Texas et al v. United States of America et al

Filing 91

RESPONSE filed by District of Columbia, State of California, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Kentucky, State of Massachusetts, State of Minnesota, State of New Jersey, State of New York, State of North Carolina, State of Oregon, State of Rhode Island, State of Vermont, State of Virginia, State of Washington re: 39 MOTION for Injunction (Attachments: # 1 Appendix of Supporting Evidence - Part 1, # 2 Appendix of Supporting Evidence - Part 2, # 3 Proposed Order) (Palma, Neli)

00237

00238

00239

00240

00241

00242

00243

00244

00245

00246

00247

00248

00249

00250

00251

00252

00253

00254

00255

00256

00257

00258

00259

00260

00261

00262

00263

00264

00265

00266

00267

00268

00269

00270

00271

00272

00273

00274

00275

00276

00277

00278

00279

00280

00281

00282

00283

00284

00285

00286

00287

00288

00289

00290

00291

00292

00293

00294

00295

00296

00297

00298

00299

00300

00301

00302

00303

00304

00305

00306

00307

00308

00309

00310

00311

00312

00313

00314

00315

00316

00317

00318

00319

00320

00321

00322

00323

00324

00325

00326

00327

00328

00329

00330

00331

00332

00333

00334

00335

00336

00337

00338

00339

00340

00341

00342

00343

00344

00345

Table 3
State Adoption of Optional Medicaid and CHIP Coverage for Children, January 2018

Coverage for Dependents of
State

State Employees in CHIP
(Total = 36)

Total
Alabama
Alaska
Arizona

Lawfully-Residing Immigrants
Covered without 5-Year Wait

5

3

2

Medicaid

18
Y
N/A (M-CHIP)

33

CHIP

(Total = 36)

Y

Y

Y
Y
Y
Y

N/A (M-CHIP)
Y
Y
Y

N/A (M-CHIP)
Y
Y
N/A (M-CHIP)

Y
Y

N/A (M-CHIP)
Y

Y

N/A (M-CHIP)

Y

Y

Y

Y

Y

Y

Y
Y
Y
Y

Y
N/A (M-CHIP)
Y
N/A (M-CHIP)
N/A (M-CHIP)

Y
Y

Y
N/A (M-CHIP)

Y
Y
Y
Y

N/A (M-CHIP)
Y
N/A (M-CHIP)
Y
Y

Delaware7
District of Columbia
Florida
Georgia
Hawaii
Idaho

6

6

Illinois
Indiana
8

Iowa
Kansas
Kentucky

Y
Y

Louisiana

12

N/A (M-CHIP)

Y

6

California
Colorado
Connecticut

Provides Medicaid Coverage to
Former Foster Youth up to Age 26
from Other States4

22

N/A (M-CHIP)
Y
Y

Arkansas

Y

Y

Y

Y

9

10

Y
N/A (M-CHIP)

Maine
Maryland
6

Massachusetts
Michigan
Minnesota
Mississippi
Missouri
9

Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico

N/A (M-CHIP)
N/A (M-CHIP)
Y
Y
N/A (M-CHIP)
Y
N/A (M-CHIP)
N/A (M-CHIP)

6,.

New York 9
North Carolina
North Dakota
Ohio
Oklahoma
Oregon

1, 2

Y
N/A (M-CHIP)
N/A (M-CHIP)

Y

6

Pennsylvania
Rhode Island

11

South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia

12

Y
N/A (M-CHIP)
N/A (M-CHIP)

N/A (M-CHIP)
N/A (M-CHIP)
Y

Y
Y
Y

Y
N/A (M-CHIP)
N/A (M-CHIP)

Y

Y

Y
Y
Y
N/A (M-CHIP)
Y

6

Washington
West Virginia
Wisconsin
Wyoming

Y

Y
Y

Y

Y
Y
Y
Y
Y
Y
Y

Y
Y
N/A (M-CHIP)
Y
Y
Y
Y

Y
Y

Y

SOURCE: Based on a national survey conducted by the Kaiser Family Foundation with the Georgetown University Center for Children and Families,
2018.
Table presents rules in effect as of January 1, 2018.

Medicaid and CHIP Eligibility, Enrollment, Renewal, and Cost Sharing Policies as of January 2018

00346

29

Table 12
Presumptive Eligibility in Medicaid and CHIP, January 20181
Pregnant Women

Children
State
Total
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas3
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico4
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
5

Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

2

Medicaid
20

CHIP
(Total =36)
11

2

Medicaid
30

N/A (M-CHIP)

Y
Y
Y
Y
Y

N/A (M-CHIP)
Y
Y

Y
Y
Y

N/A (M-CHIP)

Y
Y
Y

Y
Y
Y

N/A (M-CHIP)
Y
Y
Y
Y
Y

Y
Y
Y
Y
Y
Y
Y

N/A (M-CHIP)
Y

N/A (M-CHIP)
N/A (M-CHIP)

Y

Y
Y

Y
Y
N/A (M-CHIP)

Y
Y
Y

N/A (M-CHIP)
Y
N/A (M-CHIP)
Y

Y
Y
Y
Y
Y

Y
Y
Y
Y

Y

N/A (M-CHIP)
N/A (M-CHIP)

Y

Y
N/A (M-CHIP)
N/A (M-CHIP)
Y

Y
Y
Y
N/A (M-CHIP)

CHIP
(Total = 5)
3
N/A
N/A
N/A
N/A
N/A
Y
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
Y
N/A
N/A
N/A
N/A
Y
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A

Parents
9

Adults2
(Total = 33)
6
N/A

Family Planning
Expansion2
(Total = 29)
6

Former
Foster
Youth
10

N/A
N/A
N/A
Y
N/A
Y
N/A
N/A

Y

N/A
N/A
Y

N/A

Y
Y

Y

N/A
N/A
N/A
Y

N/A

N/A

Y
Y
Y

N/A
N/A
N/A
Y

Y

Y
Y

N/A
N/A
Y
N/A
Y
Y

Y

Y
N/A
N/A
Y
N/A
Y

N/A
Y

N/A
N/A
N/A
N/A
N/A
N/A

Y
N/A

N/A
N/A
N/A
N/A
N/A

N/A
N/A

Y

N/A
N/A
N/A
N/A

N/A
Y
Y
Y

Y
Y
Y

N/A
N/A
N/A
N/A

Y

Y

Y

N/A
Y

Y

N/A

Y

SOURCE: Based on a national survey conducted by the Kaiser Family Foundation with the Georgetown University Center for Children and
Families, 2018.
Table presents rules in effect as of January 1, 2018.

Medicaid and CHIP Eligibility, Enrollment, Renewal, and Cost Sharing Policies as of January 2018

00347

49

00348

00349

00350

00351

00352

00353

00354

00355

00356

00357

00358

00359

00360

00361

00362

00363

00364

00365

00366

00367

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

2

3
4

5

6
7

TEXAS, WISCONSIN, ALABAMA, ARKANSAS ,
ARIZONA, FLORIDA, GEORGIA, INDIANA,
KANSAS, LOUISIANA, PAUL LePAGE,
Governor of Maine, Governor Phil Bryant of the
State of MISSISSIPPI, MISSOURI, NEBRASKA,
NORTH DAKOTA, SOUTH CAROLINA, SOUTH
DA KOTA, TENNESSEE, UTAH, WEST
VIRGINIA, NEILL HURLEY and JOHN NANTZ,

8

Plaintiffs,
Civil Action No. 4: 18-cv-00167-0

9

10
11
12
13
14

UNITED STATES OF AMERICA, UNITED
STATES DEPARTMENT OF HEALTH AND
HUMAN SERVICES, ALEX AZAR, in his
Official Capacity as SECRETARY OF HEALTH
AND HUMAN SERVICES, UNITED STATES
INTERNAL REVENUE SERVICE, and DAVID
J. KAUTTER, in his Official Capacity as Acting
COMMISSIONER OF INTERNAL REVENUE,
Defendants.

15
16

17

18

19

CALIFORNIA, CONNECTICUT, DISTRICT OF
COLUMBIA, DELAWARE, HAWAll, ILLINOIS,
KENTUCKY, MASSACHUSETTS, MINNESOTA
by and through its Department of Commerce, NEW
JERSEY, NEW YORK, NORTH CAROLINA,
OREGON, RHODE ISLAND, VERMONT,
VIRGINIA and WASHINGTON,

20
Intervenors-Defendants.
21

22

DECLARATION OF JUDY MOHR PETERSON, IN SUPPORT OF INTERVENORSDEFENDANTS' OPPOSITION TO APPLICATION FOR PRELIMINARY INJUNCTION

23
24

25

26

I, Judy Mohr Peterson, declare:
1)

I serve as the Medicaid Director for the State of Hawaii. I have been in this role

since July 2015. Prior to that, I served as the Medicaid Director for the Oregon Health

27
Authority in the State of Oregon (2009-June 2015).
28
Deel. o f Judy Mohr Peterson in Support of lntervenors-Defcndants' Opposition to Application for Preliminary
Inj unction (4: I 8-cv-00 I 67-0 )

00368

2)

Med-QUEST, Department of Human Services, is the single state Medicaid Agency

2

for the State of Hawaii and implements Hawaii's Medicaid program. I am the administrator of

3

the Med-QUEST Division.

4
5

This declaration is submitted in support of the Intervenor-States' Opposition to

3)

Plaintiffs' Motion for Preliminary Injunction.

6

Granting a preliminary injunction would result in significant costs and

4)

7
8
9

injuries to the State Medicaid Agency and to state residents. Based on my knowledge and
experience, dismantling the Affordable Care Act would result in a loss of benefits and

10

services and federal investments to support Med-QUEST and the 360,000 beneficiaries

II

served. In addition, it would cause severe harm to the state of Hawaii, to its residents, and to

12

its economy. Hawaii would experience harm and increased costs from the dismantling of the

13

state's administrative structure and apparatus, created in compliance with, and to work in

14
conjunction with, the Affordable Care Act (ACA) in the following ways:
15
16

•

Hawaii's current eligibility system, KOLEA, is programmed to determine

17

Medicaid eligibility using ACA prescribed eligibility determination

18

methodologies. Changing the eligibility determination methodologies would

19

require extensive computer operating system modifications at an estimated cost of

20

$4,000,000.00 ($3,000,000 federal funds; $1,000,000 state funds);

21

•

Notices regarding changes to eligibility would have to be developed and sent out

22
to affected individuals. Approximately $1,000,000.00 (750,000.00 federal funds;

23
24

$250,000.00 state funds) would be needed for the development of new notices and

25

approximately $350,000 ($174,000.00 federal funds; $175,000.00 state funds)

26

would be needed for the production and mailing costs;

27

•

The State of Hawaii would incur an estimated $250,000 ($125,000.00 federal

28
2

Deel. of Judy Mohr Peterson in Support of Intervenors-Defendants' Opposition to Application for Preliminary
Injunction (4:18-cv-00167-0 )

00369

funds; $ 125,000.00 state funds) in costs related to training staff on new policies
and procedures;

2

3

•

4

A change in eligibility determination methodologies would cause major
interruption and delays in determination of eligibility benefits for applicants and

5

eligibility redetermination of beneficiaries (approximately 305,000 individuals);

6

5) Hawaii could lose billions of dollars provided through the Affordable Care Act
7
8

9

•

Specifically, Hawaii has received $2.1 billion via the Medicaid expansion.

•

The Public Health and Prevention Fund provides approximately $8 million

10

annually to Hawaii, which the state uses to manage and administer data systems

11

like the Behavioral Risk Factor Surveillance System and Hawaii's Surveillance

12

and Disease Outbreak Management System. The funding is also used to recognize

13
disease trends, incidence, and impact, and to develop preventive and response
1
4
measures as needed. Health care services to those with HIV or Zika are also

15

affected.

16
17
18

6) Thousands of Hawaii residents could lose access to affordable coverage
•

19

Overall the number of individuals with insurance has increased. In Hawaii, the
rate of uninsured was 5% in 2016, the most recent figure available. The ACA

20
expanded coverage through two key mechanisms: Medicaid expansion for those
21
individuals with the lowest incomes, and federal health subsidies to purchase

22

coverage in new health insurance Exchanges for those individuals with moderate

23

mcomes.

24
25
26
27

•

Medicaid is an important source of healthcare insurance coverage and has resulted
in coverage gains and reduction in the uninsured rate, both among the low-income
population and within other vulnerable populations. As a result of Medicaid

28
'.I
Deel. o f Judy Mohr Pe terson in Support of Intervenors-Defendants' Oppositio n to Application for Preliminary
Inj unc tion (4: 18-cv-OO 167-0 )

00370

expansion in Hawaii, 117,000 people have coverage -- approximately one-third of

2

our total of 360,000 on Medicaid -- and the state has experienced a reduction in the

3

uninsured rate. This 117,000 figure includes individuals who became eligible for

4

Medicaid under Hawaii's early (pre-2013) expansion as well as the 33,000 who

5

became eligible under the further expansion implemented in October 2013.

6

Without the ACA, all of these people would lose coverage. About 30% of the

7
expansion group suffers from mental illness, 4% of them with severe mental

8
9

illness; 1 in 4 have diabetes; 30% have asthma while 1 in 8 has chronic obstructive

10

disease; and over one third struggle with some sort of substance use issue. Lack of

11

health insurance would likely lead to an exacerbation of the health conditions,

12

negatively impacting their health. On average, Hawaii spends about $510 monthly

13

for each Medicaid expansion person or about $6,120 annually. We receive

14
enhanced federal match for this population.
15
16

•

Using alternate eligibility determination methodologies would result in many

17

beneficiaries losing eligibility which in turn would cause loss of revenue for

18

providers and health plans, and reduced federal matching dollars;

19

•

20

An injunction of the ACA would impact all of the non aged, blind, or disabled
groups, affecting approximately 80% of the total Medicaid population of Hawaii,

21
which currently stands at 362,464 beneficiaries (as of March, 2018);
22
23

•

Hawaii's low-income population would lose coverage if or until CMS approves an

24

1115 waiver amendment to cover the low-income population. However, Hawaii

25

would have to demonstrate that coverage of this population would be "budget

26

neutral", in other words, that it would not cost more to the federal government than

27

not covering them. A budget neutrality test would be extremely diffic ult to pass

28
4

Deel. of Judy Mohr Peterson in Suppo rt of Intervenors-De fondants' Oppositio n to Applicatio n for Preliminary
Inj unctio n (4: (8.cv-00167 -0 )

00371

making it more likely that the entire ACA adult expansion population would lose

2

their eligibility if they did not qualify for any other program. Even if Hawaii were

3

able to reinstate this population by way of an 1115 waiver, Hawaii would Jose the

4

enhanced match for that population.

5

•

The Exchange is an important reform made by the ACA. In Hawaii in 2017,

6

16,711 people were covered on the Marketplace, with 13,728 eligible for APTC
7

subsidies.

8

9

7) The loss of programs that were expanded under the ACA would lead to a

10

decrease in opportunities to access home and community based services.

11

•

12

Medicaid Money Follows the Person Demonstration: in 2015 Hawaii received
over $2 million under this program. It has helped move 584 people living in

13
institutions into home or community based settings.
14

15
16

8) All of the foregoing injuries would occur if the Plaintiffs' motion for preliminary

injunction were granted.

17
18

I declare under penalty of perjury that the foregoing is true and correct and of my own

19

personal knowledge.

20

Executed on June Q..5., 2018, in Honolulu, Hawaii.

21

22

23
J dy ohr Peterson
Administrator, Med-QUEST Division
Department of Huma n Services
State of Hawaii

24
25
26

27
28
5
Deel. of Judy Mohr Peterso n in Support of Intervenors-Dcfcndants' O ppositio n lO Application for Preliminary
Inj unction (4: I 8-cv-00 167-0)

00372

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

TEXAS, WISCONSIN, ALABAMA, ARKANSAS,
ARIZONA, FLORIDA, GEORGIA, INDIANA,
KANSAS, LOUISIANA, PAUL LePAGE,
Governor of Maine, Governor Phil Bryant of the
State of MISSISSIPPI, MISSOURI, NEBRASKA,
NORTH DAKOTA, SOUTH CAROLINA, SOUTH
DAKOTA, TENNESSEE, UT AH, WEST
VIRGINIA, NEILL HURLEY and JOHN NANTZ,
Plaintiffs,
Civil Action No. 4:18-cv-00167-0

v.
UNITED STATES OF AMERICA, UNITED
STATES DEPARTMENT OF HEALTH AND
HUMAN SERVICES, ALEX AZAR, in his Official
Capacity as SECRETARY OF HEALTH AND
HUMAN SERVICES, UNITED STATES
INTERNAL REVENUE SERVICE, and DAVID J.
KAUTTER, in his Official Capacity as Acting
COMMISSIONER OF INTERNAL REVENUE,
Defendants.

CALIFORNIA, CONNECTICUT, DISTRICT OF
COLUMBIA, DELAWARE, HAWAll, ILLINOIS,
KENTUCKY, MASSACHUSETTS, MINNESOTA
by and through its Department of Commerce, NEW
JERSEY, NEW YORK, NORTH CAROLINA,
OREGON, RHODE ISLAND, VERMONT,
VIRGINIA and WASHINGTON,
Intervenors-Defendants.
DECLARATION OF CLAUDIA SCHLOSBERG IN SUPPORT OF INTERVENORSDEFENDANTS' OPPOSITION TO APPLICATION FOR PRELIMINARY
INJUNCTION

Deel. of Claudia Schlosberg in Support ofli1tervenor -Defendants Opposirion to Motion for Preliminary Injunction
(4:18-cv-00167-0)

00373

I, Claudia Schlosberg, declare:

1.

This declaration is submitted in support of the Intervenors-Defendants' Opposition

to the Motion to Intervene. Based on my knowledge and experience, dismantling the Affordable
Care Act would cause severe harm to the District of Columbia, to its residents and to its
economy. In addition to loss of benefits and services and federal investments to support the
District of Columbia's healthcare system, dismantling or suspending implementation of the
Affordable Care Act would cause severe harm to the District of Columbia, to its residents and to
its economy. The District of Columbia would experience harm and increased costs from the
dismantling of the District's administrative structure and apparatus, created in compliance with,
and to work in conjunction with, the Affordable Care Act.

2.

I am the Senior Deputy and State Medicaid Director for the Department of Health

Care Finance (DHCF) for Washington, D.C. I am responsible for the effective management of
the Medicaid, CHIP and Alliance Health Insurance Programs. Together, these programs provide
DHCF health insurance coverage to over 270,000 low income residents of the District of
Columbia. I currently oversee policy development, eligibility, fee-for-service and managed care
service delivery, program operations, program integrity, long-term care and implementation of
health care reform and innovation. Previously, I served as DHCF's Director of the Health Care
Policy and Research Administration. I have been employed at DHCF since August 2011 and
have over 30 years of experience in health care policy, program administration and regulatory
and legislative affairs pertaining to publicly-financed health care programs.
3.

DHCF is the single state agency for the administration of Medicaid in the District

of Columbia (the District). DHCF is accountable to the United States Centers for Medicare and
2
Deel. of Claudia Schlosberg in Support oflntervenors-Defendants Opposition to Motion for Preliminary Injunction
(4: l 8-cv-00167-0)

00374

Medicaid Services (CMS), the federal agency responsible for administration and oversight of the
Medicaid program under Titles IXX and XX.I of the Social Security Act, as amended by the
Patient Protection and Affordable Care Act (the ACA) and accompanying regulations. Under the
Affordable Care Act, the District has made significant gains with regard to healthcare funding,
Medicaid coverage, access to care, and the quality of health care services delivered, as
highlighted below:

4. The Affordable Care Act directs significant funding to the District of Columbia:
•

Specifically, the District of Columbia has received $2.05 billion in federal reimbursement for
Medicaid expansion; $53 million in grants provided under the Public Health and Prevention
Fund from 2010 to 2016 1; $4.2 million in grants and funding from the Center for Medicare
and Medicaid Innovation; and $6.8 million in federal Medicaid reimbursement to provide
Health Home services authorized under Section 2703 of the ACA.

5.
•

The Affordable Care Act increased access to affordable coverage.

The ACA expanded coverage through two key mechanism: Medicaid expansion for those
individuals with the lowest incomes, and federal health subsidies to purchase coverage in
new health insurance exchanges for those individuals with moderate incomes.

•

From 2010 to 2016, the District's overall uninsured rate fell 44%, from 7.8% to 4%, and the
uninsured rate for the lowest-income individuals (0-199 percent of the federal poverty level
(FPL) covered under the District's Medicaid expansion program fell 42 percent, from 13.5
percent to 7.8 percent. This increase in coverage has directly resulted from the ACA' s new
affordable coverage options and the Medicaid expansion, combined with new support for
outreach from assisters and one-stop streamlined enrollment through the Health Benefits
Exchange portal, DC Healthlink, all funded and directed under the ACA.

1 Prevention and Public Health Fund Detailed Information - Trust for America's Health (Trust for
America's Health, August 2017) http://healthyamericans.org/report/134/.

3

Deel. of Claudia Schlosberg in Support oflntervenors-Defendants Opposition to Motion for Preliminary Injunction
(4 : 18-cv-OO 167-0 )

00375

•

Medicaid is an important source of healthcare insurance coverage and has resulted in
significant coverage gains and reduction in the uninsured rate, both among the low-income
population and within other vulnerable populations. Nearly 60 percent of the 321,518
individuals served by the District Health Benefits Exchange from when the Exchange opened
in October 2013 through April 2017 were Medicaid beneficiaries. In FY 2017, the District
Medicaid program provided coverage to approximately 40 percent of all District residents.
Total average monthly Medicaid enrollment has grown 54 percent since the District
expanded Medicaid, from nearly 170,000 in 2010 to 262,250 in 2017 and most of these
coverage gains have been from the Medicaid expansion eligibility group. The District's
generous levels of coverage for children under Medicaid and a CHIP-funded Medicaid
expansion have also contributed to strong coverage rates overall. The District's rate of
insurance coverage for children (97%) and its participation rate in public coverage programs
(98.6%) are among the highest in the nation. In FY 2017, 93,184 childless Medicaid
expansion adults and 89,491 children were enrolled in the District's Medicaid program, with
each group comprising one-third of total Medicaid enrollment.

•

The ACA has led to increased access to affordable care in the District as well as improved
financial security for individuals who previously experienced trouble paying medical bills.
According to the Commonwealth Fund, from 2013 to 2016, there was approximately a 20
percent decrease in the number adults in the District who went without care due to cost and a
similar decrease in the number of individuals with high out-of-pocket medical spending. 2
From 2013 to 2016, there was a 40 percent decrease in the number of at risk adults who were
without a routine doctor visit in the past two years.

6.
•

The ACA has had a positive economic benefit for the District.

The District has realized budget savings and revenue gains under the ACA.

2 Susan Hayes, et al., What 's at Stake: States' Progress on Health Coverage and Access to Care, 20132016 (The Commonwealth Fund, Dec. 2017) http://www.commonwealthfund.org/publications/issuebriefs/201 7/dee/states-progress-health-coverage-and-access.

4

Deel. of Claudia Schlosberg in Support oflntervenors-Defendants Opposition to Motion for Preliminary Injunction
(4: 18-cv-OO 167-0)

00376

•

As an estimate of the substantial economic gains the District has experienced from coverage
expansions and other provisions of the ACA, the Economic Policy Institute estimated that the
District would lose between an estimated $100 and $146 million in federal health care
spending per year in the event of ACA repeal. 3

•

The District also gained financially by having the federal government fund programs that
were previously locally funded. Before the ACA was enacted, the District operated the DC
Healthcare Alliance Program (Alliance), a 100 percent locally-funded program designed to .
provide medical assistance to low-income District residents ineligible for Medicaid or
Medicare. With the Medicaid expansion to childless adults in 2010, the District was able to
transition over 30,000 individuals who previously received coverage under the Alliance
program to the new Medicaid expansion, thereby shifting the financial burden for coverage
for these individuals from local to federal funds, which were covered at 100% federal
medical assistance percentage in the first few years. In 2014 and 2015, the District saved
approximately $82 million in averted local spending as a result of receiving federal matching
funds for these individuals who previously were enrolled in the District's Alliance program. 4

•

By covering previously uninsured and underinsured individuals, the District's Medicaid
expansion also enabled the District to save in spending for locally-funded behavioral health
service programs that previously provided services to most of the more than 93,000
individuals now covered under the childless adult expansion.

•

District hospital uncompensated care costs declined by 60% from $250,000 in 2010 to
$100,000 in 2015 as the District's Medicaid expansion and ACA coverage expansion was
implemented. 5

3 Josh Bivens, Repealing the Aff rdable Care Act Would Cost Jobs in Every State (Economic Policy
o
Institute, (Jan. 31, 2017) https://www.epi.org/files/pdf/120447.pdf.
4 Deborah Bachrach, et al., States Expanding Medicaid See Significant Budget Savings and Revenue Gains,
(RWJF State Health Reform Assistance Network, March 2016),
https://www.rwjf.org/contcnt/dam/farm/report. /issue briefs/20 I 6/rwjf419097
5 Uncompensated Care Summary, 20 I 0-2015, DC Department of Health, State Health Planning
Development Administration,
ed
htlps://hbx.dc.gov/ ites/defaul files/dc/sites/hbx/event conte11Uauachments/U11compensated care upda1 IO I 1

(continued ... )
5

Deel. of Claudia Schlosberg in Support of lntervenors-Defendants Opposition to Motion for Preliminary Injunction
(4: 18-cv-00167-0)

00377

•

Researchers have estimated that the District has also experienced strong job and economic
growth as a result of the ACA and could risk losing an estimated 1,400 jobs in year one and
over 6,000 jobs over the next eight years if the ACA or its Medicaid expansion is repealed. 6

7.

The ACA expanded Medicaid programs to provide States with increased

opportunities to increase access to home and community based services.

•

The ACA extended and expanded the Money Follows the Person (MFP) demonstration
program. The District's MFP rebalancing demonstration project is a pathway to independent
living for individuals who have physical disabilities, and with intellectual and developmental
disabilities. MFP functions through the District's two home and community-based (HCBS)
waiver programs operated by DHCF and the District's Department on Disability Services.
The federal grant program provides support to the District in order to shift Medicaid
spending on long-term care away from a facility based system to one that offers services and
supports in HCBS by allowing individuals receiving to choose where to receive their
services. The District has received a cumulative award of $18.5 million under the
demonstration program attributable to the ACA, from 2012 until the first quarter of FY 2018.

•

In addition to covering HCBS costs for these individuals at an enhanced federal match rate
for up to 365 days after discharge, the MFP grant provided important support to build the
District's capacity to provide transition coordination, housing identification, and intensive
case management services for people moving from facility-based care to the community.
From its inception in 2008 to 2014, MFP has transitioned an average of 29 beneficiaries per
year from facilities to HCBS. From 2015 to 2017, MFP transitioned approximately 38
beneficiaries per year. In 2017, MFP funding helped transition 38 beneficiaries to the
community and another 40 beneficiaries received HCBS and support services funded through
the demonstration.

15.pdf
6

Bivens, supra note 3.
6

Deel. of Claudia Schlosberg in Support of Intervenors-Defendants Opposition to Motion for Preliminary Injunction
(4: l 8-cv-00167-0)

00378

8.

The ACA has allowed the District to test and implement reforms to healthcare

delivery systems that support State policy priorities of increasing efficiency and quality of
care.
Under CMMI State Innovation Model (SIM) Round Two, DHCF spent over $720,000 of a
Design Award to develop a State Health Innovation Plan (SHIP). The SHIP set forth the
District's plan to: reform care delivery by implementing an integrated system capable of
delivery value-based care; reform reimbursement by designing a payment structure that
aligns provider reimbursement with improvement in health outcomes; and improve
population health through integration of community linkages and care redesign. As the
District works toward realization of the goals set forth in the SHIP DHCF has implemented
several programs and initiatives. A few of these initiatives are set forth below.

Health Homes
On January 1, 2016, DHCF, in coordination with the District Department of Behavioral
Health, launched My DC Health Home, a new Health Home benefit (authorized under
Section 2703 of the ACA) for Medicaid beneficiaries with serious and persistent mental
health care needs. The health home provider coordinates a person's full array of health and
social service needs- including primary and hospital health services; mental health care,
substance abuse care and long-term care services and supports. My DC Health Home
currently provides services to over 1,700 District Medicaid beneficiaries. The goal of the
program is to serve unmet need in this vulnerable population an in the process reduce
avoidable health care costs, specifically preventable hospital admissions, readmissions, and
avoidable emergency room visits for the individuals with serious and persistent mental
illnesses enrolled My DC Health Home.
On July 1, 2017, DHCF launched My Health GPS, a second Health Home program for
Medicaid beneficiaries with multiple chronic conditions. Under this initiative,
interdisciplinary teams embedded in the primary care setting serve as the central point for
7

Deel. of Claudia Schlosberg in Support of Intervenors-Defendants Opposition to Motion for Preliminary Injunction
(4 : 18-cv-00167-0)

00379

integrating and coordinating the full array of eligible beneficiaries' primary, acute,
behavioral health, and long-term services and supports to improve health outcomes and
reduce avoidable and preventable hospital admissions and ER visits. My Health GPS
currently serves over 3,500 District Medicaid beneficiaries.
Payment Reform Initiatives

DHCF has also implemented a number of payment reforms for providers in an effort to move
incrementally toward the goal of value-based purchasing. Payment reform initiatives include:
a pay-for-performance program for Federally-Qualified Health Centers; a quality
improvement incentive program for nursing facilities; and two quality improvement incentive
programs for My Health GPS providers.
9.

All of the foregoing benefits of the Affordable Care Act would be removed if the

Plaintiffs' preliminary injunction were granted.
I declare under penalty of perjury that the foregoing is true and correct and of my own
personal knowledge.
Executed on June 6, 2018, in Washington, District o

8

Deel. of Claudia Schlosberg in Support oflntervenors-Defendants Opposition to Motion for Preliminary Injunction
(4: 18-cv-00167-0)

00380

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

TEXAS, WISCONSIN, ALABAMA, ARKANSAS,
ARIZONA, FLORIDA, GEORGIA, INDIANA,
KANSAS, LOUISIANA, PAUL LePAGE,
Governor of Maine, Governor Phil Bryant of the
State of MISSISSIPPI, MISSOURI, NEBRASKA,
NORTH DAKOTA, SOUTH CAROLINA, SOUTH
DAKOTA, TENNESSEE, UTAH, WEST
VIRGINIA, NEILL HURLEY and JOHN NANTZ,
Plaintiffs,
Civil Action No. 4:18-cv-00167-O

v.
UNITED STATES OF AMERICA, UNITED
STATES DEPARTMENT OF HEALTH AND
HUMAN SERVICES, ALEX AZAR, in his
Official Capacity as SECRETARY OF HEALTH
AND HUMAN SERVICES, UNITED STATES
INTERNAL REVENUE SERVICE, and DAVID
J. KAUTTER, in his Official Capacity as Acting
COMMISSIONER OF INTERNAL REVENUE,
Defendants.

CALIFORNIA, CONNECTICUT, DISTRICT OF
COLUMBIA, DELAWARE, HAWAII, ILLINOIS,
KENTUCKY, MASSACHUSETTS, MINNESOTA
by and through its Department of Commerce, NEW
JERSEY, NEW YORK, NORTH CAROLINA,
OREGON, RHODE ISLAND, VERMONT,
VIRGINIA and WASHINGTON,
Intervenors-Defendants.

DECLARATION OF RYAN SMITH IN SUPPORT OF INTERVENORS-DEFENDANTS’
OPPOSITION TO APPLICATION FOR PRELIMINARY INJUNCTION

00381

I, Ryan Smith, declare:
1.

I am 28 years old and a resident of Chicago, Illinois. I am currently employed as a
legal assistant and will be attending law school in fall 2018.

2.

In the summer of 2013 my physician diagnosed me with two separate mental
illnesses: generalized anxiety disorder and panic disorder. I made the decision to go
on a daily medication to manage my mental illness. At the time, my employer
provided health insurance that made the cost of my medications affordable. Prior to
medication, I was experiencing daily panic attacks. They were debilitating in that
they lasted for hours, left me unable to sleep at night, and interfered with my normal
work routine. The medication I was prescribed, Sertraline, helped prevent my panic
attacks. I went from having one to two every day to having none at all.

3.

In the fall of 2014, I lost my job and with it, my health benefits. Fortunately, my
then-home of Michigan had established a healthcare exchange, and I was able to
purchase health insurance on the exchange that was affordable, thanks in part to
subsidies provided by the ACA. This helped keep the cost of my medication and
doctor's visits at an affordable level. Without insurance, my prescriptions would have
cost hundreds of dollars a month, which I could not afford while I was unemployed.

4.

If I had not been able to afford my medication, searching for a job would have been
exceptionally difficult, and my unemployment would have been prolonged. With my
medication, and the affordable insurance I had through the healthcare exchange, I
was able to actively search for employment. Access to mental healthcare is as critical
as access to physical healthcare, and without the Affordable Care Act, my experience
with unemployment might have been substantially worse.

00382

5.

Even though I am no longer covered through a plan purchased through the
marketplace, I continue to utilize mental health services, and the protections offered
under the Affordable Care Act remain critical. I know that whatever plan I enroll in
will include mental health services as an essential health benefit, that mental health
treatments will be in parity with other kinds of health services, and I will never be
discriminated against for a pre-existing condition.

6.

I support the Intervenor-Defendants' defense of the ACA. Elimination of the ACA
would hurt me and my family.

I declare under penalty of perjury that the foregoing is true and correct and of my own
personal knowledge.
Executed on June 1, 2018, in Chicago, Illinois.

Rya~ Smith

00383

1

2

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

3
4

9

TEXAS, WISCONSIN, ALABAMA, ARKANSAS,
ARIZONA, FLORIDA, GEORGIA,
INDIANA, KANSAS, LOUISIANA,
PAUL LePAGE, Governor of Maine,
Governor Phil Bryant of the State of
MISSISSIPPI, MISSOURI,
NEBRASKA, NORTH DAKOTA,
SOUTH CAROLINA, SOUTH
DAKOTA, TENNESSEE, UT AH,
WEST VIRGINIA, NEILL
HURLEY and JOHN NANTZ,

10

Plaintiffs,

5
6

7
8

Civil Action No. 4:18-cv-00167-0

11
12
13
14
15

\.TES OF AMERICA, UNITED STATES
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ALEX AZAR, in his Official
Capacity as SECRETARY OF HEALTH AND
HUMAN SERVICES, UNITED STATES
INTERNAL REVENUE SERVICE, and DAVID
J. KAUTTER, in his Official Capacity as Acting
COMMISSIONER OF INTERNAL REVENUE,

16
Defendants.
17
18

19

20
21

22
23
24
25
26

CALIFORNIA, CONNECTICUT, DISTRICT OF
COLUMBIA, DELAWARE,
HAWAll, ILLINOIS, KENTUCKY,
MASSACHUSETTS, MINNESOTA
by and through its Department of
Commerce, NEW JERSEY, NEW
YORK, NORTH CAROLINA,
OREGON, RHODE ISLAND,
VERMONT, VIRGINIA and
WASHINGTON,
Intervenors-Defendants.

DECLARATION OF DR. KARA ODOM WALKER IN SUPPORT OF INTERVENORSDEFENDANTS' OPPOSITION TO APPLICATION FOR PRELIMINARY INJUNCTION

27

28
Deel. of Dr. Kara Odom Walker in Support ofintervenors-Defendants' Opposition to Application for Preliminary
Injunction (4:18-cv-00167-0)

00384

1

I, Dr. Kara Odom Walker, declare:

1.

2
3

•

(DHSS). I have served as the Secretary of the DHSS since February 6, 2017. Prior

4

to my present post, I served as the Deputy Chief Science Officer at the Patient-

5

Centered Outcomes Research Institute (PCORI) in Washington D.C. from August

6

2012 to January 2017. Furthermore, as a family physician with health services and

7

community-based participatory research training, I previously was an assistant

8

clinical professor in family and community medicine at the University of California,

9

San Francisco, where I developed measurement instruments to better understand

10

integrated care in health systems for diverse populations from July 2010 to July

11

2012.

12
13

•

MPH from Johns Hopkins University. I completed postgraduate training at

15

University of California, San Francisco, and served as a Robert Wood Johnson

16

Clinical Scholar at the University of California, Los Angeles, where I conducted

17

research on the impact of hospital closure on underserved, minority populations.

18

20
21

22
23
24

I graduated with honors from the University of Delaware with a BS in chemical
engineering. Thereafter I received my MD from Jefferson Medical College and

14

19

I am the Secretary of the Delaware Department of Health and Social Services

•

As an advocate for health equity and minority and underserved populations, I was
recognized for leadership by the Harvard Business School's program for leadership
development, the American Medical Association, and the National Medical
Association. I served as past national president of the Student National Medical
Association and past postgraduate physician trustee of the National Medical
Association.

25

2. As one of the largest agencies in state government, DHSS has 11 divisions, employs

26

more than 4,000 people and in one way or another affects almost every citizen in our

27

great state. Our divisions provide services in the areas of public health, social services,

28
Deel. of Dr. Kara Odom Walker in Support oflntervenors-Defendants' Opposition to Application for Preliminary
Injunction (4: 18-cv-OO 167-0)
2

00385

1

substance abuse and mental health, child support, developmental disabilities, long-term

2

care, visual impairment, aging and adults with physical disabilities, state service

3
4
5
6
7

centers, management services, financial coaching, and Medicaid and medical assistance.
The Department includes three long-term care facilities and the state's only public
psychiatric hospital, the Delaware Psychiatric Center.
3. This declaration is submitted in support of the Intervenor-States' Opposition to the

8

Application for Preliminary Injunction. Based on my knowledge and experience,

9

dismantling the Affordable Care Act would cause severe harm to the State of Delaware,

10
11
12
13
14

to its residents and to its economy. In addition to loss of benefits and services and federal
investments to support Delaware's healthcare system, dismantling or suspending
implementation of the Affordable Care Act would cause severe harm to the State of
Delaware, to its residents and to its economy. Delaware would experience harm and

15

increased costs from the dismantling of the state's administrative structure and apparatus,

16

created in compliance with, and to work in conjunction with, the Affordable Care Act.

17
18
19
20
21
22
23
24
25
26
27
28

4. The Affordable Care Act directs billions of dollars directly to Delaware.
• Delaware has received $800 million via Medicaid expansion alone.
5. The Affordable Care Act (ACA) increased access to affordable coverage.
Overall the number of individuals with insurance has increased. In Delaware, the
percentage of population which was uninsured fell from 9.1% in 2013 to 5. 7% in
2016. This translates into the number of people without coverage falling from 83,000
in 2013 to 53,000 in 2016"'
• The ACA expanded coverage through two key mechanisms: Medicaid expansion for
those individuals with the lowest incomes, and federal health subsidies to purchase
coverage in new health insurance Exchanges for those individuals with moderate
mcomes.
Deel. of Dr. Kara Odom Walker in Support oflntervenors-Defendants' Opposition to Application for Preliminary
Injunction (4: 18-cv-OO 167-0)

00386

1

• Medicaid is an important source of healthcare insurance coverage and has resulted in

2

significant coverage gains and reduction in the uninsured rate, both among the low-

3

income population and within other vulnerable populations. As a result of Medicaid

4

expansion Delaware has been able to provide coverage to 11,000 new enrollees and

5

maintain coverage for 50,000 adults from an earlier expansion with enhanced federal

6

financial support, and the state has experienced a large reduction in the uninsured

7

rate.

8
9

10
11
12

6. The ACA has positive economic benefits on states.
• Studies have shown that states expanding Medicaid under the ACA have realized
budget savings, revenue gains, and overall economic growth.
• In Delaware, $500 million has been saved as a result of Medicaid expansion.
7. The ACA has allowed States to test and implement reforms to healthcare

13

delivery systems that support State policy priorities of increasing efficiency and

14

quality of care.

15

• Delaware received Center for Medicare and Medicaid Innovation (CMMI) grants

16
17
18

19

totaling $35 million over four years (2015-2018).
8. All of the foregoing benefits of the Affordable Care Act would be removed if the
Plaintiffs' motion for preliminary injunction were granted.
I declare that the foregoing is true and correct based on information and belief.

20
21

22
23
24
25

Executed on June 6, 2018, in New Castle, Dela ~

---=--

~ r"".Ka~""- O _m W al"!'""' r __,__._ _ _ __
ra ~do .....,'!'-,-, kAn
e_
Cabinet Secretary
Delaware Department of Health
and Social Services

26
27
28
Deel. of Dr. Kara Odom Walker in Support oflntervenors-Defendants' Opposition to Application for Preliminary
Injunction (4: l 8-cv-00167-0)
4

00387

Jun.04.2018

07:00 AM BRODWAY GLASS* MIRROR

607 734 9820

PAGE.

1/

3

IN THF llNITED STATES DISTRICT COllltT
FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Tl·Xi\S. WISCONSIN. ALAR/\Mi\. i\RK/\NS/\S.
ARIZONA. 1--LORIIJA, liH)RlilA, INDIANA,
KANSAS, LOUISIANA, PAUL LePAGF,
(iovcrnor of Maine. novemor Phil Bryant of thL:
Statt: ol' MISSISSIPPI, MISSOlJKL NEU.1{. ASKA,
NORTH DAKOTA, SOUTH CAROLTNA, SOUTH
DAKOTA. TFNNESSFF. UTAH. WEST
VIIHilNIA, N~.:ILL HlJRLEY and JUIIN NANTZ,

Plainli rl:,;,
Civil Action No. 4:18-cv-00167-0

V.
l IN ITFD S IAll•:s OF t\Ml~KICA, l.lNlll:'.l)
STATES OEPARTMLNI 01" Ill.::ALTJI AND
Ill lMAN SERVICES. ALFX AZAR. in his
Olfo.:iul Capai:ily as SH'RLIAK Y OJ< IIEALI II
AND HUMAN SERVICES. UNITED STATES

INTFRNAL RP.VFNlJF SFRVICF. and Di\ YID
J KAl JTJJ-,:R, in his Olfo.:ial Capacity as Acting
COMMISSIONER lW INTERNAL REVENUE.
lkle11da11ts,

CAI .IFORNI/\, CONNECTIClJJ, DISTRICT 01·
COLl.lMIJIA. DELAWARE, HAWAII, TLUNOIS.
K FNTI. Jl'K ·y, M/\SS/\Cl ll JSFITS, MINNFS< HI\
hy and through its Department of Commerce, NEW
JERSEY. NEW Y<)RK. NORTII CAROLINA.
< >RH.a lN. RI IODF ISi AND. VFRMONT.
VIR<,INIA and WASHINGTON,
l11Lcrvcnors-lkknJa11ts.

l.lECLARATION OF SHERRY WHITE IN SUPPORT OF INTERVENORSDRFRNDANTS' OPPOSITION TO APPLICATION ~'OR PR1£LIMINARY
IN.llJNCTION

I. Sherry White, declare:
I..

I am 46 years oltl and a resident ol'Coming, New York .

00388

...

Jun.04.2018

07:00 AM BRODWAY GLASS* MIRROR

'

607 734 9820

PAGE.

2/

My hushand and I arc self-employed small husincss owners. and we have hud to
purchase our own insurance for the last 15 years.

3.

Prior to th.: Affordable Care Act, our family of four pun.::hascd a plan through the
privntc market at $XOO per monlh. While our family is frirtunatc to be relatively
healthy, we found ourselves needing our insurance for several small things over the
years and each lime, we t(1urnl that our plan did not provide thi: 1.:overagt: we nec<led.

For example. I required physical therapy ufter I Lore a tendon in my wrist and my
husband needed a CP J\P machine to treat sleep apnea. l leame<l lhat our plan did not

!.:Ovi.::r both my physical therapy and his Cl);\P machine and we were fon.:cd to pay

nut of pocket if we w~mtcd care.
4.

We found ourselves paying for a plan that did not cover what we needed and cost
mon.: than our mortgag!;'. And al one point,

VA'

were frirccd to choose between paying

for the premiums and putting groceries on the tahle. We chose to drop our coverage.

5.

Recause

or the Affordable Care Act, we were able to purchase a plan through lhe NY

Stale of l kalth state marketplace that is rnorc robust thun our previous coverage and,

alter the tax credit subsidy is taken into account half'oftht~ price. Because of the
provision allowing children to stay on their parents' plan, we have been able to cover
our young adult daughl.t'rs unti I they arc ahie lo secure coverage of thdr own.

6.

Tl is impossihk tn overstate the importance of the essential health henel1Ls

f(ff

our

family. Between us, we havi.:: been abk to receive coverage for preventive services.
prcs1.:ription drugs, mcdkal t,.piipmenl. and a hospitalization. Thankfully, we no

longer have to worry nhout our plan turning down care the way our last onl: did.
7.

Having stahlt:!, comprnhensive coverage has helped us avoid a catastrophe that would

huvc rt'4uired us to close our husin~ss. While on this plan, I expcrienc1.:d a kidney
stone and was forced to go to the hospital; the lithotripsy and overnig;ht hospit.al stay

cost us over $ I0,000. If our insurance did not have meaningful coverage for
hospit.ali1.ations and limits l.o our oul nl'pnckd costs, it would have hccn

00389

3

Jun.04.2018

07:00 AM BRODWAY GLASS* MIRROR

607 734 9820

PAGE.

3/

cala-:lrophic. There is no way we could h,.1v1.: afforded to pny th.it <1111 <)f pocket. ;\s
small business owners, ,vhe.n we arc injured or sick. we close the doors and lose all
sources of incoml!.

R.

Thi.: Alfordahlc ( '.lr~~ /\l:l has given our family the covcr:Jµ!.: and scrnrity of knowing

that if we get sick, we ,vill not go bankrupt as a result.
9.

I support lfw lntervl:'.nor-LkknJanls' dcfonsc of the ACA. Elimination of the i\CA
would hurl me and my fomily.

I dtdarc under penalty of pc~jury that I.he foregoing is true and correct and of' my own
personal knowltdg1.:.

Executed on June 1,2018 in Corning, N. Y.

<.;,\~018100~\(,

00390

3

1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF TEXAS
3

FORT WORTH DIVISION

4
5
6

10

TEXAS, WISCONSIN, ALABAMA,
ARKANSAS, ARIZONA, FLORIDA,
GEORGIA, INDIANA, KANSAS,
LOUISIANA, PAUL LePAGE, Governor of
Maine, MISSISSIPPI, by and through
Governor Phil Bryant, MISSOURI,
NEBRASKA, NORTH DAKOTA, SOUTH
CAROLINA, SOUTH DAKOTA,
TENNESSEE, UTAH, and WEST VIRGINIA,

11

Plaintiffs,

7
8
9

12

Civ. Action No. 18-cv-00167-O
DECLARATION OF WALKER
WILSON IN SUPPORT OF
INTERVENOR-DEFENDANTS'
OPPOSITION TO APPLICATION
FOR PRELIMINARY INJUNCTION

v.

13
14
15
16
17

UNITED STATES OF AMERICA, UNITED
STATES DEPARTMENT OF HEALTH AND
HUMAN SERVICES, ALEX AZAR, in his
Official Capacity as SECRETARY OF
HEALTH AND HUMAN SERVICES,
UNITED STATES INTERNAL REVENUE
SERVICE, and DAVID J. KAUTTER, in his
Official Capacity as Acting COMMISSIONER
OF INTERNAL REVENUE,

18
Defendants,
19
and,
20
21
22
23
24

CALIFORNIA, CONNECTICUT, DISTRICT
OF COLUMBIA, DELAWARE, HAWAII,
ILLINOIS, KENTUCKY,
MASSACHUSETTS, MINNESOTA by and
through its Department of Commerce, NEW
JERSEY, NEW YORK, NORTH CAROLINA,
OREGON, RHODE ISLAND, VERMONT,
VIRGINIA, and WASHINGTON,

25
Intervenor-Defendants.
26
27
28

00391

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

I, Walker Wilson, declare:
1.

I am the Assistant Secretary of Policy at the North Carolina Department of Health and

Human Services. I was previously the Director of the Health Policy Office at Blue Cross Blue
Shield North Carolina where I led the team analyzing federal regulations under the Affordable
Care Act.
2.

The NC Department of Health and Human Services manages the delivery of health-

and human-related services for all North Carolinians, especially our most vulnerable citizens –
children, elderly, disabled and low-income families. The Department is divided into 30 divisions
and offices. NCDHHS divisions and offices fall under four broad service areas – health, human
services, administrative, and support functions.
3.

This declaration is submitted in support of the Intervenor-States’ Opposition to the

application for a preliminary injunction. Based on my knowledge and experience, and in addition
to the loss of benefits and services and federal investments to support North Carolina’s health
care system, dismantling or suspending implementation of the Affordable Care Act would cause
severe harm to the state of North Carolina, to its residents, and to its economy. North Carolina
would experience harm and increased costs from the dismantling of the state’s administrative
structure and apparatus, created in compliance with, and to work in conjunction with, the
Affordable Care Act.

19
20

1.

21

The Affordable Care Act directs billions of dollars directly to North Carolina.
 Specifically, North Carolina has received $32,538,454 through the Public Health and

22

Prevention Fund.

23
24
25
26

2.

The Affordable Care Act (ACA) increased access to affordable coverage.
 In North Carolina, 8,919,000 people have health insurance of some form and the rate
of uninsured is 10.4 percent.

27
28

00392

2
3
4
5
6
7

• The Exchange is an important reform made by the ACA. In North Carolina, 519,803
total consumers selected an exchange plan during 2018 Open Enrollment.
3. The ACA resulted in better quality and more accessible, affordable health care for
consumers.
• The ACA created robust consumer protections to help ensure individuals can access
the health care system.
•

8
9

•

10

13

•

16

•

23
24
25
26
27
28

3,091,000 people in No11h Carolina, including 1,186,0 00 women and

coverage.
As many as 4,099,9 22 non-elderly North Carolinians have some type

pre-existing condition, like asthma or diabetes, under the health care

19

22

Carolinians.

health insurers can no longer deny coverage to anyone because of a

18

21

The health care law expanded mental health and substance use

of pre-existing health condition, including 539,092 children. Today,

17

20

preventive service coverage with no cost-sharing,

804,000 children, are free from worrying about lifetime limits on

14
15

North Carolinians with private health insurance gained

disorder benefits and federal parity protections for I ,897 ,489 North

11
12

2,266, 000

law.
• Through 2014 in North Carolina, people with Medicare have saved nearly
$471,772,9 59 on prescription drugs because of the Affordable Care Act. In 2014
alone, 174,51 7 individuals in North Carolina saved over $153,325, 756, or an
average of $879 per beneficiary.
• In addition, the ACA created additional consumer protections and rights such as:

•

Delivery system reforms to improve quality, including incentives to:
•

reduce hospital-acquired conditions and readmissions;

•

adopt electronic medical records;

00393

•

3

•

4

9
10

Allowing the creation of Accountable Care Organizations with

prevention and mitigation of chronic disease.

6

8

prioritize quality over quantity of care.

incentives for achieving quality benchmarks focused on the

5

7

coordinate care; and

•

2

I declare under penalty of perjury that the foregoing is true and correct and of my own
personal knowledge.
Executed on June 6, 2018, in Raleigh, North Carolina.

11
12
13
14

Walker Wilson
Assistant Secretary for Policy
NC Department of Health and Human Services

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00394

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

TEXAS, WISCO SIN, ALABAMA, ARKA SAS,
ARIZO A, FLORIDA, GEORGIA, INDIA A,
KA SAS, LOUISIA A, PAUL LeP AGE,
Governor of Maine, Governor Phil Bryant of the
State of M ISSISSIPPI, MISSOURI, EBRASKA,
1 ORTH DAKOTA, SOUTH CAROLINA, SOUTH
DAKOTA, TENNESSEE, UTAH, WEST
VIRGINIA, EILL HURLEY and JOHN ANTZ,
Plaintiffs,
Civil Action o. 4:18-cv-00167-0

V.

UNITED STATES OF AMERICA, UNITED
STATES DEPARTME T OF HEALTH A D
HUMA SERVICES, ALEX AZAR, in his
Official Capacity as SECRETARY OF HEALTH
A D HUMA SERVICES, UNITED STATES
INTERNAL REVENUE SERVICE, and DAVID
J. KAUTTER, in his Official Capacity as Acting
COMMISSI01 ER OF INTER AL REVE1 UE,
Defendants.

CALIFOR IA, CO
ECTICUT, DISTRICT OF
COLUMBIA, DELAWARE, HAWAll, ILLINOIS,
KE TUCKY, MASSACHUSETTS, MINNESOTA
by and through its Department of Commerce, EW
JERSEY, EW YORK, ORTH CAROLINA,
OREGO , RHODE ISLA D, VER.l\110 T,
VIRGINIA and WASHINGTO ,
Intervenors-Defendants.

DECLARATION OF DR. HOWARD A. ZUCKER IN SUPPORT OFINTERVENORSDEFENDANTS' OPPOSITION TO APPLICA TION FOR PRELIMINARY
INJUNCTION
I, Howard A. Zucker, declare:
1.

I am the Conunissioner of the ew York State Depruiment of Health (DOH). I make

Deel. of Dr. Howard A. Zucker ISO Opposition to Application for Preliminary Injunction (1 8-cv-167)

Pagel

00395

this declaration in my capacity as the Commissioner after consultation with DOH program staff
directing the initiatives detailed below. This declaration is submitted in support of the
Intervenor-States' Opposition to Plaintiffs' Motion for Preliminary Injunction. Based on my
knowledge and experience, dismantling or suspending implementation of the Affordable Care
Act would cause severe harm to the State of ew York, its residents, and its economy. In
addition to losing federal benefits, services and investments that support
system ,

ew York's healthcare

ew York would expe1ience harm and increased costs from the dismantling of the state' s

administrative structure and apparatus, created in compliance with, and to work in conjunction
with, the Affordable Care Act. An estimated 3 million

ew Yorkers cuITently enrolled in

Medicaid , the Basic Health Program or a Qualified Health Plan with federal tax subsidies wi ll
lose their li.ealth insurance coverage if the Affordable Care Act is suspended. In addition, the state
would incur enormous costs to undo years of work to implement the provisions of the ACA.
Electronic eligibility system s which are bu ilt to detennine eligibility based on a Modified
Adjusted Gross Income (MAGI) standard as required by the ACA, would need to be entirely
rebuilt or significantly modified to adjudicate eligibility using a series of complicated eligibility
categories and associ ated income deductions. Eligibility for millions of consumers would need to
be redetermined based on revised rules.

otices would need to be issued to each household

notifying them of the change in eligibility and offering them due process through submission of
an appeal. Given the millions of 1 ew Yorkers that would be impacted by such a suspension,
customer service call center volume would reach unprecedented levels and appeals of eligibility
changes, in particular, the loss of coverage or financial subsidies would cause the number of
app eals to increase commensurately. All tallied, the estimated cost to the state would reach
nearly $900 million including an estimated $33 0 million for information systems modifications

Deel. of Dr. Howard A Zucker ISO Opposition to Application for Preliminary Injunction (18-cv- 167)

Page 2

00396

plus an estimated $570 million for customer service to handle consumer calls and appeals which
is a manually intensive process.
2.

DOH' s mission is to protect, improve and promote the health, productivity and

wellbeing of all New Yorkers. DOH administers several programs that receive funding through
the Affordable Care Act (ACA) in order to achieve this mission.
3.

As described below, the ACA has significantly increased New York State's ability to

provide access to affordable comprehensive health insurance coverage and hea lth care services to
state residents. Rolling back the ACA's provisions puts the health of millions of ew Yorkers at
risk.
4.

The Affordable Care Act provides billions of dollars directly to New York to

improve the health of its residents.
•

Funding available tlu·ough the ACA has allowed Tew York to improve the health
of its residents.

ew York has received m ore than $17 billion in federal revenue

to expand affordable health coverage in the appropriate setting for

ew Yorkers,

including: $12.9 billion in federal revenue as a result of state adoption of the
Medicaid expans ion provisions of the ACA; $3.5 billion in federal funding to
support the Basic Health Program option of the ACA making health care coverage
more affordable for lower income

ew Yorkers; $26.9 million in fund ing through

the Public Health and Prevention Fund; $618 million in funding to support the
Balancing Incentive Program; $100 million in continuing grants from the Center
for Medicare and Medicaid Innovation for transfonning p1imary care practices to
advanced patient centered care; and nearly S185 million in funding to suppo1 the
i
Money Follows the Person (MFP) program.

Deel. of Dr. Howard A. Zucker ISO Opposition to Application for Preliminary Injunction (18-cv-167)

Page3

00397

The Affordable Care Act increased residents' access to affordable coverage.

5.
•

The ACA expanded health coverage for

ew Yorkers tlu·ough three key

mechanisms: (1) the Medicaid expansion for tl1ose individuals with the lowest
incomes; (2) the Basic Health Program (BHP), known as the "Essential Plan" in
ew York, for individuals with income slightly higher than Medicaid levels and
lawfully present inunigrants ineligible for Medicaid; and (3) federal subsidies to
lower the cost of coverage for individuals with moderate incomes.
•

Since implementing the ACA,

ew York has seen significant coverage gains.

Since 20 13, nearly 1 million people have gained coverage, and the rate of
uninsured in

ew York has declined from 10 to below 5 percent, its lowest level

ever. Coverage gains were seen among:
o

Young adults ages 19 to 25, whose uninsured rate fell from 17 percent to 8
percent;

o

African American/Black

ew Yorkers, whose uninsured rate fell from 12

percent to 7 percent;
o

Asian

ew Yorkers, whose uninsured rate fell from 14 percent to 8

percent;
o

Hispanic/Latino

ew Yorkers, whose uninsured rate fell from 20 percent

to 12 percent;
o

ew Yorkers who are full-time employees, whose uninsured rate fell from
12 percent to 7 percent; and

o

ew Yorkers with household incomes under 200 percent of FPL, whose
uninsured rate fell from 16 percent to 10 percent.

Deel. of Dr. Howard A. Zucker ISO Opposition to Application for Preliminary Injunction (1 8-cv- 167)

Page 4

00398

•

Medicaid is an important source of healthcare insurance coverage for low income
residents and the most vulnerable citizens. P1i or to the ACA, I ew York had been
a leader in making access to health care accessible to low-income residents
through Medicaid expansion permitted under Section 11 15 federal waivers.
onetheless, an estimated one million people who were eligible for Medicaid
remained uninsured, placing finan cial burden on the health car e system when
these individuals presented for services sicker and had no health plan to pay
providers, often hospitals.

•

As a result of implementing the ACA's Medicaid expansion, 30 1,72 1

ew

Yorkers became newly eligible for health care coverage. An additional 1,148,587
r ew Yorkers are covered by Medi caid with the state receiving an enhanced
federal Medical Assistance Percentage (FMAP) under the provisions of the ACA.
•

r ew York has also provided its residents with coverage under the Basic Health
Program, a program created by the ACA, and available to states to opt into
through submission of a "blueprint" to HHS. As of January 3 1, 201 8, BHP
provides 738,851 lower income

ew Yorkers with health coverage at a lower

monthly premium cost, no annual deductible and lower copayments for services
as compared to a silver tier Qualified Health Plan (QHP) with cost sharing
reductions. In late 20 15, modeling by The Urban Institute found that Essential
Plan, as compared to a QHP, reduces both premium and out-of-pocket costs for
these individuals by over $1, 100 a year.
•

P1ior to implementing the ACA,

ew York's individual insurance market was

often describ ed as being in a "death spiral." With individual monthly premiums

Deel. of Dr. Howard A. Zucker ISO Opposition to Application for Preliminary Injunction ( l 8-cv- 167)

Page 5

00399

of well over $ 1,000 a month, only the wealthiest individuals and/or people with
high medical service utilization were likely to purchase coverage. Enrollment in
the state's individual insurance markets had dropped to about 17,000.
•

Since the 20 14 implementation of the ACA,

ew York 's individual insurance

market has grown by 2000 percent to over 365,000. With this extraordinary
increase in membership, individual market premiums have fallen by over 50
percent as compared to premiums in 2013, making coverage more accessible for
ew Yorkers.

•

In addition to this dramatic reduction in premiums, the ACA allows nearly
150,000

ew Yorkers to receive federal tax credits to further reduce the cost of

coverage and cost sharing reductions to help reduce out of pocket costs such as
deductibles, coinsurance and copayrnents. In 201 8,

ew Yorkers are expected to

receive over $53 1 million in tax credits, b1inging the cumulative benefit of the
ACA tax credits received by New Yorkers to over $2.7 billion since 2014.

•

In 2016, 348,566 Medicare beneficiaiies in

ew York received discounts on the

Medicare Part D prescription drng coverage gap, known as the "donut hole,"
totaling more than $2.1 billion. On average, the beneficiai·y discount was $1,320.
6. The ACA has positive economic benefits on states.
•

Given that health cai·e comp1ises 18 percent of the national gross domestic
product, the federal assistai1ce states receive through the Affordable Cai·e Act has
a significant effect on the economy. A Commonwealth Fund analysis estimated
that the repeal of the Medicaid expansion and premium tax credits could lead to
the loss of 2.6 million jobs nationwide and $1.5 trillion gross state products over

Deel. of Dr. Howard A. Zucker ISO Opposition to Application for Preliminary Injunction (l 8-cv-167)

Page6

00400

five years. According to the report, in

ew York the repeal of the Medicaid

expansion and tax credits would result in 131 ,000 jobs lost, S 154 billion in lost
business output, and $90 in lost gross state product.
•

Since implementation of the ACA, the number of uninsured has been reduced
significantly, and

ew York hospitals have reported a dramatic decrease in self-

pay hospital utilization as patients have gained a usual source of payment.

1

ew

York State Institutional Cost Repo1is show a 23 percent reduction in self-pay
hospital emergency room visits, a 40 percent reduction in self-pay inpatient
services and a 17 percent reduction in self-pay outpatient visits. Having a u sual
somce of payment for patients reduces the risk of uncompensated care costs.
7. The ACA expanded programs in Medicaid to provide States with increased

opportunities to increase access to home and community based services.
•

Funding available to states through the ACA has allowed

ew York to increase

oppo1iunities for residents to access home and community based services through
several programs. In January 2007, the federal Centers of Medicare and Medicaid
Services (CMS) approved

ew York's application to participate in the Money

Follows the Person Rebalancing Demonstration Program (MFP). The MFP
Demonstration, authorized under the Deficit Reduction Act and extended by the
Affordable Care Act, involves transitioning eligible individuals from long-term
institutions like nursing facilities and intennediate care facilities into qualified
community-based settings.

Deel. of Dr. Howard A. Zucker ISO Opposition to Application for Preliminary Injunction ( l 8-cv-167)

Page 7

00401

•

The MFP has helped

ew York State to rebalance the Medicaid long-term care

systems by assisting people who want to leave institutional settings to receive
services in their communities of choice.
•

Initiatives like MFP have conh·ibuted to the rebalancing of ew York State's
long-term health care system, increasing the amount of Medicaid spending on
Home and Community Based Services in ew York State by 56.68% from 2008
through calendar year 2016. MFP provides enhanced federal match of home and
community based services provided to former residents of institutional settings
who successfully transition to community living. These additional federal dollars
supp01t rebalancing efforts in long te1m care systems in

ew York.

ew York

State MFP has utilized between $15-$20 million dollars for each of the last three
years to provide assistance to individuals in nursing homes and intermediate care
faci lities to facilitate their transition to living.
•

Community First Choice Option (CFCO) is an enhanced personal care benefit
established under the Affordable Care Act. States were authorized to amend their
state plan to cover enhanced personal attendant services and supports to address
activities of daily living (ADL), instrumental activities of daily living (IADL) and
health-related needs through hands-on assistance, supervision and/or
cueing. Other services and supports required under CFCO include assistance with
skill acquisition, maintenance or enhancement to facilitate an individual meeting
his or her own ADL, IADL or health-related needs. Also, voluntary training to
provide individuals with the skills to hire, train and dismiss personal attendants is
required. Optional CFCO services and supports include social transportation,

Deel. of Dr. Howard A. Zucker ISO Opposition to Application for Preliminary Injunction ( l 8-cv-167)

Page 8

00402

home and vehicle modifications and assistance with moving expenses for those
transitioning to community based care from institutional settings. CFCO services
are intended to be primarily self-directed either by the person receiving the
services and suppo1 or tlu·ough a designated representative. States who opt to
is
implement a CFCO state plan benefit are eligible for an additional 6% FMAP.
•

The Balancing Incentive Program (BIP) was authorized in the Affordable Care
Act in 2010. It provides grants to states that agree to develop and implement
three structural refonns believed to facilitate rebalancing of Medicaid
expenditures toward community-based rather than institutional long-tem1 services
and supp01is (LTSS). Grants are earned tlu·ough enhanced FMAP based on each
state's spending on certain HCBS LTSS spending during the BIP period between
the grant approval and September 30, 2015. While earnings ceased during the
initial BIP period, states were granted additional time to meet the requirements
and spend the funds generated during the BIP period. The final BIP period ended
September 30, 20 17.

•

1

ew York was one of 18 states that elected to participate in the BIP program. The

program 's overarching goal was to increase the percentage of state Medicaid
expenditures on community-based long-te1m services and supports over 50%
prior to the end of the BIP period.

ew York exceeded this goal early on and

now spends nearly 65% of its Medicaid LTSS expenditures in community-based
settings. From 20 14 through 2017, more than 57,000 individuals were served
tlu·ough BIP.

Deel. of Dr. Howard A. Zucker ISO Opposition to Application for Preliminary Injunction (18-cv-167)

Page 9

00403

8.

The ACA has alJowed States to test and implement reforms to healthcare

delivery systems that support State policy priorities of increasing efficiency and quality of
care.

•

The ACA created the Center for Medicare and Medicaid Innovation (CMMI)
which established the State ltmovation Models (SIM) initiative to encourage state
payment and delivery reforms. ew York is a SIM award state. With this $100
million award, DOH has implemented a primary care transfonnation initiative to
meet the goals of having improved access to high quality, cost-effective health
care for 80% of ew York residents, improving the health of our
population. With this initiative, over 2,500 practices will receive transformation
assistance to increase practice capability for access to appointments, patientcentri c coordinated care using health information to improve quality and
outcomes.
ew York State has two facilities participating in Accoun table Health

•

Cormnunities, a progran1 that focuses on addressing the gap between clinica l care
and community services addressing health-related social needs or social
determinants of health. Data from this program will inform models for addressing
social determinants in communities, essential to increasing access to pri mary car·e
and reducing unnecessary hospital utilization.
9.

The ACA created a dedicated fundin g stream to improve the nation 's public

health system.

•

The Prevention and Public Health Fund was established under Section 4002 of the
ACA. Also known as the Prevention Fund or PPHF, it is the nation's first

Deel. of Dr. Howard A. Zucker ISO Opposition to Application for Preliminary Injunction (18-cv-167)

Page 10

00404

mandatory funding stream dedicated to improving our nation's public health
system.
•

PPHF funds that have been allocated to the Centers for Disease Control and
Prevention (CDC) have enhanced state capacity to provide immunizations against
infectious diseases; increase detection and prevention efforts related to infectious
disease tlu·eats in cluding pandemic influenza; have suppo1ied the Preventive
Health & Heal th Services Block Grant that addresses unique public health issues
on state levels including prevention of lead poisoning, fall prevention, rape crisis
and sexual violence prevention, tobacco use prevention, hunger prevention, and
enhanced water quality; and has supp01ied state funding tlu:ough the
Epidemiology and Laboratory Capacity (ELC) and Emerging Infections Program
(EIP) grants that have built capability critical during recent outbreaks including
those related to multi-state foodbome illness, influenza, and fungal meningitis,
and provides a foundation for the antibiotic resistance and healthcare associated
infections program s that is estimated to ave1i billions of dollars in healthcare
spending.

•

ew York State cunently receives funding from the PPHF to conduct chronic
disease prevention programs addressing diabetes, obesity, cardiovascul ar disease
tobacco use, and artlmtis. Clu·onic diseases are among the leading causes of death
and disability in

ew York State. They account for approximately 60% of all

deaths in the state and affect the quality of life for millions of r ew
Yorkers. However, clu:onic diseases are also among the most preventable, if there
is adequate suppo1i for effective prevention programs and policies.

Deel. of Dr. Howard A. Zucker ISO Opposition to Application for Preliminary Injunction ( 18-cv-167)

Page 11

00405

•

In addition to addressing chronic diseases, without continued PPHF funding,
grants that support corrununicable disease prevention, detection, and control
would be severely impacted. Cun-ent grant funding through the CDC supports
communicable disease surveillance and outbreak control in communities,
healthcare settings (hospitals and nursing homes), tuberculosis prevention and
control, and combating vaccine preventable diseases. CDC funds

ew York

annually through the Emerging Infections Program grant, the Epidemiology and
Laboratory Capacity grant, the Immunization and Vaccines for Children
Cooperative Agreement funding, and Preventive Health & Health Services Block
grant. A portion of the PPHF funding is directed to increase and improve the
critical public health work conducted at the local level which extends the reach
and impact of the state capacity.

The ACA resulted in better quality and more accessible, affordable healthcare

10.

for consumers.
•

Compared to individuals in states that have chosen not to implement key coverage
mechanisms in the ACA, individuals who live in states that are implementing the
law have improved access to care. According to a recent Corrunonwealth Fund
Survey1 :

o

ationally, in 2012 the share of individuals who repo1ied they could not
access needed care due to cost was 43 percent. This share dropped to 34

1

The Conunonwealth Fund, Issue Brief, March 20 17, Insurance Coverage, Access to
Care, and Medical Debt Since the ACA: A Look at California, Florida, New York and Texas
http://www.commonwealthfund.org/-/media/files/pub1ications/issuebrie£'2017 /mar/ 1935 gunja coverage access four largest states ib.pdf.

Deel. of Dr. Howard A. Zucker ISO Opposition to Application fo r Preliminary Injunction (18-cv- 167)

Page 12

00406

percent in 2016 nationally, and in ew York the percentage dropped to 29
percent in 2016. In comparable large states like Florida and Texas, the share
of individuals who reported they could not access needed care in 2016 was
far higher: 41 percent and 45 percent, respectively.

o

ationally, in 201 2 the share of individuals who reported having trouble
paying their medical bills was 41 percent. This share dropped to 37 percent
in 2016, and in New York, the number dropped to 28 percent. In
comparison, the share of individuals rep01ting having trouble paying
medical bills was 41 percent and 44 percent in Florid a and Texas,
respectively.

11.

ew York will lose all of these benefits under the Affordable Car·e Act if the

Plaintiffs prevail on their Motion for Preliminar·y Injunction.

Deel. of Dr. Howard A. Zucker ISO Opposition to Application for Preliminary Injunction (18-cv-167)

Page 13

00407

00408

1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

2
3
4
5
6
7

TEXAS, WISCONSIN, ALABAMA, ARKANSAS,
ARIZONA, FLORIDA, GEORGIA, INDIANA,
KANSAS, LOUISIANA, PAUL LePAGE,
Governor of Maine, Governor Phil Bryant of the
State of MISSISSIPPI, MISSOURI, NEBRASKA,
NORTH DAKOTA, SOUTH CAROLINA, SOUTH
DAKOTA, TENNESSEE, UTAH, WEST
VIRGINIA, NEILL HURLEY and JOHN NANTZ,

8
9
v.

Plaintiffs,
Civil Action No. 4:18-cv-00167-O

10

14

UNITED STATES OF AMERICA, UNITED
STATES DEPARTMENT OF HEALTH AND
HUMAN SERVICES, ALEX AZAR, in his Official
Capacity as SECRETARY OF HEALTH AND
HUMAN SERVICES, UNITED STATES
INTERNAL REVENUE SERVICE, and DAVID J.
KAUTTER, in his Official Capacity as Acting
COMMISSIONER OF INTERNAL REVENUE,

15

Defendants.

11
12
13

16

20

CALIFORNIA, CONNECTICUT, DISTRICT OF
COLUMBIA, DELAWARE, HAWAII, ILLINOIS,
KENTUCKY, MASSACHUSETTS, MINNESOTA
by and through its Department of Commerce, NEW
JERSEY, NEW YORK, NORTH CAROLINA,
OREGON, RHODE ISLAND, VERMONT,
VIRGINIA and WASHINGTON,

21

Intervenors-Defendants.

17
18
19

22
23

DECLARATION OF PATRICK M. ALLEN IN SUPPORT OF INTERVENORSDEFENDANTS’ OPPOSITION TO APPLICATION FOR PRELIMINARY INJUNCTION

24
25
26
27
28
1
Decl. of Patrick M. Allen in Support of Intervenors-Defendants Opposition to Application for Preliminary Injunction
(4:18-cv-00167-O)

00409

1

I, Patrick M. Allen, declare:

2

1.

I am the Director of the Oregon Health Authority. For several years I was the

3

Director of the Oregon Department of Consumer and Business Services. In both roles, I have

4

overseen Oregon’s health insurance market and exchange. The details below were provided to

5

me by agency personnel who are responsible for collecting and analyzing the described data,

6

upon whom I regularly rely in performing my duties.

7

2.

This declaration is submitted in support of the Intervenor-States' Opposition to

8

application for a preliminary injunction. Based on my knowledge and experience, dismantling

9

the Affordable Care Act would cause severe harm to the state of Oregon, to its residents and to its

10

economy. In addition to loss of benefits and services and federal investments to support state’s

11

healthcare system, dismantling or suspending implementation of the Affordable Care Act would

12

cause severe harm to the state of Oregon, to its residents and to its economy. As explained in

13

detail below, Oregon would experience harm and increased costs from the dismantling of the

14

state’s administrative structure and apparatus, created in compliance with, and to work in

15

conjunction with, the Affordable Care Act should the injunction be granted.

16

3.

The Oregon Health Authority is at the forefront of lowering and containing costs,

17

improving quality and increasing access to health care in order to improve the lifelong health of

18

Oregonians. OHA is overseen by the nine-member citizen Oregon Health Policy Board working

19

towards comprehensive health reform in our state.

20

4.

The Affordable Care Act directs billions of dollars directly to Oregon.

21

•

Specifically, Oregon has received $10.4 billion via Medicaid expansion; $4.1

22

billion through the Community First Choice Option; of which approximately $359 million was

23

from enhanced federal match; $38.9 million through the Public Health and Prevention Fund; and

24

$41.5 million in grants from the Center for Medicare and Medicaid Innovation. Oregon also

25

expects to receive an additional $54,482,113 in federal pass-through funding in 2018 through the

26

state’s approved Section 1332 State Innovation Wavier.

27
28
2
Decl. of Patrick M. Allen in Support of Intervenors-Defendants Opposition to Application for Preliminary Injunction
(4:18-cv-00167-O)

00410

1

5.

The Affordable Care Act (ACA) increased access to affordable coverage.
•

2

Overall the number of individuals with insurance has increased. In

3

Oregon, in 2017, 3,747,500 people had health insurance coverage (93.8%). In 2013 before

4

ACA, 3,236,200 people in Oregon had health insurance coverage (85.5%).

5

Approximately 500,000 people gained health coverage in Oregon between 2013 and 2017.

6

The rate of uninsured in the state is now 6.2%. This is a decrease from 2013 when 14.5%

7

of Oregonians were uninsured.
•

8
9

The ACA expanded coverage through two key mechanism: Medicaid

expansion for those individuals with the lowest incomes, and federal health subsidies to

10

purchase coverage in new health insurance exchanges for those individuals with moderate

11

incomes.

12

•

Medicaid is an important source of healthcare insurance coverage and has

13

resulted in significant coverage gains and reduction in the uninsured rate, both among the

14

low-income population and within other vulnerable populations.
•

15

As a result of the Medicaid expansion, there were 520,432 persons on the

16

Oregon Health Plan for one or more months in 2017, and the state has experienced a large

17

reduction in the uninsured rate.
•

18

The Exchange is an important reform made by the ACA. As of January 1,

19

2018, 107,925 Oregonians were enrolled in federally subsidized exchange coverage as a

20

result of the law.

21

6.

•

22
23

The ACA has positive economic benefits on states.
Studies have shown that states expanding Medicaid under the ACA have

realized budget savings, revenue gains, and overall economic growth.
•

24

Statewide uncompensated care fell by $652.3 million from its high in 2013

25

of $1.29 billion, of down 51 percentage points, to its current level of $633.1 million as of

26

2017.

27
28
3
Decl. of Patrick M. Allen in Support of Intervenors-Defendants Opposition to Application for Preliminary Injunction
(4:18-cv-00167-O)

00411

•

1

Following implementation of the ACA, Oregon added 23,300 health care

2

jobs. On average, the state’s rate of job growth has outpaced rates of job gains in states

3

that did not expand Medicaid coverage.
•

4

In addition, Oregon has added approximately 20,000 home care workers

5

and personal support worker jobs since the passage of ACA to provide in-home long term

6

services and supports. These positions are paid above minimum wage and have access to

7

benefits like health care coverage and paid time off.

8

7.

9

The ACA expanded programs in Medicaid to provide States with increased

opportunities to increase access to home and community based services.
•

10

The Community First Choice Option (CFCO) removed enrollment caps

11

and crisis-based eligibility criteria for children to receive Home and Community Based

12

Services (HCBS). Many families with children with intellectual and developmental

13

disabilities are now receiving needed supports without having to reach crisis. Since

14

implementation of CFCO (July 1, 2013 – June 30, 2017) the number of children receiving

15

services has increased by over 500%.
•

16
17

Since implementation of CFCO (July 1, 2013 – June 30, 2017), the number

of older adults and people with disabilities served through the program increased by 36%.
•

18
19

Availability of in-home services and supports helps prevent individuals

from moving to residential services or other more restrictive settings.
•

20

CFCO has provided a robust set of tools such as environmental

21

modifications and assistive technology that allow individuals to remain independent in

22

their own homes.

23

8.

The ACA has allowed States to test and implement reforms to healthcare

24

delivery systems that support State policy priorities of increasing efficiency and quality of

25

care.

26

•

The State Innovation Model (SIM) grant supported the acceleration of

27

health transformation in Oregon and fueled the spread of the coordinated care model from

28

the Medicaid population to other payers and populations. Oregon’s CMS waiver allows us
4
Decl. of Patrick M. Allen in Support of Intervenors-Defendants Opposition to Application for Preliminary Injunction
(4:18-cv-00167-O)

00412

1

to implement the coordinated care model with the Medicaid population, while SIM

2

funding allows the work to go further, faster and touch more Oregonians. SIM also

3

provided funding for a comprehensive evaluation to help other states learn what key steps

4

and tools work to transform the delivery system and achieve the triple aim: better health,

5

better car, and lower costs. Areas of SIM funded work included:

6

o

Patient-Centered Primary Care Home (PCPCH) program.

7

Evaluation results confirm the success of the PCPCH program, the foundation of

8

the efforts of Oregon’s health system transformation. Key evaluation findings

9

include:


10

Clinics participating in the program cut health care costs by

11

4.2 percent, or approximately $41 per person per quarter. Effects increased

12

significantly the longer clinics were designated as a PCPCH, generally

13

doubling from the first to third year of recognition.


14
15

(from 2012-2014).


16
17

Saved an estimated $240 million over its first three years

For every $1 increase in primary care spending under the

program, there was $13 in savings in downstream costs.


18

PCPCH clinics have accomplished significant

19

transformation, resulting in greater effectiveness and efficiency, within

20

primary care and the larger health care system.

21

o

22

Exchange (HIE)

23

o

OHA Transformation Center

24

o

Tobacco Cessation

25

o

Colorectal Cancer Screenings

26

o

Primary Care Payment Reform

27

o

Value Based Payments

28

o

Behavioral Health Integration

Health information technology (HIT) and Health Information

5
Decl. of Patrick M. Allen in Support of Intervenors-Defendants Opposition to Application for Preliminary Injunction
(4:18-cv-00167-O)

00413

1

o

Project ECHO

2

o

Oral Health Integration

3

o

Population Health

4

o

Regional Health Equity Coalitions

5

o

Health Equity Leadership

6

o

Health Care Interpreter Learning Collaborative

7

o

Long Term Care

8

o

Medicare-Medicaid Dual Eligibility

9

o

Early Learning

10

o

Health Evidence Review Commission

11

o

SIM Self-Evaluation

12
13
14
15
16

9.

The ACA resulted in better quality and more accessible, affordable

healthcare for consumers.
•

The ACA created robust consumer protections to help ensure individuals

can access the healthcare system.
•

In 2017, 3,747,500 people in Oregon had health insurance coverage

17

(93.8%). In 2013 before ACA, 3,236,200 people in Oregon had health insurance coverage

18

(85.5%). Approximately 500,000 people gained health coverage in Oregon between 2013

19

and 2017.

20

•

The ACA has led to improved access to care. In 2017, 93.4% of

21

Oregonians reported having a usual place of care, a 7.2 percentage point increase since

22

2013. For Oregonians enrolled in the state’s Medicaid program, that rate is even higher,

23

95.2 in 2017 reported having a usual place of care.

24

•

The ACA has led to improved financial security for 694,000 individuals

25

who previously experienced trouble paying medical bills. In 2017, 8.4% of Oregonians

26

(335,000 people) had trouble paying medical bills, down from 28.4% of Oregonians

27

(1,029,000) in 2013. This represents a 20 percentage point decrease in Oregonians who

28

had trouble paying medical bills.
6
Decl. of Patrick M. Allen in Support of Intervenors-Defendants Opposition to Application for Preliminary Injunction
(4:18-cv-00167-O)

00414

1

•

2

such as:

3

•

In addition, the ACA created additional consumer protections and rights

In 2017, 68.0% of Oregonians had dental coverage (2,715,200 people),

4

compared to only 64.2% in 2013. This represents an increase 3.8 percentage points or

5

560,600 Oregonians gaining access to dental coverage since implementation of the ACA.
•

6

In 2017, 16.7% of Oregonians went to the ER in the past 12 months,

7

compared to 22.5% of Oregonians in 2013. This represents a decrease of 5.8 percentage

8

points or 560,600 Oregonians gaining access to dental coverage since implementation of

9

the ACA.

10
11
12
13
14

10.

All of the foregoing benefits of the Affordable Care Act would be removed if the

Plaintiffs’ motion for preliminary injunction were granted.
I declare under penalty of perjury that the foregoing is true and correct and of my own
personal knowledge.
Salem
Executed on June 6, 2018 in _______________, Oregon.

15
________ __________________________
Patrick M. Allen
Director
Oregon Health Authority

16
17
18
19
20
21
22
23
24
25
26
27
28
7

Decl. of Patrick M. Allen in Support of Intervenors-Defendants Opposition to Application for Preliminary Injunction
(4:18-cv-00167-O)

00415

2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF TEXAS

10

FORT WORTH DIVISION

11
12
13
14
15
16
17
18

TEXAS, WISCONSIN, ALABAMA,
ARKANSAS, ARIZONA, FLORIDA,
GEORGIA, INDIANA, KANSAS,
LOUISIANA, PAUL LePAGE, Governor of
Maine, MISSISSIPPI, by and through
Governor Phil Bryant, MISSOURI,
NEBRASKA, NORTH DAKOTA, SOUTH
CAROLINA, SOUTH DAKOTA,
TENNESSEE, UTAH, and WEST
VIRGINIA,

v.

20

22
23
24
25
26
27
28

DECLARATION OF ZACHARY W.
SHERMAN IN SUPPORT OF
INTERVENOR-DEFENDANTS'
OPPOSITION TO APPLICATION
FOR PRELIMINARY INJUNCTION

Plaintiffs,

19

21

Civ. Action No. 18-cv-00167-0

UNITED ST ATES OF AMERICA,
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
ALEX AZAR, in his Official Capacity as
SECRETARY OF HEALTH AND HUMAN
SERVICES, UNITED STATES INTERNAL
REVENUE SERVICE, and DAVID J.
KAUTTER, in his Official Capacity as
Acting COMMISSIONER OF INTERNAL
REVENUE,
Defendants,
and,

00416

2

CALIFORNIA, et al.

3

Intervenor-Defendants.

4
5
6

I, Zachary W. Sherman, declare:
1. I am the Director of HealthSource RI, Rhode Island's state-based health insurance

7

exchange. I have been Director for over two years, and have served in multiple capacities

8

at HealthSource RI since shortly after the Affordable Care Act passed in 20 l 0.

9

2. HealthSource RI was created in 2011 and has been operational since 2013, connecting

10

Rhode Islanders with affordable plans and participating in many aspects of federal health

11

refom1.

12

3. Based on my knowledge and experience, dismantling the Affordable Care Act would cause

13

significant harm to the state of Rhode Island, its residents and its economy. The

14

withdrawal of the federal investments that have been made under this law to stabilize,

15

strengthen and improve our state's health care system would be devastating. Beyond that,

16

our residents would Jose critical benefits and services they have come to rely upon and that

17

have helped our state in reducing its rate of uninsured to the lowest in history. Dismantling

18

the ACA and the technical infrastructure that has been developed to implement it in Rhode

19

Island would come at a substantial cost to Rhode Islanders. In addition to launching a

20

state-based marketplace under the ACA, Rhode Island was able to make significant

21

technological improvements, modernizing the way providers, consumers and payers

22

interface with many state and federal programs. Disentangling these advancements would

23

cost many millions of dollars. Furthermore, the administrative and operational costs

24

associated with transitioning our residents off ACA programs would be significant. The

25

work that would be required to re-engineer program eligibility policies, system and

26

business process rules, regulations, notices, and to conduct the subsequent outreach and

27

administration of appeals alone would require considerable technological and operational

28

00417

support. This would likely cost the state millions of additional unbudgeted dollars.
2

Moreover, it would be exponentially more costly for the state to maintain its existing

3

health coverage gains and the level of benefits and services Rhode Islanders currently

4

have access to under the ACA. The impact of losing the foregoing funding and

5

subsequent progress made in Rhode Island would have resounding and damaging effects

6

in this state for years to come.

7
8

4. The Affordable Care Act increased access to affordable coverage.
• Overall, the number of individuals with insurance in Rhode Island has increased.

9

According to the Rhode Island Health Insurance Survey (HIS), a comprehensive

10

phone-based household survey, in Rhode Island, 999,145 people have coverage,

ll

bringing the rate of uninsured in this state down to just 4.2%. This marks a

12

significant improvement from 2012, when the rate of uninsured was 11%, and is

13

representative of 73,000 more Rhode Islanders obtaining coverage. One out of every

14

ten Rhode Islanders have health insurance through the ACA.

15

• The ACA expanded coverage through two key mechanism: Medicaid expansion for

16

those individuals with the lowest incomes, and federal subsidies to purchase

17

coverage in new health insurance Exchanges for those individuals with moderate

18

incomes.

19

• Medicaid is an important source of healthcare insurance coverage and has resulted in

20

significant coverage gains and a reduction in the uninsured rate, both among the

21

low-income population and among other vulnerable populations. As a result of

22

Medicaid expansion in Rhode Island, as of February 2018, 77,846 people have

23

coverage.

24

• The Exchange is an important reform enacted by the ACA. In Rhode Island, 25,159

25

people enrolled in coverage with federal affordability subsidies during this most

26

recent Open Enrollment Period. In other words, 82% of all enrollees in commercial

27

plans through the Exchange are receiving federal assistance towards the purchase of

28

their health coverage.

00418

5. The ACA expanded programs in Medicaid to provide States with increased
2

opportunities to increase access to home and community based services.

3

• Through the Medicaid Money Follows the Person Demonstration, Rhode Island

4

receives federal financial assistance to move elderly nursing home residents out of

5

nursing homes and back into their own homes or into the homes of their loved ones.

6

This grant has allowed the state to expand the program to assist individuals in

7

managing their care outside of a nursing home. Over the grant period, the state has

8

seen a shift in Long Term Services and Supports spending for the state. The percent

9

of the state Medicaid expenditures for home and community based services increased

10

over the period of the grant, with a corresponding decline in the percent of

11

expenditures for institutional care.

12
13
14
15
16

6. The ACA resulted in better quality and more a<;cessible, affordable healthcare for
consumers.
• The ACA created robust consumer protections to help ensure individuals can access
the healthcare system.
•

As of April 2017, 88,827 Rhode Islanders were enrolled in ACA

17

compliant Individual and Small Group market plans sold by a Rhode

18

Island carrier. It is because of the ACA that these enrollees have

19

access to coverage for dependents through a parents' plan until the

20

dependent turns twenty-six, access to certain mandated preventive

21

services including access to birth control, cancer screenings, and

22

immunizations for children, and access to essential health benefits

23

such as substance use disorder treatment and maternity and newborn

24

care.

25

• The ACA has led to improved access to care. For example, in 2016, 4.8% of those

26

surveyed through the HIS in RI said they'd skipped or took less of a medication in

27

order to make it last longer as compared to 6.1 % in 2012. In that same time period,

28
4

00419

the percentage of respondents in the same survey who said that they did not get a
2

prescription filled because they could not afford it dropped from 5.5% to 4.5%.

3

• The ACA has led to improved financial security. For example, in 2016, results from

4

the HIS showed that 19.1% of respondents said they had_experienced trouble paying

5

medical bills at some time during the past year, down from 24.1 % in 2012.

6

• The ACA also created important additional consumer protections and rights such as:
•

7
8

A prohibition on higher premiums for those with pre-existing
conditions;

•

9
10

A prohibition on annual and lifetime limits for covered benefits and
discrimination in benefit design;

11

•

Guaranteed issue and renewability of health coverage; and

12

•

Transparency of plan benefits, providers, and drug coverage.

13
14

7. All of the foregoing benefits of the Affordable Care Act would be removed if the
Plaintiffs' motion for preliminary injunction were granted.

15
16
17
18

I declare under penalty of perjury that the foregoing is true and correct and of my own
personal knowledge.
Executed on June 6, 2018 in East Providence, RI.

19
20
�
anik-----irector
HealthSource RI

21
22
23
24
25
26
27
28
5

00420

IN THE UNITED ST ATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

TEXAS, WISCONSIN, ALABAMA,
ARKANSAS, ARIZONA, FLORIDA, GEORGIA,
INDIANA, KANSAS, LOUISIANA, PAUL
LePAGE, Governor of Maine, Governor Phil
Bryant of the State of MISSISSIPPI, MISSOURI,
NEBRASKA, NORTH DAKOTA, SOUTH
CAROLINA, SOUTH DAKOTA, TENNESSEE,
UTAH, WEST VIRGINIA, NEILL HURLEY and
JOHN NANTZ,
Plaintiffs,

Civil Action No. 4:18-cv-00167-0

V.

UNITED STATES OF AMERICA, UNITED
STA TES DEPARTMENT OF HEAL TH AND
HUMAN SER VICES, ALEX AZAR, in his
Official Capacity as SECRETARY OF HEALTH
AND HUMAN SER VICES, UNITED ST ATES
fNTERNAL REVENUE SERVICE, and DA YID
J. KA UTTER, in his Official Capacity as Acting
COMMISSIONER OF INTERNAL REVENUE,
Defendants.

CALIFORNIA, CONNECTICUT, DISTRICT OF
COLUMBIA, DELAWARE, HAW AIi,
ILLINOIS, KENTUCKY , MASSACHUSETTS,
MINNESOTA by and through its Department of
Commerce, NEW JERSEY, NEW YORK,
NORTH CAROLINA, OREGON, RHODE
ISLAND, VERMONT, VIRGINIA and
WASHINGTON,
Intervenors-Defendants.

DECLARATION OF JOHN JAY SHANNON IN SUPPORT OF INTERVENORSDEFENDANTS' OPPOSITION TO APPLICATION FOR PRELIMINARY
INJUNCTION

I, John Jay Shannon, declare:

Deel. of Shannon ISO lntervenors-Defendants' Opposition to Preliminary Injunction ( I 8-cv- 167)

Page I

00421

1.

This declaration is submitted in support of the Intervenors-Defendants' Opposition to

the Application for Preliminary Injunction. Based on my knowledge and experience,
dismantling the Affordable Care Act would cause hann to the State of Illinois, to its residents
and to its economy. In addition to loss of benefits and services and federal investments to
support Illinois' healthcare system, including Cook County Health & Hospitals System,
dismantling or suspending implementation of the Affordable Care Act would cause severe hann
to the State of Illinois, to its residents and to its economy. Illinois would experience hann and
increased costs from the dismantling of the state' s administrative structure and apparatus, created
in compliance with, and to work in conjunction with, the Affordable Care Act.
2.

I am a board certified physician and the Chief Executive Officer of the Cook County

Health & Hospitals System (CCHHS).
3.

CCHHS is one of the largest public health care systems in the United States,

providing a range of health care services regardless of a patient's ability to pay. CCHHS serves
approximately 300,000 unique patients annually through more than 1 million outpatient visits
and more than 20,000 inpatient hospitals admissions.
4.

CCHHS is comprised of two hospitals (John H. Stroger, Jr. Hospital and Provident

Hospital), a robust network of more than a dozen community health centers, the Ruth M.
Rothstein CORE Center, the Cook County Department of Public Health, Cennak Health
Services, which provides health care to individuals at the Cook County Jail and the Juvenile
Temporary Detention Center, and CountyCare, a Medicaid managed care health plan.
5.

The enactment of the Patient Protection and Affordable Care Act, Pub. L. No. I 11-

148, and the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152,
(collectively the " Affordable Care Act") has had a positive effect on CCHHS ' ability to serve the
residents of Cook County. In particular, the Affordable Care Act offered states the option to
expand eligibility for their state Medicaid plan to individuals with incomes at or below 133% of
the federal pove1iy level with heightened matching of federal funds . 42 U.S.C. §
l 396a(a)( 1O)(A)(i)(VIII). Illinois enacted a law to expand the eligibility for its state Medicaid
Deel. of Shannon ISO lntervenors-Defend ants' Opposition to Preliminary Injunction ( l 8-cv-167)

Page 2

00422

plan to individuals aged 19 or older but younger than 65 with incomes at or below 133% of the
federal poverty level. 305 ILCS 5/5-2(18). These newly eligible individuals are often known as
"ACA adults." The expansion of Medicaid to ACA adults in Illinois created access to coverage
for many existing CCHHS patients who were previously uninsured.
6.

The CountyCare Medicaid managed care health plan launched in 2012 as a

demonstration project through a federal Centers for Medicare and Medicaid Services (CMS)
I 115 Waiver granted to the state of Illinois to early-enroll eligible low-income Cook County
ACA adults into a Medicaid managed care program. In 2014, CountyCare was awarded a
contract with the Illinois Department of Healthcare and Family Services to operate as a Managed
Care Community Network health plan to provide coverage for Cook County Medicaid eligible
beneficiaries. CountyCare was also awarded a contract from the State of Illinois' Department of
Healthcare and Family Services to provide services under its Medicaid Managed Care Program
beginning January I, 2018. As part of that program, encouraged by the Affordable Care Act,
CountyCare receives a capitated per-member per-month payment from the State of Illinois to pay
for services rendered to Illinois Medicaid recipients in its network. CountyCare provides
coverage to more than 320,000 members, of which 54,000 are ACA adults who are only eligible
for Medicaid because Illinois expanded eligibility pursuant to the Affordable Care Act. In
FY2015, CountyCare spent approximately $300 million on claims for ACA adults. Many of
CountyCare's members are long-standing CCHHS patients who have previously received care
regardless of their ability to pay. Without coverage through Illinois' Medicaid expansion, many
of these individuals would be uninsured and may require crucial medical care from CC HHS
without being able to provide insurance or other coverage. Unfortunately, many of these patients
may decline to seek necessary medical care if they were to lose their Medicaid coverage.
7.

The Medicaid expansion has reduced the number of CCHHS patients who receive

services without insurance or other coverage. In FY 2012, 63% of CCHHS ' patients were
uninsured. By FY 20 I 7, the percentage of patients without insurance or other coverage had
dropped to 39%. This decrease is largely attributed to the number of ACA adults who were
Deel. of Shannon ISO Intervenors-Defendants ' Opposition to Preliminary Injunction (18-cv-167)

Page 3

00423

newly eligible for Medicaid because of Illinois' Medicaid expansion pursuant to the Affordable
Care Act.
8.

The decrease in the number of patients who are uninsured has had a noticeable effect

on CCHHS' costs for uncompensated care. In FY 2013 , CCHHS provided $585.8 million in
uncompensated care. Newly eligible ACA adults were entitled to enroll in Medicaid beginning
January 1, 2014. 305 ILCS 5/5-2(18). As a result, the amount of uncompensated care that
CCHHS provided in FY 2014 dropped to $313.6 million. Although that number has increased in
recent years, CCHHS ' costs for uncompensated care have stayed below the costs prior to
Illinois' Medicaid expansion. This drop in uncompensated care costs has enabled CCHHS to
improve services and care for Illinois patients and engage in a multi-year strategy to address
behavioral health services pursuant to a pending Medicaid Section 1115 Waiver Proposal
submitted by the State of Illinois. As a result of ACA funding, CCHHS has also reduced the
amount of local tax dollars that are required to support its operations from $48 1 million in 2009
to $103.5 million in FY2018 .
9.

Pursuant to Illinois law, if federal matching funds to Illinois for the Medicaid

expansion population falls below 90%, coverage for persons eligible for Medicaid through the
Medicaid expansion shall cease no later than the end of the third month following the reduction
of federal funding below 90%. 305 ILCS 5/5-2(18).
10.

If persons enrolled in Medicaid through the Medicaid expansion lose coverage,

Illinois hospitals, including CCHHS and other public hospitals in Illinois, will experience an
increase in uncompensated care that they must provide to their communities. CCHHS estimates
that it could lose $ 100-200 million in reimbursements from CountyCare and $100-250 million in
reimbursements from other Medicaid managed care organizations for services provided if ACA
adults lose their Medicaid coverage. CCHHS is also likely to experience a migration of patients
from other systems without insurance or other coverage because of CCHHS' policy to provide
care to all patients regardless of their ability to pay. CC HHS estimates that it could experience at
least $100 million annually in increased uncompensated care costs, with a potential additional
Deel. of Shannon ISO Intervenors-Defendants' Opposition to Preliminary Injunction (I 8-cv- 167)

Page 4

00424

$500 million in additional expenses, if the Affordable Care Act and the Medicaid expansion
were repealed.
I I.

Should the ACA be enjoined from operation, CCHHS and other public hospitals will

face increased costs from uncompensated care and will suffer additional strains on their ability to
deliver high-quality healthcare services to our patients.
12.

All of the foregoing benefits of the Affordable Care Act would be removed if the

Plaintiffs' motion for preliminary injunction were granted .

_ I declare under penalty of perjury that the foregoing is true and correct and of my own
personal knowledge.
Executed on June 6, 2018, in Chicago, Illinois.

Jo
on, M.D.
Chi
xe ·ve Officer
Cook County Health & Hospitals System

Deel. of Shannon ISO Intervenors-Defendants' Opposition to Preliminary Injunction ( l 8-cv- 167)

Page 5

00425

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

TEXAS, WISCONSIN, ALABAMA, ARKANSAS,
ARIZONA, FLORIDA, GEORGIA, INDIANA, KANSAS,
LOUISIANA, PAUL LePAGE, Governor of Maine,
Governor Phil Bryant of the State of MISSISSIPPI,
MISSOURI, NEBRASKA, NORTH DAKOTA, SOUTH
CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH,
WEST VIRGINIA, NEILL HURLEY and JOHN NANTZ,
Plaintiffs,

v.

Civil Action No. 4:18-cv-00167-0

UNITED STATES OF AMERICA, UNITED STATES
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
ALEX AZAR, in his Official Capacity as SECRETARY
OF HEALTH AND HUMAN SERVICES, UNITED
STATES INTERNAL REVENUE SERVICE, and DAVID
J. KAUTIER, in his Official Capacity as Acting
COMMISSIONER OF INTERNAL REVENUE,

DECLARATION OF KRISTI M. BOHN

Defendants.

CALIFORNIA, CONNECTICUT, DISTRICT OF
COLUMBIA, DELAWARE, HAWAII, ILLINOIS,
KENTUCKY, MASSACHUSETIS, MINNESOTA by and
through its Department of Commerce, NEW
JERSEY, NEW YORK, NORTH CAROLINA, OREGON,
RHODE ISLAND, VERMONT, VIRGINIA and
WASHINGTON,

lntervenors-Defendants.

DECLARATION OF KRISTI M. BOHN, CIDEF HEALTH ACTUARY FOR THE
MINNESOTA DEPARTMENT OF COMMERCE IN OPPOSITION OF MOTION FOR
PRELIMINARY INJUNCTION

00426

I, KRISTI M. BOHN, declare:

1. I am the Chief Health Actuary for the Minnesota Department of Commerce. I have been
working in the actuarial field for 23 years and my credentials are as follows: Fellow of
the Society of Actuaries, a Member of the Academy of Actuaries, and an Enrolled
Actuary of the Joint Board under ERISA. I have been working as the Chief Health Actuary
at Commerce for over four years, and as such, am familiar with the facts and
circumstances surrounding the Affordable Care Act (ACA) and its affect in the state of
Minnesota.
2. In this affidavit, I refer to the action taken by Congress in the Tax Cuts and Jobs Act of
2017 as a reduction of the Individual Shared Responsibility Payment (SRP), ratherthan
an elimination of the individual mandate. The applicable language of the SRP penalty
was never removed from federal law, but rather the parameters were reset by the Tax
Cuts and Jobs Act of 2017, effective January 1, 2019.
3. Minnesota's individual market covered over 300,000 people in 2015. I estimate that
today, this market covers somewhere between 150,000 and 155,000 people. The
primary cause of the individual market's decrease in enrollment is due to premium rate
increases. As a counter-balance, more individuals qualified and received federal
premium tax credit subsidies through Minnesota's state-based Health Insurance
Exchange, MNsure, which resulted in relatively stable individual market enrollment in
Minnesota in recent years.
4. The elimination of the ACA would severely disrupt the ability to access and purchase
health insurance coverage for between 150,000 to 300,000 people in Minnesota's
individual market. Minnesota Statutes Chapters 62A, 62L, 62K, 62Q and 62V were
comprehensively revised to conform with the ACA. However, without the federal
premium tax credits, health insurance will be unaffordable for the vast majority of
Minnesotans, resulting in lack of access to health care.
4.11 estimate that over 30,000 Minnesotans will not be able to secure commercial
health insurance due to the repeal of the ACA and the ability of insurance
companies discriminate against individuals with pre-existing
conditions. Minnesota's high risk pool had reached over 26,000 in 2013, and
enrollees with high-cost cases increased significantly in 2014 and 2015. This
number would be higher if it included the Medicaid expansion and
MinnesotaCare populations.

00427

4.2 Many more Minnesotans would be uninsured. According to the 2017 Minnesota
Health Access Survey, 1 Minnesota's uninsured rate was estimated to be 6.3
percent in 2017. In 2013, the uninsured rate was an estimated 8.2 percent, and
had been estimated at 9.0 percent in 2009 and 2011.
5. Minnesota, like Alaska, Oregon, Wisconsin, Oklahoma and Maine, took significant action
to address affordability while maintaining the goal of offering comprehensive coverage.
Without the ACA, it is likely that Minnesota would experience direct financial harm.
Minnesota's Section 1332 waiver implies that the federal government will provide $150
to $200 million to the state for Minnesota's state-based reinsurance program. To date,
. Minnesota has dedicated $271 million per year to reduce insurance premiums in the
individual market for plan years 2018 and 2019.
6. In Minnesota, people who would otherwise have to buy insurance in the private market
with incomes between 133% and 200% of poverty who do not have access to employerbased coverage, are enrolled in Minnesota's Basic Health Program
(MinnesotaCare). This program was established under Section 1331 ofthe ACA. This
program would also be lost if the federal government is enjoined from enforcing the
ACA. Basic Health Programs receive from the federal government 95% of what the
enrollees would have otherwise received in premium and cost-sharing subsidies in the
individual market from the federal government. Minnesota uses these funds to
purchase group coverage from health plans, and at a lower price point for consumers.
Based on information from the Minnesota Department of Human Services there are
approximately 82,000 people enrolled in this program, and Minnesota received
approximately $548 million in federal funding in calendar year 2017. Calendar year 2018
funding is uncertain because of the HHS decision to discontinue a portion of the funding
related to the CS Rs.

7. Minnesota's provider community would experience financial harm caused by increased
uncompensated care. I do not have data to estimate this impact, though it is an
important concern given that the federal government significantly decreased
Disproportionate Share Hospital (DSH) payments due to the ACA. Some affected
providers are county hospitals. It is also important to note because it is unique to
Minnesota: Minnesota had provided coverage for adults without children since the
1970s, at 100% state cost. As a result, Minnesota's Medicaid DSH allotment is
disproportionately low, compared to other states that used the Medicaid DSH funding
to pay for deep-end, hospital care for those adults who were uninsured in those states.

http ://www,s h. ad ac.org/p u bIi cations/min nesotas-ch a ngi ng-h ea Ith-i nsu ranee-I a 11 dsca pe-res uIts-2017-m inn esotahea Ith-access

1

00428

8. The elimination of the ACA would also affect the health of Minnesotans and the State of
Minnesota's public health costs. While this is not readily quantifiable, it is important to
remember that for most people, access to health insurance and public health programs
such as Medicaid, like the BHP, provides their access to health care. It is also important
to consider that individual market premium escalation is due to people with health care
conditions now having the ability to access the care they need.
9. The ACA provided the authority for Medicaid to cover adults without minor children
who are not disabled. Prior to the ACA, these individuals received some coverage
through various state-funded programs. There are currently 212,000 people enrolled in
the expansion population. Their income is less than 133% of the poverty level, which
means that private insurance is out of range. According to the Minnesota Department of
Human Services Minnesota receives approximately $1.7 billion annually in federal
funding to support this Medicaid expansion.
10. Loss of coverage for people in the Medicaid expansion and MinnesotaCare will increase
the rate of uninsurance in Minnesota. It will increase the amount of uncompensated
care for providers. The lack of coverage through the public programs, combined with
the inability to buy coverage in the private market, means that many people will delay
necessary preventive care, will receive delayed treatment for their medical conditions,
or no treatment at all.
11. Finally, it is important to note that there were many items in the ACA that are not
connected to federal subsidies and taxes. For example, most health plans in commercial
markets and Medicaid must now offer coverage to children until age 26 (including foster
children), often without regard to the child's disability, residence, tax status or marital
status. Most health plans no longer can apply pre-existing conditions, lifetime and
annual limits. These have been important changes that have significantly affected the
finances of consumers and state budgets.
I declare under penalty of perjury that the foregoing is true and correct and of my own personal
knowledge and investigation of fact provided to me by other state agencies. Executed on June
7, 2018, in St. Paul, Minnesota.

KRISTI M. BOHN
Director, Regulatory & Policy Analysis
MINNESOTA DEPARTMENT OF COMMERCE
85 7th Place East, Suite 280
St. Paul, MN 55101

00429

Certificate of Service

On

June 7, 2018

I electronically submitted the foregoing

document with the clerk of court for the U.S. District Court, Northern District
of Texas, using the electronic case filing system of the court. I hereby certify
that I have served all counsel and/or pro se parties of record electronically or
by another manner authorized by Federal Rule of Civil Procedure 5 (b)(2).
s/ M. Schoenhardt