism to help poor, elderly, and medically indigent Americans but also to address broader national concerns, such as reducing infant mortality, improving childhood immunization rates, and encouraging community-based alternatives to institutional long-term care. B. Medicaid's Consistent Structure Over Time The intrinsic framework described above has held true for the 45-year history of the Medicaid program, as illustrated by the following legislative reforms including the ACA: 1965: The Medicaid Act was enacted to offer States the option to participate in a Federal-State partnership designed to improve the health access and status of poor and disabled Americans. See Social Security Act Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286, § 121 (adding Title XIX, 42 U.S.C. § 1396 et seq.). Participating states were required to make medical assistance available to low-income residents who were receiving public cash

States know they can terminate participation. For example, the State of Arizona initiated the process of terminating participation in the Children's Health Insurance Program, Title XXI of the Social Security Act. See Ex. 33 to Plfs.' Mem. (citing Mar. 18, 2010 letter from Arizona to Centers for Medicare & Medicaid Services, notifying CMS of termination).
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assistance--Aid to Families with Dependent Children (AFDC), Old Age Assistance, Aid to the Blind, and Aid to the Permanently and Totally Disabled. See 42 U.S.C. § 1396a(a)(10)(A). From this eligibility floor, States were given options to make medical assistance available to families and people with disabilities whose incomes were too high to qualify for public cash assistance. See Id. at § 1396a(a)(10)(B), (C). Likewise, participating States were required to cover a minimum scope of benefits, primarily hospital and nursing facility services, laboratory and X-ray services, and physicians' services. Id. at §§ 1396a(a)(13), 1396d(a)(1)-(5). States could also receive Federal funding for a number of other, mostly non-acute, often community-based services, including outpatient prescription drugs, preventive screening services for children, and dental and home health services. Id. at §§ 1396d(a)(6)-(15). In addition to the eligibility and service mandates and options, the new law included protections for consumers and participating providers. For example, participating States needed to assure the Federal government that medical assistance would be furnished with "reasonable promptness to all eligible individuals," id. at § 1396a(a)(8), and that enrollees would receive due process when claims were denied, id. at § 1396a(a)(3). Thus, the original Medicaid Act was framed to include minimum Federal requirements governing who was to be covered and what sorts of services they would receive, along with a variety of State options to exceed the Federally-mandated floor. In addition, the law required some protections in the manner by which people qualified for and received services and how participating providers were to be treated. These provisions remain an integral part of the Medicaid program today and have not been changed by the ACA. 1967: Congress amended the Act to require States to cover previously optional early and periodic screening, diagnostic and treatment (EPSDT) services for Medicaid-eligible children

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under age 21. See Social Security Act Amendments of 1967, Pub. L. No. 90-248, 81 Stat. 821, §§ 224, 302 (amending then effective version of 42 U.S.C. § 1396a(a)(13)). Through EPSDT, the Federal and State partnership evolved to cover well-child examinations; vision, hearing and dental care; vaccines, and services needed to address health problems. Thus, the service floor was lifted, and all States now cover EPSDT.6 1972: Although Medicaid began by confining its minimum eligibility requirements to standards set by state cash welfare programs--which did and still do vary dramatically from State to State--it soon changed to provide some nationwide eligibility standards for elderly people and people with disabilities. Seven years after Medicaid's enactment, the Social Security Act Amendments of 1972 established Supplemental Security Income (SSI), a single Federal cash assistance program for low-income elderly people and people with disabilities that replaced previously State-operated cooperative-federalism programs. See Social Security Act Amendments of 1972, Pub. L. No. 92-603, 86 Stat. 1329, §§ 301 (replacing Title XVI of the Social Security Act) and § 209(b) (described below); see also Pub. L. No. 93-233, § 13 (conforming amendment to 42 U.S.C. § 1396a(a)(10)(A)). Congress encouraged States to extend Medicaid to everyone who was eligible for the newly-enacted SSI program. However, concerned that some States might exercise their right to terminate participation in the Medicaid program rather than implement the mandatory expansion, Congress gave States the option to provide Medicaid to only those people who would have been eligible for Medicaid under a State's prior State Medicaid plan. See 42 U.S.C. § 1396a(f) (also called 209(b)). See S. Rep. 93

Congress has maintained focus on improving the health of low-income children. For example, EPSDT coverage has been clarified, see Omnibus Budget Reconciliation Act of 1989, Pub. L. No. 101-239, 103 Stat. 2106, § 6403 (adding 42 U.S.C. § 1396d(r) and amending § 1396a(a)(43)), and strengthened to include a federally funded pediatric vaccines program, see Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, 107 Stat. 312, § 13631 (adding 42 U.S.C. § 1396s).
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553, 93rd Cong., 1st Sess. 55-57 (1973); see also Schweiker v. Gray Panthers, 453 U.S. 34, 3839 & nn. 3-6 (1981). Also, all States maintained flexibility to cover people with disabilities whose incomes exceeded the SSI limits.7 Notably, the ACA's Medicaid coverage for childless adults uses a national financial eligibility standard, just as Congress did in 1972 for elders and people with disabilities. 1981: In 1981, the Federal government revised coverage of long term care services in Medicaid, which were focused on institutional care, to encompass home and community-based care. See Omnibus Budget and Reconciliation Act (OBRA) of 1981, Pub. L. No. 97-35, § 2176, 95 Stat. 357, § 2176 (codified at 42 U.S.C. § 1396n(c)). States that elected to move their programs in the direction of community integration were required to adhere to coverage and service conditions, which, if satisfied, would result in expanded Federal funding to cover both medical and non-medical services and supports. Enrollees who needed a nursing home level of care could receive these services in the community if the State provided necessary assurances to the Federal government that the coverage would be cost-effective and that people's health and welfare would be protected. Id. Yet again, the Medicaid Act was amended to enhance State flexibility while maintaining underlying Federal standards aimed at improving the welfare of elderly people and people with disabilities. Indeed, State community-based care innovation has flourished, but under comprehensive Federal standards. 1984-90: Between 1984 and 1990, Congress enacted legislation that in fundamental respects parallels the ACA's extension of coverage to poor adults. Over this time period and

All 20 of the Plaintiffs' States now cover, as a matter of state option, at least some elderly people or people with disabilities with incomes up to or above 300% of the SSI level-- which is about 224% of Federal poverty level. See Kaiser Family Found., Medicaid Financial Eligibility: Primary Pathways for the Elderly and People with Disabilities, Tbl. 3 (Feb. 2010), at http://kff.org/medicaid/upload/8048.pdf.
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through a series of incremental reforms, Congress established a national floor of coverage for children and pregnant women. This floor is accompanied by State options to reach further, but a solid floor remains, nonetheless. Certain reforms that began as options ultimately became mandatory, as follows: Prior to 1984, as noted above, participating States were required to extend Medicaid to children and pregnant women receiving cash assistance through the AFDC program. States were given the option to extend coverage to children, including unborn children, with AFDC-level income but living in families that did not qualify for cash assistance, typically because of the presence of two parents in the household. In 1984, this optional coverage was made mandatory for children under age five and first-time pregnant women who met the financial eligibility standards for the State's AFDC program. See Deficit Reduction Act (DRA) of 1984, Pub. L. No. 96-369, 98 Stat. 494, § 2361 (adding 42 U.S.C. §§ 1396d(n) and 1396a(a)(10)(A)(i)(III)). In 1985, States were required to cover all pregnant women who met the financial eligibility criteria for AFDC. See Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, 100 Stat. 82, § 9501 (amending 42 U.S.C. § 1396d(n)). A year later, the Medicaid Act was amended to give States the option to cover pregnant women and young children with low family incomes that nevertheless exceeded AFDC payment levels. See OBRA of 1986, Pub. L. No. 99509, 100 Stat. 1874, § 9401 (adding 42 U.S.C. §§ 1396a(l) and 1396a(a)(10)(A)(ii)(IX)). In 1988, these options began to be transformed into requirements, through phased in coverage tied to the Federal poverty level, rather than the AFDC program. Coverage ultimately reached all children, birth to age 5, and pregnant women with family incomes under 133% of the federal poverty level and, in the case of children aged 5-18, with family incomes under 100% of the poverty level. See Medicare Catastrophic Coverage Act of 1988 (MCCA), Pub. L. 100-360,

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102 Stat. 683, § 302 (adding 42 U.S.C. §§ 1396a(a)(10)(A)(i)(IV) and 1396a(l)(2)(A)(iii)); OBRA of 1989, Pub. L. 101-239, 103 Stat. 2106, § 6401 (amending 42 U.S.C. §§ 1396a(a)(10)(A)(i), 1396a(a)(A)(10)(A)(ii), and 1396a(l)); OBRA of 1990, Pub. L. 101-508, 104 Stat. 1388, § 4601 (same). During this time, Congress allowed States, as it had during the previous 25 years, to extend benefits to needy children and pregnant women with incomes above the minimum coverage floors. Id.8 Additionally, to facilitate enrollment of these populations, the 1990 Congress required States to assure their Medicaid applications would be accepted not only at welfare offices but also at health care sites frequented by children and pregnant women, such as community health centers and hospitals. 42 U.S.C. § 1396a(a)(55) (added by OBRA of 1990, § 4602)). Beyond this requirement, the Act permitted States to allow Medicaid-participating health care providers to make "presumptive eligibility" determinations and obtain Federal funding for services at the earliest possible time (and without penalty if the child or woman later found not to be Medicaid eligible). See 42 U.S.C. §§ 1396r-1 (optional presumptive eligibility for pregnant women, added in 1986); 1396r-1a (optional presumptive eligibility for children, added in 1997).9 At the same time, Congress and the States addressed eligibility floors for low-income elderly and disabled people, once again beginning with options that later were transformed into basic requirements, with flexibility for States regarding how these requirements would be achieved and to offer more than was minimally required. For example, lower-income elderly

Seventeen of the Plaintiffs' States­all but Alabama, North Dakota, and Utah­provide, as a matter of state option, Medicaid coverage for at least some groups of children or pregnant women that exceeds the 133% and 100% Federal poverty-level minimums. See Kaiser Family Found., Children's Health Fact Sheets (Dec. 2009 survey), at http://pdf.kff.org/chfs/SDUS.pdf. 9 Compare 42 U.S.C. § 1396r-1(k) (optional presumptive eligibility for childless adults, added by ACA, § 2001(a)(4), eff. 2014)).
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people and people with disabilities who were eligible for Medicare typically needed help to meet that program's costs, including monthly Medicare Part B premiums. In 1986, Congress created a new Medicaid option through which States could receive federal payments toward coverage of Medicare cost-sharing for people whose incomes were at or below a State-specified threshold at or below the poverty line. See OBRA of 1986, § 9403 (adding 42 U.S.C. §§ 1396d(p) and 1396a(a)(10)(E)). Two years later, Congress converted the option into a requirement for States to phase in coverage of at least Medicare premiums and cost-sharing for all persons with incomes below 100% of poverty. See MCCA, § 301 (amending 42 U.S.C. §§ 1396a(a)(10)(E) and 1396d(p)). Then, two years later, Congress required States to phase in Medicare costsharing for people with family incomes up to 120% of the poverty line, with the phase-in to be fully effective by 1995. See OBRA of 1990, § 4501. Finally, in § 4732 of the Balanced Budget Act of 1997, Pub. L. 105-33, Congress created the "Qualified Individual" program, through which most states provide cost-sharing assistance to Medicare beneficiaries with incomes up to 135% of poverty. Before this, President Reagan had developed and Congress had enacted an option for States to ignore parental income of any amount and provide Medicaid to disabled children in their homes rather than institutions. Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. No. 97-248, 96 Stat. 324, § 134 (adding 42 U.S.C. § 1396a(e)(3)). 1993­2008: There is also ample precedent for Medicaid coverage of childless adults prior to enactment of the ACA. Since Medicaid's inception, States have been authorized to obtain Federal funding to implement Medicaid demonstration projects. See 42 U.S.C. § 1315. States began to use this option in the mid 1990s to extend Medicaid coverage to childless, nondisabled adults whose incomes fall below a State-set percentage of the poverty level: This is precisely the population group assisted by the ACA. By 2008, 18 States had received Federal

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permission to extend coverage to childless, nondisabled adults using Federal Medicaid funds, including Arizona, Idaho, Indiana, Michigan, and Utah. See Keavney Klein & Sonya Schwartz, Nat. Acad. for State Health Pol., State Efforts to Cover Low-Income Adults Without Children (Sept. 2008). 2010: In the context of covering America's uninsured, the ACA's Medicaid provisions are a step towards better health care coverage and better health for low-income people, and this is just another step along the same path Medicaid has followed for the past 45 years. Simplified rules for who is eligible, with no requirement to apply for public cash assistance in order to get health care. Over time, Medicaid has provided coverage to lowincome children, pregnant women, elders and people with disabilities on the basis of their incomes, not their receipt of public welfare cash assistance. For more than 15 years, all States have been required to provide coverage for young children and pregnant women whose family incomes are at or below 133% of the poverty level, and for more than 10 years, most States have been required to provide coverage for Medicare beneficiaries with family incomes below 135% of poverty. Now, beginning in 2014, the ACA adjusts the Medicaid eligibility floor so that States not already doing so will extend coverage to nondisabled adults with family incomes below 133% of the poverty level. See ACA, § 2001. States have the option to implement the expansion early. As is typical for the Medicaid program, States retain options to provide additional coverage beyond the Federal floor. Id. As noted, all 20 of plaintiffs' States have provided coverage for at least some adults whose family incomes exceed 133% of poverty, while 17 of the 20 States have provided coverage for children and pregnant women whose family incomes exceed that level.

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Federal consideration for State budgets. The ACA contains exceptionally generous Federal funding to cover the costs associated with expanding coverage. At its outset in 2014, the improved Medicaid access will be entirely Federally funded. Even after State participation in funding is fully phased in by 2020, States will only be responsible for 10% of the costs associated with this group. See Health Care Education and Reconciliation Act, § 1201 (adding 42 U.S.C. § 1396b(y)(1)). Additionally, while the new law includes a "maintenance of effort" provision to discourage States from dropping coverage between now and 2014, there is an exception to this requirement for States that are in a "budget crisis." See ACA, § 2001(b) (adding 42 U.S.C. §§ 1396a(a)(74), 1396a(gg)).10 State options to cover additional home and community-based services. As noted above, Medicaid has always provided for a mix of mandatory and optional eligibility categories and mandatory and optional services and, since 1981, has included State options for covering additional home and community-based services. The ACA establishes several new State options to obtain Federal funds for dynamic, innovative programs for covering long-term care and home care for older people and people with disabilities. See, e.g., ACA § 2401 (Community First Choice), ACA § 2403 (Money Follows the Person Rebalancing).

By comparison, the State and Federal governments typically made the Medicaid expansions of the 1970s and 1980s using the regular Medicaid matching rates. Moreover, there is nothing unprecedented in Congress's attempting to ensure that States maintain their Medicaid programs while the adult coverage is being phased in. Maintenance of effort provisions were utilized early on, see Social Security Act Amendments of 1967, Pub. L. No. 90-248, 81 Stat. 821, § 2214, and Congress and the States have followed this pattern on numerous previous occasions. E.g., OBRA of 1986, § 9401(b) (adding 42 U.S.C. § 1396a(l)(4)(A)); Pub. L. No. 100-203, 101 Stat. 1330, § 4101(e)(4) (1987) (amending 42 U.S.C. § 1396a(l)(4)(A)). Nor is it unprecedented for there to be a link between States' maintenance of Medicaid efforts and enhanced Federal funding. See American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115, § 5001(f) (2009) (making temporary, substantial increases in each State's Federal funding, but, "to prevent constrictions of income eligibility requirements" specifying that States would not get increases if they employed eligibility standards more restrictive than those in effect on July 1, 2008).
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10

In sum, while altered over its history to improve health access for poor people, the Medicaid bargain remains much the same on March 23, 2010, after passage of the ACA, as it was in 1965. The Medicaid Act continues to provide States an entitlement to Federal funding for administration and services provided through the Medicaid program. Participation is not compulsory. However, to participate, States must adhere to minimum federal floor requirements with respect to eligibility, services, and program administration. Beyond the floor, States have considerable discretion in how they will implement the Federal requirements and to decide whether to go beyond what the Federal law requires. Conclusion The Defendants' Motion for Summary Judgment on Count Four of the Amended Complaint should be granted. Dated: Nov. 19, 2010 Respectfully submitted, American Academy of Pediatrics, AARP, American Public Health Association, Children's Dental Health Project, Families USA, Florida Advocacy Center for People with Disabilities, Florida Pediatric Society/Florida Chapter of the American Academy of Pediatrics, Florida Alliance for Retired Americans, Florida Community Health Action Information Network, Gray Panthers, Human Services Coalition of Dade County, Judge David L. Bazelon Center for Mental Health Law, National Alliance on Mental Illness, NAMI Florida, National Association of Community Health Centers, National Committee to Preserve Social Security and Medicare, National Disability Rights Network, National Health Law Program, National Partnership for Women and Families, SEIU Florida Healthcare Local 1991, Sargent Shriver National Center on Poverty Law, Voices for America's Children By their counsel /s/ Sarah Jane Somers / Sarah Jane Somers /s/ Jane Perkins / Jane Perkins*
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National Health Law Program 101 E. Weaver St., Suite G-7 Carrboro, NC 27510 [phone] [e-mail] [e-mail] * Not admitted in this district

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CERTIFICATE OF SERVICE I hereby certify that on November 19, 2010, the foregoing document was filed with the Clerk of the Court, using the CM/ECF system, causing it to be served on all counsel of record.

/s/ Sarah Jane Somers Sarah Jane Somers

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