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: [phone] Facsimile: [phone] E-mail: [e-mail] 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: [phone] Facsimile: [phone] E-mail: [e-mail] 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

[e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

/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: [phone] Fax: [phone] Email: [e-mail] Counsel for Proposed Amici Curiae Governors Tim Pawlenty and Donald L. Carcieri