Amicus Curiae Brief — California, et al., Petitioners v. Texas, et al.
Supreme Court briefMay 13, 2020
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No. 19-840
1n tbe antpreme Court of tbe
ikate5
CALIFORNIA, et al.,
Petitioners,
TEXAS, et al.,
Respondents.
On Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit
BRIEF OF THE AMERICAN ASSOCIATION OF PEOPLE
WITH DISABILITIES, PARALYZED VETERANS OF
AMERICA, JUDGE DAVID L. BAZELON CENTER FOR
MENTAL HEALTH LAW, DISABILITY RIGHTS EDUCATION
AND DEFENSE FUND, AND 15 OTHER LEADING
NATIONAL DISABILITY RIGHTS ORGANIZATIONS AS
AMICI CURIAE IN SUPPORT OF PETITIONERS
Charles A. Luband
Claire E. Bornstein
Dentons US LLP
1221 Ave. of the Americas
New York, NY 10020
Elizabeth B. McCallum
Cassandra J. Simmons
Baker & Hostetler LLP
1050 Conn. Ave., N.W.
Suite 1100
Washington, DC 20036
May 13, 2020
Mark P. Johnson
Counsel of Record
Wade P. K. Carr
Dentons US LLP
4520 Main Street
Suite 1100
Kansas City, MO 64111
(816) 460-2400
mark.johnson@dentons.com
Bruce Merlin Fried
Dentons US LLP
1900 K St., N.W.
Washington, D.C. 20006
(Additional counsel listed on signature pages)
1
TABLE OF CONTENTS
' INTEREST OF AM/C/
Page
1
SUMMARY OF ARGUMENT
3
ARGUMENT
6
The ACA Uniquely and Extensively Benefits
People With Disabilities, and Congress Would
Have Preferred Severability to Avoid
Disproportionate Harm to That Same
Population.
6
The ACA's Expansion of Health Care Access
and Coverage for People With Disabilities Has
Greatly Benefitted Society as a Whole.
12
III.Several Generally Applicable Provisions in the
ACA Are Critical to Providing People With
Disabilities Access to Health Care
16
Protections for Pre-Existing Conditions 17
Guaranteed Issue
19
Dependent Coverage for Adult Children 20
Essential Health Benefits
21
Ban on Annual and Lifetime Limits
23
Non-Discrimination Requirements
24
IV. The ACA's Changes to Medicaid Provide
People With Disabilities Better, and
Sometimes Unprecedented, Access to Health
Care.
26
Medicaid Eligibility Expansion
27
Long-Term Care Services and Supports 29
11
State Plan Home and Community
Based Services Option
31
Community First Choice Option
32
C. Behavioral Health Parity
CONCLUSION
34
35
111
TABLE OF AUTHORITIES
Page(s)
Cases
Nat'l Fed 'n, of Indep. Bus. u. Sebelius,
567 U.S. 519 (2012)
Olmstead v. L.C.,
527 U.S. 581 (1999)
27
10, 29, 30
Statutes
26 U.S.C. § 9812
23
29 U.S.C. § 1185a
23
42 U.S.0
passim
Affordable Care Act
passim
Americans with Disabilities Act
30
Health Care and Education and Reconciliation
Act of 2010, Pub. L. No. 111-152, 124 Stat.
1029 (2010)
1
Patient Protection and Affordable Care Act
§ 1302(b)(2)(C)
§ 1311
§ 1557
§ 2401(k)(3)(B)
§ 2405
§ 2406
§ 2705(a)(8)
§ 4001
10
25
25
10
10
10
10
10
iv
Other Authorities
42 C.F.R.
45 C.F.R. § 155.120(c)
8, 9, 27
19, 21, 23, 25
156 Cong. Rec.
11, 20
Alexandra Gates, Health Coverage and Care
for the Adult Criminal Justice-Involved
Population, KAISER COMM'N ON MEDICAID &
THE UNINSURED (Sept. 2014),
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15
Arpita Chattopadhyay et al., Cost-efficiency in
Medicaid Long-term Support Services: The
Role of Home and Community Based
Services, 2 SPRINGERPLUS 1 (2013),
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PMC3710567
31
Catherine A. Okoro et al., Prevalence of
Disabilities and Health Care Access by
Disability Status and Type Among
Adults—United States, 2016, 67 MORBIDITY
& MORTALITY WKLY. REP. 882 (2018)
20
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Expenditures and Length of Disability
Across Medical Conditions, 60 J.
Occupational and Envtl. Med. (2018),
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8/07000/Health Care Expenditures and L
ength of Disability.9.aspx
24
V
Chaiporn Pumkam et al., Health Care
Expenditures Among Working-age Adults
with Physical Disabilities: Variations by
Disability Spans, 6 DISABILITY & HEALTH J.
287 (2013)
24
CTRS. FOR MEDICARE & MEDICAID SERVS., U.S.
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SUMMARIES OF MEDICARE & MEDICAID:
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SECURITY ACT (2019),
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27
Elizabeth Edwards, Helping Those on HOBS
Waiting Lists: Positive Impacts of the ACA,
NAT'L HEALTH LAW PROGRAM (Feb. 14,
2017), https://healthlaw.org/wpcontent/uploads/2017/02/HCBS-ACA33, 34
WaitingListsFinal.pdf
Elizabeth Guo, et al., Eliminating Coverage
Discrimination Through the Essential
Health Benefit's Anti-Discrimination
Provisions, 107 Am. J. Pub. Health 253
(2017), https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC5227931/pdf/AJPH.2016.3035
63.pdf
25
vi
Emily Rosenoff et al., An Overview of LongTerm Services and Supports and Medicaid:
Final Report, U .S . Department of Health
and Human Services Assistant Secretary
for Planning and Evaluation Office of
Disability, Aging and Long-Term Care
Policy (May 2018) https://aspe.hhs.gov/
basic-report/overview-long-term-servicesand-supports-and-medicaid-final-report
30
EQUAL EMP'T OPPORTUNITY COMM'N, CHARGE
STATISTICS: FY 1997 THROUGH FY 2017,
https://www.eeoc.gov/eeoc/statistics/enforce
ment/charges.cfm
7
Erica L. Reaves & MaryBeth Musumeci,
Medicaid and Long-Term Services and
Supports: A Primer, KAISER FAMILY FOUND.
(Dec. 2015), http://files.kff.org/
attachment/report-medicaid-and-longterm-services-and-supports-a-primer
30
Gary Claxton et al., KAISER FAMILY FOUND. &
HEALTH RESEARCH & EDUC. TR., EMPLOYER
HEALTH BENEFITS: 2009 ANNUAL SURVEY
(2009), https://www.kff.org/wpconte nt/up lo a ds/2013/04/7936.pdf
23
Gary Claxton et al., Pre-Existing Condition
Prevalence for Individuals and Families,
KAISER FAMILY FOUND. (Oct. 4, 2019),
https://www.kff.org/health-reform/issuebrief/pre-existing-condition-prevalence-for18, 22, 34
individuals-and-families/
vii
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Impact on Medicaid, Market, and the
Uninsured, by State, Apr. 3, 2020, available
at https://www.healthmanagement.com/wpcontent/uploads/HMA- Estimates-ofCOVID-Impact-on-Coverage-publicversion-for-April-3-830-CT.pdf
11
Henk J. Stam, et al., Covid- 19 and Post
Intensive Care Syndrome: A Call for Action,
52 J. Rehabil. Med. (Apr. 14, 2020),
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17
HHS Notice of Benefit and Payment
Parameters for 2016, 80 Fed. Reg. 10750,
10811 (Feb. 27, 2015) (as codified at 45
C.F.R. § 156.115)
22
http://www.chlpi.org/wpcontent/uploads/2013/12/LA-Humana.pdf
26
Jae Kennedy et al., Disparities in Insurance
Coverage, Health Services Use, and Access
Following Implementation of the Affordable
Care Act: A Comparison of Disabled and
Nondisabled Working-Age Adults, 54 J. OF
HEALTH CARE ORG., PROVISION, & FIN. 1
7, 8, 24
(2017)
Jean P. Hall et al., Medicaid Expansion as an
Employment Incentive Program for People
With Disabilities, 108 Am. J. PUB. HEALTH
1235 (2018)
13
viii
Joanne Volk, Affordable Care Act's Ban on
Lifetime Limits Has Ended Martin Addie's
Coverage Circus, GEORGETOWN UNIV.
HEALTH POLICY INST. (Nov. 14, 2012),
http s ://ccf. georgetown. e du/2012/11/14/affor
dable-care-acts-ban-on-lifetime-limits-hase nde d-m artin- a ddie s -coverage -circus/.
24
Jody S. Hyde & Gina A. Livermore, Gaps in
Timely Access to Care Among Workers by
Disability Status: Will the Patient
Protection and Affordable Care Act Reforms
Change the Landscape?, 26 J. OF DISABILITY
POL'Y STUD. 221 (2016)
8
KAISER FAMILY FOUND., Health Insurance
Market Reforms: Guaranteed Issue (2012),
https://www.kfforg/wpcontent/uploads/2013/01/8327.p df
19
Kaiser Family Found., Medicaid's Role in
Meeting Seniors' Long-Term Services and
Supports Needs (Aug. 2, 2016)
https://www.kfforg/medicaid/factsheet/medicaids-role-in-meeting-seniorslong-term-services-and-supports-needs/
30
KAISER FAMILY FOUND., STATUS OF STATE
ACTION ON THE MEDICAID EXPANSION
DECISION (2020), https://www.kff.org/
health-reform/state-indicator/state-activitvaround-expanding-medicaid-under-theaffordable-care-act
27
ix
Kali S. Thomas & Robert Applebaum, Longterm Services and Supports (LTSS): A
Growing Challenge for an Aging America,
25 PUB. POL'Y & AGING REP. 56 (2015)
14
Kirsten Beronio et al., How the Affordable
Care Act and Mental Health Parity and
Addiction Equity Act Greatly Expand
Coverage of Behavioral Health Care, 41 J.
Behay. Health Serv. Res. 410 (2014)
23
Kirsten Beronio et al., U.S. DEP'T OF HEALTH &
HUMAN SERVS., OFFICE OF THE ASSISTANT
SEC'Y FOR PLANNING & EVALUATION,
Affordable Care Act Will Expand Mental
Health and Substance Use Disorder
Benefits and Parity Protections for 62
Million Americans (2013), https://aspe.hhs.
gov/system/files/pdf/76591/rb mental.pdf
23
Larisa Antonisse et al., The Effects of
Medicaid Expansion under the ACA:
Updated Findings from a Literature
Review, KAISER FAMILY FOUND. (Mar.
2018), http://files.kff.org/attachment/IssueBrief-The-Effects-of-Medicaid-ExpansionUnder-the-ACA-Updated-Findings-from-a12, 28
Literature-Review
Louise Norris, Health Insurance and HighRisk Pools: ACA's coverage of pre-existing
conditions made high-risk pools obsolete.
Will they be resurrected as an Obamacare
replacement?, HEALTHINSURANCE.ORG (Dec.
10, 2018), https://www.healthinsurance.
org/obamacare/risk-pools
17
x
Mary Sowers, et al., Streamlining Medicaid
Home and Community-Based Services: Key
Policy Questions, KAISER FAMILY
FOUND. (Mar. 11, 2016) https://www.kff.
org/medicaid/issue-brief/streamliningmedicaid-home-and-community-basedservices-key-policy-questions
31
MaryBeth Musumeci, The Affordable Care
Act's Impact on Medicaid Eligibility,
Enrollment, and Benefits for People with
Disabilities, KAISER COMM'N ON MEDICAID
& THE UNINSURED (2014), https://www.kff.
org/wp-content/uploads/2014/04/8390-02the-affordable-care-acts-impact-onmedicaid-eligibility.Pdf
28
MaryBeth Musumeci, Priya Chidambaram,
and Molly O'Malley Watts, Questions About
Medicaid Home and Community-Based
Services Waiver Waiting Lists, Kaiser
Family Foundation (Apr. 4, 2019),
https://www.kff.org/medicaid/issuebrief/key-questions-about-medicaid-homeand-community-based-services-waiverwaiting-lists/
33
Medicaid.gov, Community First Choice (CFC)
1'915 (k), https://www.medicaid.gov/
medicaid/ home-community-basedservices/home-community-based-servicesauthorities/community-first-choice-cfc1915-k/index.html
33
xi
Molly O'Malley Watts et al., Medicaid
Financial Eligibility for Seniors and People
with Disabilities in 2015, KAISER COMM'N
ON MEDICAID & THE UNINSURED (2016),
httu://files.kfforg/attachment/reportmedicaid-financial-eligibility-for-seniorsand-people-with-disabilities-in-2015
28, 32
Nancy A. Miller et al., The Relation Between
Health Insurance and Health Care
Disparities Among Adults with Disabilities,
104 AM. J. OF PUB. HEALTH e85 (2014)
19
NAT'L COUNCIL ON DISABILITY, THE
IMPACT OF THE AFFORDABLE CARE
ACT ON PEOPLE WITH DISABILITIES:
A 2015 STATUS REPORT (2016),
https://ncd.gov/sites/default/files/NCD ACA
Report02 508.pdf
20
Nirmita Panchal, et al., The Implications of
COVID- 19 for Mental Health and
Substance Abuse, KAISER FAMILY FOUND.
(Apr. 21, 2020), https://www.kff.org/healthreform/issue-brief/the-implications-ofcovid-19-for-mental-health-and-substanceuse/
17
xii
Press Release, Office of Civil Rights (HHS),
OCR Reaches Early Case Resolution With
Alabama After It Removes Discriminatory
Ventilator Triaging Guidelines (Apr. 8,
2020), available at
https://www.hhs.gov/about/news/2020/04/08
/ocr-reaches-early-case-resolution-alabamaafter-it-removes-discriminatory-ventilatortriaging.html
26
Press Release, Office of Civil Rights (HHS),
OCR Resolves Civil Rights Complaint
Against Pennsylvania After it Revises its
Pandemic Health Care Triaging Policies to
Protect Against Disability Discrimination
(Apr. 16, 2020), available at
https://www.hhs.gov/about/news/2020/04/16
/ocr-resolves-civil-rights-complaint-againstpennsylvania-after-it-revises-its-pandemichealth-care.html
26
Priya Chidambaram, State Reporting of Cases
and Deaths Due to COVID-19 in LongTerm Care Facilities, KAISER FAIVIdLY
FOUND. (Apr. 23, 2020),
https://www.kff.org/medicaid/issue-brief/
state-reporting-of-cases-and-deaths-due-tocovid-19-in-long-term-care-facilities/
16, 29
Sandro Galea, et al., Then Mental Health
Consequences of COVID- 19 and Physical
Distancing: The Need for Prevention and
Early Intervention. JAMA Intern Med.
(April 10, 2020), https://jamanetwork.com/
iournals/i amainternalmedicine/fullarticle/2
764404
17
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How the Recession Has Left Millions of
Workers Without Health Insurance, and
How Health Reform Will Bring Relief, THE
COMMONWEALTH FUND (Mar. 2011),
https://www.commonwealthfund.org/sites/d
efault/files/documents/ media files publi
cations fund report 2011 mar 1486 collin
s help on the horizon 2010 biennial sury
ev report final v2.pdf
18
Sarah Kliff, The Obamacare Provision that
Saved Thousands from Bankruptcy, VOX
(Mar. 2, 2017), https://www.vox.com/policy-
and-politics/2017/2/15/14563182/
obamacare-lifetime-limits-ban
23
Sarah Liebowitz et al., AM. CIVIL LIBERTIES
UNION OF S. CAL. & BAZELON CTR. FOR
MENTAL HEALTH LAW, A Way Forward:
Diverting People with Mental Illness from.
Inhumane and Expensive Jails into
Community-Based Treatment that Works
(2014)
15
Shannon McConville et al., Frequent
Emergency Department Users: A Statewide
Comparison Before And After Affordable
Care Act Implementation, 37 HEALTH
AFFAIRS 881 (2018)
13
xiv
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Health Equity at the Intersection of
Disability, Race, and Ethnicity, NAT'L
ACADS. SCI., ENGINEERING & MED. (2017),
available at https://dredf.org/wpcontent/uploads/2018/01/CompoundedDisparities-Intersection-of-DisabilitiesRace-and-Ethnicity.pdf
7
SOC. SEC. ADMIN., SOCIAL SECURITY
ADMINISTRATION (SSA) ANNUAL DATA FOR
INITIAL DISABILITY CASES INVOLVING THE
PROCESSING CENTERS AVERAGE PROCESSING
TIME (2018), https://www.ssa.gov/open/
data/program-service-centers.html
9
Stephan Lindner et al., "Canaries in the
mine...':• The Impact of Affordable Care Act
Implementation on People with Disabilities:
Evidence from Interviews with Disability
Advocates, 11 DISABILITY & HEALTH J. 86
28, 33
(2016)
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INST., VALUING THE INVALUABLE: 2015
UPDATE (2015),
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2015/valuing-the-invaluable-2015-updatenew pdf
14
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First Choice, https://hhs.texas.gov/services/
health/medicaid-chip/programsservices/community-first-choice (last
visited May 4, 2020)
33
XV
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OFFICE OF THE ASSISTANT SEC'Y FOR
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1/LTSSMedicaid.pdf
30, 31
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ESTIMATES OF INDIVIDUALS WITH PREEXISTING CONDITIONS RANGE FROM 36
MILLION TO 122 MILLION (2012),
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19
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Medicaid Can Help Address the Opioid
Epidemic, KAISER FAMILY FOUND. (JUNE
2019), http://files.kfforg/attachmentassueBrief-How-Connecting-Justice-InvolvedIndividuals-to-Medicaid-can-Help -Addressthe-Opioid-Epidemic
15
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INST. ON EMP'T & DISABILITY, 2009
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(2011), http://www.disability
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8, 9
xvi
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(2019), http://www.disability
statistics.ora/StatusReports/2017PDF/2017-StatusReport US.bdf
passim
1
INTEREST OF AMICI
Amici curiae are nineteen leading national
disability rights organizations: the American
Association of People with Disabilities, American
Civil Liberties Union, The Arc of the United States,
Association of University Centers on Disabilities,
Autistic Self Advocacy Network, Autism Society of
America, Center for Public Representation, Disability
Rights Education and Defense Fund, Disability
Rights Legal Center, Judge David L. Bazelon Center
for Mental Health Law, Little Lobbyists, Mental
Health America, National Association of Councils on
Developmental Disabilities, National Association of
the Deaf, National Council on Independent Living,
National Disability Rights Network, National Down
Syndrome Congress, National Federation of the Blind,
and Paralyzed Veterans of America.'
Together, amici are national organizations that
are made up of, represent, and advocate for the rights
of Americans with disabilities. The Affordable Care
Act2 is of critical importance to amici's membership
and constituents because it provides access to needed
health care coverage and services that enable people
1 No counsel for a party authored this brief in whole or in part,
and no such counsel or a party made a monetary contribution
intended to fund the preparation or submission of the brief. No
person other than amici curiae, their leadership, and their
counsel made a monetary contribution to the briefs preparation
or submission. Amici sought and obtained written consent from
the parties that had not provided blanket consent to the filing of
briefs by am ici curiae.
2 The "Affordable Care Act" or "ACA" refers both to the Patient
Protection and Affordable Care Act, Pub. L. No. 111-148, 124
Stat. 119 (2010) ("PPACA") and the Health Care and Education
and Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat.
1029 (2010) ("HCERA").
2
with disabilities to live healthy and independent lives.
Prior to its passage, millions of people with disabilities
were unable to access these services. Amici submit
this brief to assist the Court in understanding
Congress's intent that the ACA protect people with
disabilities.
3
SUMMARY OF ARGUMENT
Amici support the arguments of petitioners that
the individual and state plaintiffs lack standing, and
that reducing to zero the tax assessment for failing to
obtain minimum coverage does not invalidate that
provision. This brief, however, addresses the third
issue in the case: whether the minimum-coverage
provision is severable from the ACA if the Court
deems that provision unconstitutional.
In assessing whether Congress would have wanted
to sever the minimum-coverage provision in order to
save the remainder of the ACA, it is important to
consider the substantial benefits that Congress
intentionally extended to people with disabilities in
enacting the ACA. The breadth of these benefits, and
their critical importance to the lives of millions of
people with disabilities, should weigh heavily in favor
of finding the minimum-coverage provision severable,
thereby preserving the substantial benefits Congress
extended. Congress intentionally sought to protect
people with disabilities in the ACA, and would not
have wanted to scrap all of these benefits simply
because the minimum-coverage provision is deemed
invalid.
The ACA has been a life-saver for Americans who
live with disabilities. It has provided long-denied
access to crucial medical insurance and health care to
millions of such Americans. It has allowed people
with disabilities to obtain health care and supports
that can be critically important to their health,
independence, and productivity.
In this brief, am ici bring to the Court's attention
the unquestioned and significant, indeed sometimes
life-changing, benefits that the ACA has brought to
4
the many Americans represented by amici, and the
devastating effect a declaration that the ACA as a
whole is unconstitutional would have.
Even before the current pandemic, the ACA
provided crucial additional health care support to
people with disabilities. It greatly increased their
opportunities to obtain healthcare coverage in the
first place through either the federal or state
marketplaces or the expansions of Medicaid. It
protects against coverage limitations based on
preexisting conditions or lifetime limits, which
previously limited the healthcare available to people
with disabilities. It guarantees coverage of services
for mental illnesses and developmental disabilities. It
provides access to long-term, home-based health care,
which can mean the difference between
institutionalization and independence to people .with
disabilities. And it expressly precludes discrimination
in access to healthcare. Indeed, Congress expressly
intended the ACA to benefit people with disabilities
specifically. By including these provisions, Congress
intentionally sought to benefit people with
disabilities. It would not have wanted to sacrifice all
of these protections merely because the minimumcoverage provision were declared invalid.
The COVID-19 pandemic underscores the impact
of the ACA on these issues. Among other things, the
pandemic has greatly increased the number of
unemployed Americans who may . seek coverage
through the ACA marketplaces or Medicaid and likely
will substantially increase the number of people with
disabilities, many of whom will need long-term health
care for the lasting effects of the disease. It has also
led to concerns about the potential rationing of scarce
but potentially lifesaving health care resources (e.g.,
5
ventilators and ICU beds) based on the existence and
severity of a patient's disability—a result the ACA
forbids. Now especially, invalidating the ACA as a
whole would have a devastating effect on the care and
services available to the growing number of people
with disabilities in our country.
Congress expressly sought to expand these health
benefits for all, but particularly to those most
vulnerable to health insurance barriers: people with
disabilities. That intention should guide this Court in
concluding that, even if the minimum-coverage
provision is deemed invalid, it can be severed, saving
the remainder of the Act, and avoiding the
unthinkable damage to people with disabilities that
wholesale invalidation would deliver.
6
ARGUMENT
I.
The ACA Uniquely and Extensively
Benefits People With Disabilities, and
Congress Would Have Preferred
Severability to Avoid Disproportionate
Harm to That Same Population.
In enacting the ACA, one of Congress's express
goals was to protect people with disabilities. The act
does so in many critically important ways. These
benefits, which would survive even in the absence of
the minimum-coverage provision, strongly counsel in
favor of honoring Congress's intent and severing that
provision, if necessary. The extent of the benefits to
people with disabilities running through the entire
Act supports the conclusion that Congress would not
have wanted to cast aside these benefits—and these
beneficiaries—merely because the minimum-coverage
provision were deemed invalid.
The health care challenges for people with
disabilities start with the fact that they face
significant barriers to finding and maintaining
employment.3 Whether it is explicit or implicit bias in
the hiring process, an adverse employment action
based on misguided assumptions, or a failure to
provide reasonable accommodations to an employee,
disability discrimination in employment remains
3 In 2017, the employment rate of non-institutionalized workingage people with disabilities in the United States was 37.3%,
compared with 79.4% of people without disabilities. See W.
ERICKSON ET AL., CORNELL UNIV. YANG-TAN INST. ON EMP'T &
DISABILITY, 2017 DISABILITY STATUS REPORT: UNITED STATES 31
(2019), http://www.disabilitystatistics.org/StatusReports/2017PDF/2017-StatusReport US.pdf ("2017 DSR").
7
pervasive.4 Moreover, people with disabilities often
lack the employment and health care services and
supports they need to secure and maintain work.5
Because of the many societal barriers to
employment, people with disabilities are much less
likely to have employer-provided health insurance
than people without disabilities. 6
While the
majority-65.4% in 2017—of Americans without
disabilities obtain health insurance from their
employers, this statistic almost perfectly inverts as to
people with disabilities. 7 In 2017, only 34.7% of
people with disabilities had employer-provided
coverage—meaning that 65.3% did not.8 Accordingly,
most people with disabilities must look elsewhere for
health insurance, either through plans not sponsored
by employers or through Medicaid or Medicare.
Before the ACA's passage, searching for private
insurance was often a futile endeavor with limited
4 In 2017, the U.S. EEOC reported that 31.9% of all, charges filed
that year related to workplace disability discrimination. See
EQUAL EMP'T OPPORTUNITY COMM'N, CHARGE STATISTICS: FY
1997 THROUGH FY 2017, https://www.eeoc.gov/eeoc/statistics/
enforcement/charges.cfm.
5 See, e.g., Silvia Yee et al., Compounded Disparities: Health
Equity at the Intersection of Disability, Race, and Ethnicity,
NAT'L ACADS. SCI., ENGINEERING & MED. (2017), available at
https://dredf. org/wp-content/uploads/2018/01/CompoundedDisparities-Intersection-of-Disabilities-Race-and-Ethnicitv.pdf
(documenting the disparities in access to health care, quality of
care, and health outcomes among people with disabilities).
6 Jae Kennedy et al., Disparities in Insurance Coverage, Health
Services Use, and Access Following Implementation of the
Affordable Care Act: A Comparison of Disabled and Nondisabled
Working-Age Adults, 54 J. OF HEALTH CARE ORG., PROVISION, &
FIN. 1, 1 (2017).
7 2017 DSR, supra note 3, at 55.
8 Id.
8
coverage options. Private insurance was not a
realistic option for many people with disabilities
because of pre-existing condition exclusions, annual
or lifetime limits on benefits, and high premium
costs.9 Even if private coverage was available, people
with disabilities still might require services that those
private health insurance plans refused to cover, such
as durable medical equipment, mental health and
substance use disorder services, or rehabilitation and
habilitation services.10
Unable to obtain adequate private insurance,
many people with disabilities turned to Medicaid"
and/or Medicare 32 as their only options.13 Indeed, in
2009—before passage of the ACA-58.2% of people
with disabilities received insurance from Medicare or
Medicaid, compared to just 7.6% of people without
disabilities." But many people with disabilities could
not qualify for Medicare or Medicaid. For example,
9 Kennedy et al., supra note 6, at 1.
10 Jody S. Hyde & Gina A. Livermore, Gaps in Timely Access to
Care Among Workers by Disability Status: Will the Patient
Protection and Affordable Care Act Reforms Change the
Landscape?, 26 J. OF DISABILITY POL'Y STUD. 221, 221 (2016);
Kennedy et al., supra note 6, at 1.
11 Medicaid is the primary public health insurance program for
people with low incomes and is a program administered and
financed jointly by states and the federal government. 42 U.S.C.
§ 1396 et seq.; 42 C.F.R. § 430 et seq.
12 Medicare provides benefits for individuals aged 65 or older and
individuals who are entitled to Social Security Disability
Insurance ("SSDI") benefits for at least 25 months. 42 U.S.C.
§§ 423, 426(b), 1395c, 1395i-2a; 42 C.F.R. § 406.12.
13 See W. ERICKSON ET AL., CORNELL UNIV. YANG-TAN INST. ON
EMP'T & DISABILITY, 2009 DISABILITY STATUS REPORT: UNITED
STATES 55, 56 (2011), httD://www.disabilitvstatistics.org/Status
Reports/2009-PDF/2009-StatusReport US.pdf ("2009 DSR").
14 2017 DSR, supra note 3, at 55-56.
9
individuals without a "qualifying permanent
disability" (e.g., a blind or Deaf individual) and those
who earned income in excess of a defined poverty line
were excluded from coverage. Still others faced long
waiting periods—a newly disabled individual had to
wait two years from the date of disability before
Medicare benefits could begin, or up to a year for
Medicaid, depending on the individual's state of
residence. 15 These individuals were left stranded,
without the coverage they needed to maintain their
health and live full and independent lives.
The ACA brought significant and measurable
improvements in access to health insurance and the
quality of health insurance plans to people with
disabilities. Since the ACA's passage, the uninsured
rate for people with disabilities has fallen
significantly. In 2009, 17.4% of disabled individuals
were not insured. By 2017, that rate had fallen to
9.8%. 16 The rate of those with disabilities who
received health insurance from their employer stayed
roughly constant during that time frame, namely,
15 Individuals with disabilities who receive SSDI are eligible for
Medicare, but benefits do not begin until 25 months from the
individual's date of disability. In addition, states are generally
required to provide Medicaid coverage to people with disabilities
who receive Supplemental Security Income ("SSI") benefits, but
establishing eligibility for SSI based on a qualifying disability
through the Social Security Administration ("SSA") can take up
to a year. 42 U.S.C. § 1396a(a)(10)(A)(i)(II)(aa); 42 C.F.R.
§ 435.120 (2019); see SOC. SEC. ADMIN., SOCIAL SECURITY
ADMINISTRATION (SSA) ANNUAL DATA FOR INITIAL DISABILITY
CASES INVOLVING THE PROCESSING CENTERS AVERAGE
PROCESSING TIME (2018), https://www.ssa.aov/open/data/
program-service-centers.html.
16 Compare 2009 DSR, supra note 13, at 55, with 2017 DSR,
supra note 3, at 56.
10
36.5% in 2009 and 34.7% in 2017.17 Thus, the largest
gains for people with disabilities came from the ACA's
Medicaid expansion, with 42.9% receiving Medicaid
coverage in 2017, up from 34.9% in 2009. 18
Altogether, at least 2.5 million more Americans with
disabilities gained access to health care due to the
ACA.
These effects were fully intended by Congress.
Several provisions of the ACA specifically and
expressly address deficiencies in previously available
services for people with disabilities, relieving them
and their families from often overwhelming out-ofpocket costs.19 The legislative history is in accord. As
one Senator observed, "[The ACA] is good to remind
17 Id.
18 Id.
e.g., PPACA § 2705(a)(8) (forbidding discrimination in
coverage and benefits based on disability); PPACA
§ 1302(b)(4)(C)-(D) ("essential health benefits" must "take into
account the health care needs of . . . persons with disabilities"
and must "ensure that health benefits . . . not be subject to denial
to individuals based on ...the individuals' present or predicted
disability"); PPACA § 2401(k)(3)(B) (requiring state plans to
provide home and community based services "without regard to
the individual's age, type or nature of disability, severity of
disability, or the form of home and community-based attendant
services and supports that the individual requires in order to
lead an independent life"); PPACA § 2405 (appropriating funding
"to expand State aging and disability resource centers"); PPACA
§ 2406 (stating that under Olmstead v. L. C., 527 U.S. 581 (1999),
people with disabilities have the "right to choose to receive their
longterm services and supports in the community, rather than in
an institutional setting"; and that "Congress should address
long-term services and supports in a comprehensive way that
guarantees elderly and disabled individuals the care they need"
"in the community in addition to in institutions"); PPACA
§ 4001(d)(2) (establishing national Council to, among other
things, "reduc[e] the incidence of preventable . . . disability").
19 See,
11
us that we are, once again, an American family; that
no one should be discriminated against simply
because they are sick or have an illness or because fate
has dealt them a blow by becoming disabled. That is
what this bill is about more than anything else."20 As
another legislator explained, "this landmark
legislation will end abusive health insurance practices
that prevent people from purchasing and maintaining
their coverage when they are sick; it will ban yearly
and lifetime insurance caps, so individuals with
chronic, disabling conditions don't lose coverage and
end up in bankruptcy." 21
Now more than ever, it is vitally important to
preserve the gains the ACA created and to continue to
provide people with disabilities—and indeed all
Americans—access to expanded health care coverage
through non-employer based insurance or Medicaid.
Early estimates show that COVID-19 and the
economic devastation it has brought may result in up
to 35 million people losing their jobs, and their
employer-based insurance, thereby becoming newly
reliant on the expanded insurance and (in some
states) Medicaid options provided by the ACA. 22
Given the systemic discrimination that already makes
obtaining and maintaining employment difficult for
people with disabilities, the ACA's programs and
services are more important than ever. Because
20 156 Cong. Rec. S1831 (2010) (emphasis added).
21 156 Cong. Rec. H2432 (2010) (emphasis added).
22 Health Management Associates,
Covid-19 Impact on
Medicaid, Market, and the Uninsured, by State, Apr. 3, 2020
(estimating that the number of people with employer-sponsored
health insurance could decline by 12 to 35 million), available at
https://www.healthmanagement.com/wp-content/uploads/HMAEstimates-of-COVID-Impact-on-Coverage-Public-version-forApril-3-830-CT.pdf.
12
Congress would not have wanted to jettison these
critical protections, the Court should find that the
minimum-coverage provision is severable should it
conclude that it is invalid.
II.. The ACA's Expansion of Health Care
Access and Coverage for People With
Disabilities Has Greatly Benefitted
Society as a Whole.
The ACA's specific, positive impacts on people with
disabilities extend beyond that population alone.
Research has consistently demonstrated that the
ACA's improved access to health care for people with
disabilities has benefited the broader population in
many ways.
First, the ACA's expansion of Medicaid eligibility
has enabled more people with disabilities to access the
workforce. Many people with disabilities depend on
health care services and supports—items and services
as simple as a wheelchair, pain management
treatment, mental health supports, or an accurate
glucose monitor—to perform basic tasks, go to work,
or even get out of bed. Several studies examined the
impact that increased access to health care—and
specifically the expansion of Medicaid—has had on
employment rates. Most studies show a significant
positive link between Medicaid expansion and
employment rates; none show a negative correlation.23
Because of the ACA, people with disabilities are less
likely to face the dilemma of keeping their health
23 Larisa Antonisse et al., The Effects of Medicaid Expansion
under the ACA• Updated Findings front a Literature Review,
KAISER FAMILY FOUND. 7-8 (Mar. 2018), http://files.kff.org/
attachment/Issue-Brief-The-Effects-of-Medicaid-ExpansionUnder-the-ACA-Uodated-Findings-from-a-Literature-Review.
13
insurance or working to their fullest potential and
losing good health coverage because of income
thresholds or other barriers to coverage.24 In the now
37 states (including the District of Columbia) that
have expanded Medicaid coverage, people with
disabilities are more likely to be employed and fewer
people are likely to report not working because of a
disability, in comparison to states that have not
expanded Medicaid.25
Second, research shows that expanded access to
health care may reduce hospital emergency room
usage. A study examining California emergency room
usage found that "[emergency] patients actually had a
lower likelihood of being frequent users after [the
ACA's] implementation," after controlling for other
variables in the population. 26 The study's authors
explained:
While our findings do not provide
evidence that the ACA caused these
changes, they suggest that expanded
Medicaid coverage might have allowed
patients to access needed medical
services outside of the [emergency room].
This might have been especially true
among people with chronic conditions
who used the [emergency room]
frequently pre ACA but who became
connected to a primary care provider as
Medicaid Expansion, as an Employment
Incentive Program for People With Disabilities, 108 AM. J. PUB.
. HEALTH 1235, 1235 (2018).
•
25 Id.
26 Shannon McConville et al., Frequent Emergency Department
Users: A Statewide Comparison Before And After Affordable Care
Act Implementation, 37 HEALTH AFFAIRS 881, 886 (2018).
24 Jean P. Hall et al.,
14
a result of the ACA Medicaid expansion
via Medicaid managed care plans.27
The ACA's increase in options for Medicaid
coverage of disabled individuals and the provision of
long-term services and supports ("LTSS") under
Medicaid also have important ramifications for the
broader population. Specifically, these options have
reduced reliance on informal, unpaid caregivers, such
as family members who provide care to a disabled
parent, child or other family member. In 2013, unpaid
informal caregivers (primarily family members)
provided up to three-quarters of uncompensated
LTSS care, amounting to an estimated $470 billion in
unpaid care. 28 Additionally, family members and
other informal caregivers are frequently called on to
provide more complex and demanding medical or
nursing care for which they may lack training,
including medication management, wound care, and
incontinence care. 29 Providing LTSS coverage
through Medicaid to individuals with disabilities
relieves economic and practical the burdens on
caregivers, allowing some to be paid for their
caregiving work and others to return to other work
while their family members receive proper and
necessary. care.
Finally, Medicaid expansion has the potential to
reduce the needless incarceration of people with
27 Id. at 887.
28 Susan C. Reinhard et al., AARP PUB. POLICY INST., VALUING
THE INVALUABLE: 2015 UPDATE 1 (2015), https://www.aarp.org/
content/dam/aarn/ooi/2015/valuin g-the-invalu able-2015-up datenew.odf.
29 Kali S. Thomas & Robert Applebaum, Long-term Services and
Supports (LTSS): A Growing Challenge for an Aging America, 25
PUB. POL'Y & AGING REP. 56, 59 (2015).
15
disabilities. As a result of the expansion, many people
with disabilities now have access to community-based
services that reduce the likelihood that they will have
police encounters and find themselves incarcerated. 30
The expansion has also made it possible for many
people with disabilities to receive needed services
when they re-enter society following incarceration.
"Upon release from prison and jail, individuals are
often uninsured, making it difficult to access stable
sources of care in the community to address these
needs.
Expanding health insurance to these
individuals [through the ACA] will likely facilitate
their ability to access needed care and manage their
ongoing conditions." 31 In fact, states that have
expanded Medicaid have enrolled a significant
percentage of newly incarcerated individuals, helping
to connect those individuals to the services and care
they need upon their release.32
3° Sarah Liebowitz et al.,• Am. CIVIL LIBERTIES UNION OF S. CAL.
& BAZELON CTR. FOR MENTAL HEALTH LAW, A Way Forward:
Diverting People with Mental Illness from Inhumane and
Expensive Jails into Community-Based Treatment that Works
(2014).
31 Alexandra Gates, Health Coverage and Care for the Adult
Criminal Justice-Involved Population, KAISER COMM'N ON
MEDICAID & THE UNINSURED 5-6 (Sept. 2014), https://www.kff.
oreuninsured/issue-brief/health-coverage-and-care-for-theadult-criminal-iustice-involved-pooulation/.
32 Vikki Wachino and Samantha Artiga, How Connecting JusticeInvolved Individuals to Medicaid Can Help Address the Opioid
Epidemic, KAISER FAMILY FOUND. 4-5 (JUNE 2019),
http://files.kfloreattachment/Issue-Brief-How-ConnectingJustice-Involved-Individuals-to-Medicaid-can-Help-Addressthe-Opioid-Epidemic.
16
III. Several Generally Applicable Provisions
in the ACA Are Critical to Providing
People With Disabilities Access to Health
Care.
The ACA contains a number of provisions that
apply equally to all Americans, regardless of disability
status or income, but have been especially valuable—
indeed critical—to ensure that people with disabilities
have access to adequate and affordable health care.
None are dependent on the continued existence of the
minimum-coverage provision.
The current COVID-19 pandemic underscores the
crucial nature of these protections and their
importance to people with disabilities. As the nightly
news reminds us on a daily basis, people with chronic
conditions such as diabetes or weakened immune
systems and people in long-term care facilities or
other institutions are far more likely to be infected
with the virus and far more likely to suffer its most
severe effects.33 In addition, early indications are that
the disease itself and its effects will increase the
33 Priya Chidambaram, State Reporting of Cases and Deaths Due
to COVID-19 in Long-Term Care Facilities, KAISER FAMILY
FOUND. (Apr. 23, 2020), https://www.kff org/medicaid/issuebrief/state-reoorting-of-cases-and-deaths-due-to-covid-19-inlong-term-care-facilities/ (finding that in 29 reporting states,
deaths due to long-term care facilities represent about 27-50% of
COVID-19 related deaths in those states).
17
incidence and severity of physical 34 and cognitive
disabilities as well as increased mental illness.35
A.
Protections for Pre-Existing
Conditions
One of the ACA's central benefits is the protection
it provides to people with pre-existing conditions.36
This requirement protects such individuals from
being denied coverage altogether or from being
charged exorbitant premiums.37
The non-partisan Kaiser Family Foundation
estimates that nationwide, roughly 27% of adults
34 Henk J. Stam, et al.,
Covid- 19 and Post Intensive Care
Syndrome: A Call for Action, 52 J. Rehabil. Med. (Apr. 14, 2020),
https://www.medicaljournals.se/jrm/content/abstract/10.2340/16
501977-2677 (noting that at least 25% of ICU patients experience
a loss of independence, and incidence of poor mobility, frequent
falls, and disability).
35 Id.; see also Sandro Galea, et al., Then Mental Health
Consequences of COVID- 19 and Physical Distancing: The Need
for Prevention and Early Intervention. JAMA Intern Med. (April
10, 2020), https://jamanetwork.com/journals/jamainternal
medicine/fullarticle/2764404 ("In the context of the COVID-19
pandemic, it appears likely that there will be substantial
increases in anxiety and depression, substance use, loneliness,
and domestic violence . ."); Nirmita Panchal, et al., The
Implications of COVID-19 for Mental Health and Substance
Abuse,
KAISER FAMILY FOUND. (Apr. 21, 2020),
https://www.kff.org/health-reform/issue-brief/the-implicationsof-covid-19-for-mental-health-and-substance-use/ (summarizing
early tracking polls of mental health effects related to the
pandemic).
36 See 42 U.S.C. § 300gg-3.
37 Louise Norris, Health Insurance and High-Risk Pools: ACA's
coverage of pre-existing conditions made high-iisk pools obsolete.
Will they be resurrected as an Obamacare replacement?,
HEALTHINSURANCE.ORG (Dec. 10, 2018), https://www.health
insurance. org/obamacare/risk-pools.
18
under the age of 65—totaling 53.8 million
Americans—have a pre-existing condition that
without the ACA could result in the loss of coverage.38
Research conducted before the ACA's passage by the
non-partisan Commonwealth Fund found that 53% of
individuals with health problems who tried to buy
coverage in the individual market found it very
difficult or impossible to find a health plan with the
coverage they needed, compared to 31% of those
without a pre-existing condition.39 In addition, 46%
were denied coverage, charged more, or had benefits
excluded from their plan because of a pre-existing
condition.48
Because many people have disabilities for their
entire lives, they were particularly at risk for losing
insurance coverage on this basis. They also have a
disproportionate need for health insurance, given the
high health care costs associated with certain types of
disabilities. Prior to the ACA, insurers routinely
denied coverage to people with disabilities such as
vision loss, autism, and mental health-related
conditions. In fact, according to a 2012 Government
Accountability Office study, mental health disorders
were the second most commonly reported condition
Pre-Existing Condition Prevalence for
Individuals and Families, KAISER FAMILY FOUND. (Oct. 4, 2019),
https://www.kfforg/health-reform/issue-brief/pre-existingcondition-prevalence-for-individuals-and-families/.
39 Sara R. Collins et al., Help on the Horizon: How the Recession
Has Left Millions of Workers Without Health Insurance, and How
Health Reform Will Bring Relief, THE COMMONWEALTH FUND 4
(Mar. 2011), https://www.commonwealthfund.org/sites/default/
files/documents/ media files publications fund report 2011
mar 1486 collins help on the horizon 2010 biennial survey
report final v2.pdf.
40 id.
38 Gary Claxton et al.,
19
that could result in a denial of coverage, affecting 19
million people nationwide .41
B.
Guaranteed Issue
Prior to the ACA, insurers could effectively deny
coverage to someone because of their disability. The
ACA's guaranteed-issue provision prohibits that. In
general, this provision requires insurers to issue a
health plan to any applicant, regardless of their
health status or disability. Previously, only six states
required insurers to do so.42
The ACA expands that protection to the entire
country and requires each issuer that offers coverage
in the individual or group market to accept every
employer and individual in the state that applies for
it during the operative enrollment periods.43
Though many people with disabilities use public
health insurance programs, access to the private
markets is another important avenue for obtaining
coverage." Prohibiting issuers from refusing to issue
policies to people with disabilities helps expand
private insurance as a viable source of coverage for
them and may serve to reduce reliance on (and thus
save costs for) public programs.
41 U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-12-439, PRIVATE
HEALTH INSURANCE: ESTIMATES OF INDIVIDUALS WITH PREEXISTING CONDITIONS RANGE FROM 36 MILLION TO 122 MILLION
10 (2012), htto s://www. gao. goy/assets/590/589618.p df.
42 KAISER FAMILY FOUND., Health Insurance Market Reforms:
Guaranteed Issue 3 (2012), https://www.kfforg/wo-content/
uploads/2013/01/8327.p df.
43 42 U.S.C. § 300gg-1; 45 C.F.R. § 147.104.
44 Nancy A. Miller et al., The Relation Between Health Insurance
and Health Care Disparities Among Adults with Disabilities, 104
AM. J. OF PUB. HEALTH e85 (2014).
20
C.
Dependent Coverage for Adult
Children
The ACA also requires many health plans to make
dependent child coverage available under a parent's
plan for children up to the age of 26.45 This provision
has improved access to health care for all young
adults, including young adults with disabilities.
The ACA's expanded dependent coverage has
reduced the overall uninsured rate by approximately
20%.46 Studies have shown that "young adults with
health problems and foreseeable health care needs"
have seen greater increases in health coverage as a
result of the ACA's expanded dependent coverage.47
Similarly, "the uninsurance rate among young adults
who may have mental health care needs and seek
treatment declined by [12.4%] because of the
provision."48
The disproportionate benefits for youths with
disabilities are consistent with research showing that
young adults with disabilities on average have lower
rates of coverage, are more likely to lack regular
health care providers, have more unmet health care
needs, receive fewer routine checkups, and have
decreased access to health care than older adults.49
45 42 U.S.C. § 300gg-14.
46 See NAT'L COUNCIL ON DISABILITY, THE IMPACT OF
THE AFFORDABLE CARE ACT ON PEOPLE WITH
DISABILITIES: A 2015 STATUS REPORT 18 (2016),
https://ncd.gov/sites/default/files/NCD ACA Report02 508.pdf
(citing studies).
47 Id. at 20-21.
45 Id. at 21.
49 Catherine A. Okoro et al., Prevalence of Disabilities and Health
Care Access by Disability Status and Type Among Adults—
United States, 2016, 67 MORBIDITY & MORTALITY WKLY. REP.
21
Without the ACA, these disparities would surely grow
even wider, resulting in a reversal of these positive
developments for younger people with disabilities.
D.
Essential Health Benefits
The ACA also mandates a minimum level of
benefits that health plans in the individual and smallgroup markets must provide. The ACA requires all
individual and small-group plans, and all plans sold
in the state exchanges, to cover "essential health
benefits." 50 The ACA defines "essential health
hospitalization,
benefits" to include, inter alia,
outpatient medical care, mental health and substance
abuse treatment, rehabilitative and habilitative
services and devices, and prescription drugs.51 The
ACA grants the Secretary of the Department of
Health and Human Services ("HHS") authority to
further define the benefits included in each benefit
category, and directs the Secretary to ensure that the
scope of "essential health benefits" is equal to the
scope of benefits provided by a "typical employer
plan."52 Notably, HHS must define "essential health
benefits" in a manner that does not discriminate on
the basis of disability or health status or otherwise
discourage people with significant health needs from
enrolling in their plans.53
Of particular importance is the inclusion of
rehabilitative and habilitative services and devices as
essential health benefits. Habilitative services and
882, 886, Table 2 (2018) (examining age cohorts of 18-44, 45-64,
and over 65).
50 42 U.S.C. §§ 18022(b)(1), 300gg-6.
51 Id. § 18022(b)(1).
52 Id. § 18022(b)(2); see 45 C.F.R. § 156.110.
53 42 U.S.C. § 18022(b)(4).
22
devices are provided to help an individual attain new
skills not developed because of a disabling condition
and then maintain or prevent deterioration of such
skills. In contrast, rehabilitative services and devices
are intended to help a person regain, maintain, or
prevent/decrease deterioration of a skill or function
that may have been lost because of a disabling
condition.54 Prior to the ACA, health plans would
typically cover rehabilitative services, such as
occupational, physical, or speech therapy to help
individuals with an accident or illness recover their
ability to walk, speak and function. However,
habilitative services were generally excluded, as
insurers often argued that such services were not
medically necessary if they would not result in
"improvement" or if an individual did not have some
level of functional ability in the first place. Likewise,
habilitative devices include durable medical
equipment, such as walkers, ventilators, wheelchairs
and glucose monitors, which help individuals
maintain their health and live independently.
Another key category of "essential health benefits"
is mental health and substance use disorder services
(collectively, "behavioral health services").55 Prior to
the ACA, 38% of health plans did not provide coverage
for mental or behavioral health care services, and 45%
of health plans did not provide coverage "for substance
abuse disorder services. 56 Though Congress had
required group insurers to provide coverage for
certain behavioral health benefits that was no more
54 See Patient Protection and Affordable Care Act; HHS Notice of
Benefit and Payment Parameters for 2016, 80 Fed. Reg. 10750,
10811 (Feb. 27, 2015) (as codified at 45 C.F.R. § 156.115).
55 42 U.S.C. § 18022(b)(1)(E).
56 Claxton et al., supra note 38, at 2.
23
restrictive than coverage for other medical benefits
covered by the health plan, these requirements did
not translate into comparable coverage for behavioral
health services. 57
The ACA extended the federal parity provisions to
require behavioral health parity in the individual
markets, and the inclusion of behavioral health
services as "essential health benefits" provided
additional strength to the parity requirements.58
E.
Ban on Annual and Lifetime Limits
The ACA also prohibits insurers from imposing
lifetime or annual limits on the amount of essential
health benefits they must cover.59
In the decade before the ACA, the majority (59%)
of workers with employer-provided health plans faced
a cap on lifetime benefits. 60 As a result, health
insurance coverage could discontinue forever once the
57 See 29 U.S.C. § 1185a; 26 U.S.C. § 9812; Kirsten Beronio et al.,
U.S. DEP'T OF HEALTH & HUMAN SERVS., OFFICE OF THE
ASSISTANT SEC'Y FOR PLANNING & EVALUATION, Affordable Care
Act Will Expand Mental Health and Substance Use Disorder
Benefits and Parity Protections for 62 Million AMericans (2013),
https://aspe.hhs.gov/system/files/pdf/76591/rb mental.pdf;
Kirsten Beronio et al., How the Affordable Care Act and Mental
Health Parity and Addiction Equity Act Greatly Expand
Coverage of Behavioral Health Care, 41 J. Behay. Health Serv.
Res. 410 (2014).
58 42 U.S.C. § 300gg-26.
59 45 C.F.R. § 147.126; see also Sarah Kliff, The Obamacare
Provision that Saved Thousands from Bankruptcy, VOX (Mar. 2,
http s://www.vox.com/policv -and-politics/2017/2/15/
2017),
14563182/ob am acare-lifetime-limits-ban.
80 Gary Claxton et al., KAISER FAMILY FOUND. & HEALTH
RESEARCH & EDUC. TR., EMPLOYER HEALTH BENEFITS: 2009
ANNUAL SURVEY 184 (2009), https://www.kff.org/wp-content/
uploads/2013/04/7936.p df.
24
limit had been reached. The ACA now prohibits both
lifetime and annual limits on individual, small group,
and employer coverage for essential health benefits.
This prohibition has profoundly affected people
with disabilities, particularly those who require
lifelong health services. Not surprisingly, people with
disabilities, on average, utilize more health care and
incur more medical expenses than people without
disabilities. 61 The ACA has allowed those with
chronic conditions to find stable insurance coverage
that will not be suddenly and completely exhausted.62
For people with disabilities requiring regular medical
attention, the ACA's ban on lifetime and annual limits
has dramatically reduced the likelihood of them or
their families having to endure otherwise avoidable
personal bankruptcy as a cost of obtaining needed
medical treatment.
F.
Non-Discrimination Requirements
Finally, the ACA expanded protections for disabled
individuals through the expansion of non61 Kennedy et al., supra note 6, at 8, Table 5; Chaiporn Pumkam
et al., Health Care Expenditures Among Working-age Adults with
Physical Disabilities: Variations by Disability Spans, 6
DISABILITY & HEALTH J. 287, 294, Table 4 (2013); see also
Catherine Zaidel et al., Health Care Expenditures and Length of
Disability Across Medical Conditions, 60 J. Occupational and
Envtl. Med. (2018), https://iournals.1ww.com/ioem/Fulltext/2018/
07000/Health Care Expenditures and Length of Disability.9.
aspx ("The authors found that individuals with persistent
disabilities had higher total medical expenditures but lower outof-pocket expenses than those with temporary disabilities.").
62 See Joanne Volk, Affordable Care Act's Ban on Lifetime Limits
Has Ended Martin Addie's Coverage Circus, GEORGETOWN UNIV.
HEALTH POLICY INST. (Nov. 14, 2012), https://ccf.georgetown.edu/
2012/11/14/affordable-care-acts-ban-on-life time-limits-hasended-martin-addies-coverage-circus/.
25
discrimination requirements. Section 1557 of the
ACA adopts and applies existing federal laws that
prohibit discrimination on the grounds of disability,
among others. It applies non-discrimination
provisions broadly to: (1) any health program or
activity, any part of which is receiving federal
financial assistance; (2) any publicly-administered
health program or activity; and (3) the state health
care exchanges created by the ACA.63
In its implementing regulations, Section 1557
specifically prohibits discriminatory health plan
benefit designs, a subtle and insidious form of
discrimination against disabled people.64 An issuer
does so by, among other things, designing a plan that
effectively discourages people with disabilities from
enrolling or limits the scope of coverage in a way that
effectively voids or reduces the benefit that a person
may receive from the insurance. For example, a plan
could exclude certain types of treatment centers from
its provider network, thereby deterring people who
rely on that type of treatment from enrolling in the
plan.65
These provisions provide a powerful protection for
people with disabilities, allowing them to seek redress
from those who may want to exclude them from
63 PPACA § 1557 codified at 42 U.S.C. § 18116.
64 See 45 C.F.R § 155.120(c). Section 1311 of the PPACA also
prohibits discriminatory plan design. PPACA § 1311 codified at
42 U.S.C. § 18031.
65 Elizabeth Guo, et al., Eliminating Coverage Discrimination
Through the Essential Health Benefit's Anti-Discrimination
Provisions, 107 Am. J. Pub. Health 253, 253 (2017), https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC5227931/pdf/AJPH.201
6.303563.pdf.
26
receiving the health care they need or to make it
unfairly cost prohibitive."
The critical importance of the ACA's nondiscrimination requirements has been on full display
in the ongoing COVID-19 crisis, ensuring that access
to scarce medical resources may not be denied because
of the existence or severity of an individual's
disability. Although a number of states' plans for
allocating scarce resources have contained such
discriminatory considerations, following guidance
issued by the HHS Office of Civil Rights and initial
enforcement actions taken, many states are working
with stakeholders to comply with the ACA and other
applicable prohibitions on such discrimination.67
IV.
The ACA's Changes to Medicaid Provide
People With Disabilities Better, and
Sometimes Unprecedented, Access to
Health Care.
The ACA's expansion of Medicaid also foreseeably
and intentionally benefited people with disabilities.
Medicaid is an important source of health insurance
See, e.g., http ://www .chlu org/wp-conte nt/up loads/2013/12/
LA-Humana.pdf (complaint against Humana in Louisiana).
67 See, e.g., Press Release, Office of Civil Rights (HHS), OCR
Reaches Early Case Resolution With Alabama After It Removes
Discriminatory Ventilator Triaging Guidelines (Apr. 8, 2020),
available at https://www.hhs.gov/about/news/2020/04/08/ocrreaches-early-case-resolution-alabama-after-ft-removesdiscriminatory-ventilator-triaging.html; Press Release, Office of
Civil Rights (HHS), OCR Resolves Civil Rights Complaint
Against Pennsylvania After it Revises its Pandemic Health Care
Triaging Policies to Protect Against Disability Discrimination
(Apr. 16, 2020), available at https://www.hhs.gov/about/news/
2020/04/16/ocr-resolves-civil-rights-complaint-againstpennsvlvania-after-it-revises-its-pandemic-health-care.html.
66
27
coverage for such people, and the ACA's
improvements to the Medicaid program—which are
not dependent on the minimum-coverage provision—
have had a substantial impact on their ability to
access much-needed health care services.
A.
Medicaid Eligibility Expansion
Prior to the ACA, there were substantial gaps in
Medicaid coverage that left individuals with
disabilities without necessary services and care. To
qualify for Medicaid, an individual generally had to
have low income and meet one of several eligibility
categories. Low-income children, parents or
caretakers of children, children or adults with
disabilities, and elderly adults were all eligible for
Medicaid, but not all people with low income (and
health care needs) qualified.68
The ACA expanded Medicaid eligibility to include
all adults with income up to 138% of the federal
poverty line.69 Though the Court later ruled that the
expansion of Medicaid was optional and up to
individual states," to date 36 states and the District
of Columbia have expanded Medicaid eligibility to the
limits allowed by the ACA.71
68 42 U.S.C. § 1396a(a)(10)(A)(i); see also CTRS. FOR MEDICARE &
MEDICAID SERVS., U.S. DEP'T OF HEALTH & HUMAN SERVS., BRIEF
SUMMARIES OF MEDICARE & MEDICAID: TITLE XVIII AND TITLE
XIX OF THE SOCIAL SECURITY ACT 24 (2019), https://www.
cms.gov/files/document/brief-summaries-medicare-medicaidnovember-15-2019.pdf.
69 42 U.S.C. § 1396a(e)(14)(I); 42 C.F.R. § 435.603(d)(4).
70
Nat'l Fed'rt of Indep. Bus. v. Sebelius, 567 U.S. 519, 587 (2012).
71 KAISER FAMILY FOUND., STATUS OF STATE ACTION ON THE
httus://www.kfforg/
he alth-reform/state-indica tor/state-activity-arou nd-exu andin gmedicaid-under-the-affordable-care-act.
MEDICAID EXPANSION DECISION (2020),
28
Medicaid eligibility based solely on income is
especially important for individuals with disabilities
because it generally provides faster and more certain
access to health insurance coverage, without being
required to go through the delay and uncertainty of
obtaining a formal disability determination for
eligibility.72 Moreover, Medicaid's narrow definition
of "disability" is notoriously underinclusive of many
people with chronic conditions and functional
limitations who need health care services and support
to access employment and to participate in their
communities.
Of all the changes brought about by the ACA,
Medicaid expansion has most directly and
substantially increased health care coverage for
people with disabilities.73 Research has shown that
the expansion of Medicaid under the ACA has
especially benefitted various marginalized
populations, resulting in more people with health care
coverage in expansion states as compared to the
general population.74 The ACA's Medicaid expansion
is responsible for the largest portion of the decrease in
72 See Molly O'Malley Watts et al., Medicaid Financial Eligibility
for Seniors and People with Disabilities in 2015, KAISER COMM'N
ON MEDICAID & THE UNINSURED, 10 (2016),
http://files.kfforg/attachment/report-medicaid-financialeligibility-for-seniors-and-people-with-disabilities-in-2015;
MaryBeth Musumeci, The Affordable Care Act's Impact on
Medicaid Eligibility, Enrollment, and Benefits for People with
Disabilities, KAISER COMM'N ON MEDICAID & THE UNINSURED
(2014),
http s://www. kff. or g/wu -conte nt/up loads/2014/04/839002-the-affordab le-care-acts-imp act-on-me dicaid-eligibility.p df.
73 Stephan Lindner et al., "Canaries in the mine...':• The Impact
of Affordable Care Act Implementation on People with
Disabilities: Evidence from Interviews with Disability Advocates,
11 DISABILITY & HEALTH J. 86, 89 (2016).
74 Antonisse et al., supra note 23, at 3.
29
the percentage of people with disabilities who are
uninsured, with 42.9% receiving insurance from
Medicaid in 2017, an increase from 34.9% in 2009.75
B.
Long-Term Care Services and
Supports
The ACA also provided additional flexibility for
Medicaid to cover long-term services and supports
("LTSS"), which are often necessary to provide people
with disabilities with services they and their families
need. Crucially, the ACA encourages rebalancing
Medicaid to provide appropriate LTSS in the
individual's own homes and communities rather than
in institutions, as many people with disabilities
strongly prefer—and as is their right under this
Court's decision in Olmstead v. L. C.76 and under the
ACA. The prospect of allowing people with disabilities
to routinely receive care in their homes or
communities rather than institutions has particular
poignancy now, when a disproportionate percentage of
COVID-19 deaths originate in institutionalized
populations.77
"LTSS" refers to a variety of health and social
services that assist people with functional limitations
caused by chronic conditions or disabilities to live
independently in their homes and communities.
LTSS includes assistance with activities of daily
living (e.g., eating, bathing, and dressing) and
instrumental activities of daily living (e.g.,
housekeeping, preparing meals, and managing
medication). While LTSS can be provided informally
75 2017 DSR, supra note 3, at 56.
76 527 U.S. 581 (1999).
77 Chidambaram, supra note 33.
30
by unpaid caregivers such as family or friends, it may
also be provided formally by paid caregivers.
Traditionally, LTSS was provided in an
institutional setting (e.g., a nursing home), but there
has been a shift to providing it in the individual's
home or in community-based settings (e.g., personal
care assistant may come to one's private home or a
group home), so as to afford individuals the choice to
Under the ADA,
live in their communities.
individuals with disabilities have the civil right to
choose to receive LTSS in the community, rather than
in an institutional setting, where appropriate.78
People with disabilities of all ages are the primary
population served by LTSS.79 Medicaid is the primary
payer for LTSS as other public and private health
insurers do not offer such coverage." All states are
78 See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607 (1999);
42 U.S.C. § 12101 et seq.
DEP'T OF HEALTH & HUMAN SERVS., OFFICE OF THE
ASSISTANT SEC'Y FOR PLANNING & EVALUATION, AN OVERVIEW OF
LONG-TERM SERVICES AND SUPPORTS AND MEDICAID: FINAL
REPORT 5 (2018), httb s://asbe.hhs gov/sv ste m/file s/p df/259521/
79 U.S.
LTSSMedicaid.pdf ("LTSS and Medicaid Report").
80 Erica L. Reaves & MaryBeth Musumeci, Medicaid and Long-
Term Services and Supports: A Primer, KAISER FAMILY FOUND. 3
(Dec. 2015), http://files.kfforg/attachment/report-medicaid-andlong-term-services-and-sup orts -a-p rimer ; see also Emily
Rosenoff et al., An Overview of Long-Term Services and Supports
and Medicaid: Final Report, U.S. Department of Health and
Human Services Assistant Secretary for Planning and
Evaluation Office of Disability, Aging and Long-Term Care
Policy (May 2018) https://aspe.hhs.gov/basic-report/overviewlong-term-services-and-subports-and-medicaid-final-rebort
("Medicaid is the primary payer of LTSS"); Kaiser Family
Found., Medicaid's Role in Meeting Seniors' Long-Term Services
and Supports Needs (Aug. 2, 2016) https://www.kff.org/medicaid/
fact-sheet/medicaids-role-in-meeting-seniors-long-term-
31
required to provide coverage under Medicaid for
nursing facility services, but home and community
based services ("HCBS") coverage is optional. 81
Medicaid LTSS expenditures include services and
supports for seniors and people with a wide range of
physical, intellectual, developmental, and mental
disabilities.82
The ACA provides new and expanded options for,
states to offer LTSS in home and community-based
settings to Medicaid beneficiaries." That option is
not only preferred by most people with disabilities but
is also more cost-efficient than institutional services.84
A number of new programs created by the ACA
expand eligibility for and provide increased access to
home and community based care.
1.
State Plan Home and Community
Based Services Option
States have had the option to include home- and
community-based services in their state Medicaid
services-and-supports-needs/ ("Medicaid is the nation's primary
payer for LTSS for people with low incomes and is likely to
continue to play a key role as LTSS financing reforms are
considered.").
81 LTSS and Medicaid Report, supra note 79.
82 Id. at 1.
83 See 42 U.S.C. § 1396n.
84 See, e.g., Arpita Chattopadhyay et al., Cost-efficiency in
Medicaid Long-term Support Services: The Role of Home and
Community Based Services, 2 SPRINGERPLUS 1 (2013),
see
htto s://www.ncbi.nlm.nih. gov/p mc/article s/PM C3710567;
also Mary Sowers, et al., Streamlining Medicaid Home and
Community-Based Services: Key Policy Questions, KAISER
FAMILY FOUND: (Mar. 11, 2016) httns://www.kff.org/medicaid/
issue-brief/stre amlining-medicaid- home-and-community-base dservices-key-policy- questions (noting "the typically lower cost of
HCBS relative to institutional care").
32
plans without a waiver since 2005. However, the ACA
expanded financial eligibility for HCBS and allowed
states to target specific populations for coverage. 85
States could provide full Medicaid benefits, as well as
home and community based services, to individuals
who are not otherwise eligible for Medicaid and who
meet certain financial and functional eligibility
criteria. 86 These provisions benefit children and
adults with significant mental health needs and
people with intellectual and developmental
disabilities.
2.
Community First Choice Option
The ACA also created the Community First Choice
Option, which allows applicant states to provide home
and community based services to Medicaid enrollees,
and increased the federal share of funding available
to participating states by 6%.87 States can provide
these services to individuals who are eligible for the
state's Medicaid program and whose income does not
exceed 150% of the federal poverty line. Alternatively,
if the individual's income is higher than this threshold
but the individual has been determined to require an
institutional level of care and is eligible for nursing
facility services, then the individual is also eligible for
HCBS.88
85 42 U.S.C. § 1396n.
86 42 U.S.C. § 1915(i). Under the ACA, states can cover: (1)
people up to 150% of the federal poverty line with no asset limit
who meet functional eligibility criteria and who will receive
HCBS; and/or (2) people up to 300% SSI who would be eligible
for Medicaid under an existing HCBS waiver and will receive
state plan HCBS. Watts, supra note 72, at 9.
87 42 U.S.C. § 1396n(k).
88 42 U.S.C. § 1396n(k)(1).
33
For states with waiting lists of children in need of
services, the ACA creates opportunities for them to
expand their home and community care programs.89
Five states have implemented the Community First
Choice Option: California, Maryland, Montana,
Oregon, and Texas.99 Texas, for instance, now covers
assistance with activities of daily living and
household assistance, "habilitation" services that help
people learn to accomplish daily living activities more
independently, emergency response services, and
service coordination in an individual's home or
community.91
The Medicaid waiver programs provide coverage
for services, such as independent living skills, that are
important for individuals with disabilities and can
mean the difference between institutionalization or
continuing to live in one's home.92 Invalidating the
ACA would not only obscure the legal obligation for
Helping Those on HCBS Waiting Lists:
Positive Impacts of the ACA, NAT'L HEALTH LAW PROGRAM 4-5
(Feb. 14, 2017), http s://healthlaw.org/wo -content/uploads/2017/
02/HCBS-ACA-WaitingListsFinal.pdf; see also MaryBeth
Musumeci, Priya Chidambaram, and Molly O'Malley Watts,
Questions About Medicaid Home and Community-Based Services
Waiver Waiting Lists, Kaiser Family Foundation (Apr. 4, 2019),
htti3s://www.kff.org/medicaid/issue-b rief/key-o ue stions-abo utme dicaid-home-and-community-b ased-se rvice s-waiver-waitinglists/.
9° Medicaid.gov, Community First Choice (CFC) 1915 (k),
h ttp s://www. medicaid. gov/me dicaid/home-com munity-b ase dservices/home-community-based-services-authorities/
community-first-choice-cfc-1915-k/index.html (last visited Apr.
22, 2020).
91 Texas Health & Human Servs., Community First Choice,
htto s://hhs. texas. gov/services/he alth/me dicaid-thio/oro gramsservices/community-first-choice (last visited May 4, 2020).
92 Lindner et al., supra note 73, at 89.
89 Elizabeth Edwards,
34
states to meet the needs and expressed desires of
disabled people, but would also decrease the options
available for states to meet these obligations. 93 It
would also eliminate federal statutory authority to
approve and implement innovative programs that
have provided much-needed LTSS to individuals with
disabilities who are covered by Medicaid.
C.
Behavioral Health Parity
As set forth in Section III.D, behavioral health
services were generally not covered by private health
insurance.94 The ACA expanded their availability by
requiring behavioral health services to be included in
Medicaid to the same extent as other medical benefits
and to be provided to Medicaid-expansion adults and
other adult populations.95 This, too, is a substantial
benefit to people with disabilities that invalidation of
the ACA would remove.
* * *
Taken together, the ACA's provisions have
transformed the lives of people with disabilities. As
Congress intended, the ACA has increased the
availability of comprehensive health care, allowing
those who previously did not have coverage to gain
access to essential health services and supports. It
has increased the affordability of coverage,
significantly expanded access to and quality of
services, and decreased healthcare disparities.
Invalidating the ACA now would reverse all these
gains and disproportionately harm an already
marginalized group of Americans. Congress would
Edwards, supra note 89, at 4.
Claxton et al., supra note 38.
95 42 U.S.C. § 1396u-7.
93
94
35
not have wanted to take away what it worked so hard
to provide to people most in need. Therefore, should
the Court deem the minimum-coverage provision
invalid, it should sever it to preserve the remainder of
the statute and the substantial benefits it provides to
people with disabilities.
CONCLUSION
For the foregoing reasons, amici respectfully
suggest that the Court should reverse the holding of
the Fifth Circuit.
Respectfully submitted,
Mark P. Johnson
Counsel of Record
Wade P. K. Carr
DENTONS US LLP
4520 Main Street
Suite 1100
Kansas City, MO 64111
(816) 460-2400
mark.johnson@dentons.com
wade.carr@dentons.com
Bruce Merlin Fried
DENTONS US LLP
1900 K St., N.W.
Washington, D.C. 20006
(202) 496-7961
bruce.fried@dentons.com
36
Charles A. Luband
Claire E. Bornstein
DENTONS US LLP
1221 Avenue of the Americas
New York, NY 10020
(212) 376-7800
charles.luband@dentons.com
claire.bornstein@dentons.com
Elizabeth B. McCallum
BAKER & HOSTETLER LLP
Washington Square
1050 Connecticut Ave, N.W.
Suite 1100
Washington, DC 20036
(202) 861-1500
emccallum@bakerlaw.com
Jennifer Mathis
The Judge David L. Bazelon
Center For Mental Health Law
1101 15th St., N.W., Suite 121
Washington, D.C.
(202) 476-5730
jenniferm@bazelon.org
Silvia Yee
Carly A. Myers
Disability Rights Education
and Defense Fund
3075 Adeline Street, Suite 210
Berkeley, CA
(510) 644-2555
syee@dredf.org
cmyers@dredf.org
37
David D. Cole
American Civil Liberties Union
125 Broad St.
New York, NY 10004
(212) 549-2611
dcole@aclu.org
Susan Mizner
American Civil Liberties Union
39 Drumm Street
San Francisco, CA 94111
(415) 343-0781
smizner@aclu.org
Counsel for the American
Association of People With
Disabilities, Paralyzed Veterans
of America, Judge David L.
Bazelon Center for Mental
Health Law, Disability Rights
Education and Defense Fund,
and 15 Other Leading National
Disability Rights Organizations
May 13, 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.