Amicus Curiae Brief — King v. Burwell, 135 S. Ct. 475 (2014) (No. 14-114)

Supreme Court, U.S.

FILED

JAN 28 2015

No. 14-114 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

DAVID KING, et al.,

Petitioners,

Vv.

SYLVIA MATHEWS BURWELL, AS UNITED STATES

SECRETARY OF HEALTH AND HUMAN SERVICES, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE HARVARD LAW SCHOOL

CENTER FOR HEALTH LAW AND POLICY

INNOVATION, ET AL. IN SUPPORT OF

RESPONDENTS

MARK C. FLEMING

Counsel of Record

RICHARD A. JOHNSTON

RACHEL L. GARGIULO

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

mark.fleming@wilmerhale.com

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

TABLE OF CONTENTS

REVERSAL OF THE JUDGMENT BELOW

WOULD DEPRIVE MILLIONS OF RE-

CENTLY INSURED AMERICANS OF NEW-

FOUND AcCESS TO HEALTH INSUR-

ANCE, SERIOUSLY THREATEN HEALTH

OUTCOMES, AND UNDERMINE THE NA-

TION’S ABILITY TO ADDRESS EPIDEM-

IcS AND OTHER PUBLIC HEALTH

yea RSE Aer Nene to cee Ee RO 5

A. The ACA’s Provision Of Federal

Subsidies In All States Has Dra-

matically Improved Health Insur-

ance Access And Is Integral To The

Act’s Insurance Market Reforms

¥

The ACA’s subsidies have

yielded unprecedented gains in

insurance access among middle-

and low-income households ..............

The subsidies are integral to

maintaining insurance market

reforms for all exchange par-

Insurance access gains and

market reforms in most States

would be lost if the decision

below 18 TE VETSCM ........cccccccccccccescesecees

(i)

SHES HK OREO Ee

li

TABLE OF CONTENTS—Continued

B. Loss Of Affordable Health Insur-

ance Generally Means Worse

SRLS TERES RRS SEN nee 8 Ie re aS 14

C. The Subsidies’ Positive Effect On

Health Insurance Access Promises

To Improve The Nation’s Ability

To Fight Epidemic Illnesses, In-

I CET eitisniciicncisninitsddnsiniiniiinineiniaiienbsnabicsimsbeconaiine 19

1. HIV remains a serious public

health threat, and insufficient

insurance undermines HIV

care and treatment .............:cccceceeeesseeeeeeeree 19

2. Massachusetts’s improvement

in HIV health outcomes

demonstrates the _ effective-

ness of expanded health insur-

ance coverage in fighting the

I eceentsicrinicavictinnsitatiesnntinnnietainnnneneiennan 24

3. Reversal of the judgment be-

low would undermine the Na-

tion’s ability to address future

epidemics and other emerging

public health threats...........cccccseseeeerenees 27

CTE FEI seccasnissescatncietecermnesinicenencinammmnssannsenneneteitie 30

iii

TABLE OF AUTHORITIES

CASES

National Federation of Independent

Business v. Sebelius, 132 S. Ct. 2566

42 U.S.C.

§§ 18081-18082

Patient Protection and Affordable Care

Act, Pub. L. No. 111-148, 124 Stat. 119

OTHER AUTHORITIES

Abara, Winston, & Harry J. Heiman, The

Affordable Care Act and Low-Income

People Living With HIV: Looking

Forward in 2014 and Beyond, 25 J.

Ass’n Nurses in AIDS Care 476 (2014)

Bagley, Nicholas, et al., Predicting the

Fallout from King v. Burwell—

Exchanges and the ACA, 372 New

Enng. J. Med. 101 (2015)......cscscssessseessseeesseees

SEE EEE EEE EEE EEE EEE SEER EEE EEE SESE EHS SHH HH HHT ee

SOC SEES EEE EEE EEE EEE HETERO eee

2 BARES een oe oe

Fe iiiceinsditesimisniadannsecnindadintatobininaiinisions

ND stensicicresnicbniispncicaiceniiteinsaiiliiaiannniseni

iv

TABLE OF AUTHORITIES—Continued

Blumberg, Linda J., et al., Characteristics

of Those Affected by a Supreme Court

Finding for the Plaintiff in King v.

Burwell (Jan. 2015), available at

http://www.urban.org/U ploadedPDF/

2000078-Characteristics-of-Those-

Affected-by-King-v-Burwell.pdf.................

Blumberg, Linda J., et al, The

Implications of a Supreme Court

Finding for the Plaintiff im King v.

Burwell (Jan. 2015), available at

http//www.urban.org/UploadedPDF/

2000062-The-I mplications-King-vs-

Bordelon, Austin, et al., The Stage is Set:

Predicting State and _ Federal

Reactions to King v. Burwell (Jan.

2015), available at http://assets.fierce

markets.net/public/healthcare/leavitt-

partners-king-v-burwell. pdf ................:0000:

Boutwell, Amy E., & Jonathan Freedman,

Coverage Expansion and the Justice-

Involved Population: Implications for

Plans and Service Connectivity, 33

Health Affairs 482 (2014) .......--....:cceeceeseeees

Bovbjerg, Randall R., & Frank C. Ullman,

Recent Changes in Health Policy for

Low-Income People in Massachusetts,

17 Urban Institute State Update 1

Page(s)

Ras Teed id 13

v

TABLE OF AUTHORITIES—Continued

Page(s)

Bradley, Heather, et al., Vital Signs: HIV

Diagnosis, Care, and _ Treatment

Among Persons Living with HIV—

United States, 2011, 63 Morbidity &

Mortality Wkly. Rep. 1113 (2014) .....0....... 19, 20

Cohen, Myron S., et al., Prevention of HIV-

1 Infection with Early Antiretroviral

Therapy, 365 New Eng. J. Med. 493

EID shtiehenipatdnddiecasnisassatbncddcctupateneiucabnidtam meme 20

Cohen, Robin A., et al., Strategies Used by

Adults to Reduce their Prescription

Drug Costs, 119 NCHS Data Brief

(2013), available at http://www.cdc.

gov/nchs/data/databriefs/db119.pdf.............00......... 17

Cohen, Stacey M., et al., Vital Signs: HIV

Prevention Through Care’ and

Treatment— United States, 60

Morbidity & Mortality Wkly. Rep. 1618

___, | RR Ono RED SSSt.., VAD Rieter SANT 26

Committee on Energy and Commerce,

Minority Staff, District-by-District

Impact of a Potential Supreme Court

Ruling Against Affordable Care Act

Federal Exchange Tax Credits (Dec.

2014), available at http://democrats.

energycommerce.house.gov/sites/default/

files/documents/Fact-Sheet-District-By-

District-King-vs-Burwell-Impacts-2014-

vi

TABLE OF AUTHORITIES—Continued

Eibner, Christine, & Evan Saltzman,

Assessing Alternative Modifications to

the Affordable Care Act: Impact on

Individual Market Premiums and

Insurance Coverage (2014), available at

http://www.rand.org/content/dam/rand/

pubs/research_reports/R R700/RR708/

RAND_RR7OB.pdf..e.sccsssssscsssessesceccccssesecensee

Goldman, Dana P., et al. Effect of

Insurance on Mortality in an HIV-

Positive Population in Care, 96 J. Am.

Statistical Ass’n 883 (2001) .................0..0000-.

Goldman, Dana P., et al., The Prospect of a

Generation Free of HIV May Be

Within Reach if the Right Policy

Decisions Are Made, 33 Health Affairs

ERR SESE SR aie Renee ne cocnes eee

Grewal, Andy S., How King v. Burwell

Creates Tax Problems for 2014-2015

Health Care Enrollees, 32 Yale J. on

Reg. Online (forthcoming), available at

http://papers.ssrn.com/sol3/papers.cfm?

abstract_id=2525951 (last visited Jan. 27,

Hall, Mark A., & Richard Lord, Obamacare:

What the Affordable Care Act Means

for Patients and Physicians, BMJ 1

(2014), available at http://www.bmj.

com/content/349/bm)j.g5376............-ccceseeees

Page(s)

jaieanield 1]

Vil

TABLE OF AUTHORITIES—Continued

Page(s)

Hall, Mark A., Disingenwous: The Latest

Legal Challenges to Insurance Market

Reforms, 44 Hastings Ctr. Rep. 6 (2014) .................

Hamel, Liz, et al., Survey of Non-Group

Health Insurance Enrollees: A First

Look At People Buying Their Own

Health Insurance Following Imple-

mentation of the Affordable Care Act

(2014), available at https://kaiserfamily

foundation.files.wordpress.com/2014/06/

survey-of-non-group-health-insurance-

enrollees-findings-final 1 pdf ................ccccceceeeeeeeeeeees

Harvard Law School Center for Health

Law and Policy Innovation, Massachu-

setts Case Study: Health Reforms in

Conjunction with the Ryan White

Program Lead to Improved Individual

and Public Health Outcomes and Cost

Savings (May 2014), available at http://

www.chipi.org/wp-content/uploads/2014/

01/CHLPI-MA-Case-Study_5-28-14.pdf.........00.......

Harvard Law School Center for Health

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setts Case Study: Health Reforms Lead

to Improved Individual and Public

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(June 2012), available at http://www.

law.harvard.edu/academics/clinical/sc/

documents/FACT_SHEET_%20MA_

Case_Study_on_Health_Reforms6-27-

Vili

TABLE OF AUTHORITIES—Continued

HHS, Office of the Assistant Secretary for

Planning and Evaluation, Health

Insurance Marketplace 2015 Open

Enrollment Period: December

Enrollment Report (Dec. 2014),

available at http-//aspe.hhs.gov/health/

reports/2014/MarketPlaceEnrollment/

Dec2014/ib_2014Dec_enrollment.pdf ...........

Holman, Jeremy, et al., Massachusetts and

Southern New Hampshire HIV/AIDS

Consumer Study (June 2011), available

at http://www.mass.gov/eohhs/docs/dph/

aids/consumer-study-june-201 1.pdf..............

Institute of Medicine, A Shared Destiny:

Community Effects of Uninsurance

(2003), available at http://www.iom.

edu/Reports/2003/A-Shared-Destiny-

Community-Effects-of-Uninsurance.

Institute of Medicine, America’s Uninsured

Crisis: Consequences for Health and

Health Care (2009), available at http:-//

www.iom.edu/Reports/2009/A mericas-

Uninsured-Crisis-Consequences-for-

Health-and-Health-Care.aspx ..................000++

Page(s)

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Jost, Timothy, Implementing Health

Reform: A Summary Health Insurance

Marketplace Enrollment Report,

Health Affairs Blog (May 1, 2014),

available at _ http://healthaffairs.org/

blog/2014/05/01/implementing-health-

reform-a-summary-health-insurance-

marketplace-enrollment-report ..............cccceeeeeeeeeeeeees 6

Kaiser Commission on Medicaid and the

Uninsured, The Uninsured: A Primer:

Key Facts About Health Insurance on

the Eve of Health Reform (2013),

available at http://files.kff.org/

attachment/the-uninsured-a-primer-

key-facts-about-health-insurance-and-

the-uninsured-in-america-primet ................++ 16, 17

Kates, Jennifer, et al., Assessing the

Impact of the Affordable Care Act on

Health Insurance Coverage of People

with HIV (2014), available at https://

kaiserfamilyfoundation.files.wordpress.

com/2013/12/8535-assessing-the-

impact-of-the-affordable-care-act-on-

health-insurance-coverage. pdf .............ccsccseeseeeeeeeenee 21

Levi, Jeffrey, et al., Outbreaks: Protecting

America From Infectious Diseases

(Dec. 2014), available at http://healthy

americans.org/assets/files/Final%20

Outbreaks%202014%20Report. pdf ................. eee 28

Xx

TABLE OF AUTHORITIES—Continued

Levitt, Larry, & Gary Claxton, The

Potential Side Effects of Halbig (July

31, 2014), available at http://kff.org/

health-reform/perspective/the-

potential-side-effects-of-halbig’ ...................

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Si caisieuaehindiiauininenanntemensessstinesenpnensessansenssosseseonsees

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Preventive Services in U.S. Health

Care Could Save Lives At Little Or No

Cost, 29 Health Affairs 1656 (2010) .............

McManus, Kathleen A., et al., Current

Challenges to the United States’ AIDS

Drug Assistance Program = and

Possible Implications of the Affordable

Care Act, 2013 AIDS Res. &

a csienenenens

McMorrow, Stacey, et al., Determinants of

Receipt of Recommended Preventive

Services: Implications for _ the

Affordable Care Act, 104 Am. J. Pub.

it a ectenecerescnsnastnvesenieseeesenensccoots

Mugavero, Michael J., et al., The State of

Engagement in HIV Care in the

United States: From Cascade to

Continuum to Control, 57 Clinical

Infectious Diseases 1164 (2013)...................

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=e 20, 21

xi

TABLE OF AUTHORITIES—Continued

Reeve, Megan, et al., The Impacts of the

Affordable Care Act on Preparedness

Resources and Programs: Workshop

I Ge cintriccnseinntianntenneninmiainiiane

Riley, Elise D., Population-Level Effects of

Uninterrupted Health Insurance On

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Unstably Housed Adults, 23 AIDS

ON i aa

Saltzman, Evan, & Christine Eibner, The,

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Snider, Julia Thornton, et al., Nearly 60,000

Uninsured and Low-Income People

with HIV/AIDS Live in States that are

not Expanding Medicaid, 33 Health

REIS GG Ga cccceecetitinsinitntsiiaissecininnsiinnee

Sommers, Benjamin D., et al., Changes in

Mortality After Massachusetts Health

Care Reform, 160 Annals of Internal

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21, 22, 27

GS. SE GD cscecieniniccistivcieinaniinniminain 15, 16, 25, 27

Sommers, Benjamin D., et al., Mortality

and Access to Care among Adults after

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Bing. J. MOG. 1GRD CIGD). ..wnccerreceecccocesecsessesse

Gi

TABLE OF AUTHORITIES—Continued

Page(s)

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Improvements in Health Status after

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Vinter, Serena, et al., Public Health

Preparedness in a Reforming Health

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ERR ee SP eee 5 OE en ee 29

Wagner, Zachary, et al., The Affordable

Care Act May Increase the Number of

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Nearly 500,000 by 2017, 33 Health

ee Ce Ce iirteteceittebiecciiteestasniiliniiaininietitrmapensinnin 27

INTEREST OF AMICI CURIAE'

Amici are the Harvard Law School Center for

Health Law and Policy Innovation; ADAP Advocacy

Association; AID Atlanta, Inc.; AIDS Action Coalition

of Huntsville; AIDS Action Committee of Massachu-

setts; AIDS Alabama; AIDS Foundation of Chicago;

AIDS Institute; AIDS Project Los Angeles; AIDS

Resource Center of Wisconsin; AIDS Resource Center

Ohio; AIDS United; American Academy of HIV Medi-

cine; Association of Nurses in AIDS Care; Caracole,

Inc.; Cascade AIDS Project; Center for HIV Law and

Policy; Christie’s Place; Colorado Organizations Re-

sponding to AIDS; Community Access National Net-

work; Community Catalyst; Duke AIDS/HIV and

Cancer Legal Project; Equality New Mexico; Gay

Men’s Health Crisis; God’s Love We Deliver; Health-

HIV; HIV Medicine Association; Illinois Coalition for

Immigrant and Refugee Rights; Justice Resource In-

stitute; Legacy Community Health Services; Lifelong;

Los Angeles LGBT Center; Michigan Consumers for

Healthcare; Nashville CARES; National Alliance of

State and Territorial AIDS Directors; New Hamp-

shire Voices for Health; NJ For Health Care;

NO/AIDS Task Force; North Carolina AIDS Action

Network; Ohio Public Health Association; Positive

Women’s Network Colorado; Pozitively Healthy Coali-

tion; Project Inform; Southern HIV/AIDS Strategy

By letters on file with the Clerk, all parties have consented

to the filing of this brief. Pursuant to Supreme Court Rule 37.6,

amici state that no counsel for a party authored this brief in whole

or in part; no counsel or party made a monetary contribution in-

tended to fund the preparation or submission of this brief; and no

person—other than 2:::\ci, their members, or their counsel—made

such a monetary contribution.

2

Initiative; UHCAN Ohio; Whitman-Walker Health;

and Women’s Collective.

While each amicus has its own particular mission,

they collectively serve populations that are deeply af-

fected by the availability of federal subsidies under the

Patient Protection and Affordable Care Act, Pub. L.

No. 111-148, 124 Stat. 119 (2010). Several amici are

dedicated to addressing the needs and interests of peo-

ple living with HIV and AIDS, and all amici have can

speak to the harmful consequences that would result

from a reversal in this case.

Amici write: (1) to demonstrate that Congress’s

provision in the ACA of federal subsidies to people who

have gained access to insurance on the federal ex-

changes accomplishes Congress’s goal of achieving

near-universal coverage and improving the Nation’s

health; (2) to explain the harms—to vulnerable popula-

tions, middle- and low-income households, and higher-

earning households alike—that Petitioners’ erroneous

interpretation of the ACA would cause; and (3) to ex-

plain the negative effect that Petitioners’ proposed in-

terpretation of the ACA would have on the national

ability to respond to public health threats, such as the

HIV epidemic, the Ebola virus, pandemic flu, or other

as-yet unanticipated public health crises.

SUMMARY OF ARGUMENT

One of the central pillars of the ACA is Congress’s

creation of health insurance exchanges, which expand-

ed access to the private individual health insurance

market for households that do not receive employer-

sponsored or public health insurance coverage. 42

U.S.C. § 18091(2)(D), (1I)-{J). As the Act’s structure

demonstrates, Congress understood that ensuring na-

3

tionwide access to affordable health insurance requires

eliminating discriminatory practices, mandating cover-

age to achieve broad insurance risk pools, and extend-

ing subsidies to middle- and low-income Americans who

cannot afford to purchase coverage on their own. To-

gether, the ACA’s insurance market reforms, individu-

al mandate, and subsidies have yielded the Act’s core

achievement: transforming the private health insurance

markets in all 50 States and the District of Columbia

such that nearly all Americans now have access to

health insurance.

The government persuasively demonstrates, and

the court of appeals correctly held, that the language,

structure, and purpose of the Act reveal Congress’s

aim to permit the use of federal subsidies even in

States that decline to establish State exchanges.

Those arguments will not be repeated here. Amici

write to explain that it makes eminent sense that

Congress would have provided for such a scenario, and

that available data show that the ACA is accomplish-

ing Congress’s goal of achieving “near-universal” ac-

cess to quality health insurance coverage. 42 U.S.C.

§ 18091(2)(D). Early results include dramatic expan-

sions of health insurance access among middle- and

low-income households and significant reforms in the

private insurance market that benefit exchange par-

ticipants of all income levels nationwide. Health in-

surance plans are now more comprehensive, premium

prices have remained stable, and discriminatory insur-

ance coverage practices are prohibited.

Importantly, increased access to health insurance

benefits not only the newly insured, but the Nation as a

whole, as Congress intended. This brief reports evi-

dence of both types of success. First, Congress’s

achievement of its goal is reflected in accounts of indi-

4

viduals and families whose lives are transformed be-

cause—through the subsidies available in all States—

they can now obtain the health care they need and are

less subject to financial insecurity. Second, the ACA’s

expansion of health insurance access in all States prom-

ises to improve the national ability to respond to epi-

demics and other large-scale public health threats, just

as health insurance access improved the ability of

States with broad health insurance to combat the HIV

epidemic.

The negative results of a reversal in this case go

well beyond “adverse policy consequences.” Pet. Br.

15. Rather, the evidence shows that Petitioners’ pro-

posed interpretation of the ACA would render a sig-

nificant provision of the Act ineffective in a majority

of States. There is no reason to interpret the Act to

render the federal exchanges inoperative, depriving

millions of people of access to the health insurance on

which they now depend, when Congress plainly in-

tended to bring about the very improvements in indi-

vidual, familial, and national health care that the ACA

has provided when interpreted as the Internal Reve-

nue Service and the Fourth Circuit have interpreted

it. This Court should affirm the judgment of the court

of appeals.

oD

ARGUMENT

REVERSAL OF THE JUDGMENT BELOW WOULD DEPRIVE

MILLIONS OF RECENTLY INSURED AMERICANS OF NEW-

FounD ACCESS TO HEALTH INSURANCE, SERIOUSLY

THREATEN HEALTH QUTCOMES, AND UNDERM'NE THE

NATION'S ABILITY TO ADDRESS EPIDEMICS AX OTHER

PUBLIC HEALTH THREATS

A. The ACA’s Provision Of Federal Subsidies In

All States Has Dramatically Improved Health

Insurance Access And Is Integral To The

Act’s Insurance Market Reforms

The ACA’s overall impact on the U.S. health care

landscape cannot yet be definitively assessed, but the

Act has already transformed the private individual

health insurance markets nationwide by significantly

expanding access among middle- and low-income

households and by reforming these markets for all par-

ticipants. But if individuals and families in 34 States

lose access to federal subsidies—as Petitioners would

have it—then health insurance would once again be-

come unaffordable for many, and the federal health in-

surance exchanges would likely collapse. As a result,

the individuals and families who have gained so much

under the Act would personally suffer the consequenc-

es: Millions of middle- and low-income households

would lose access to health insurance altogether, and

millions more would have to pay significantly higher

premiums to maintain coverage.

1. The ACA’s subsidies have yielded un-

precedented gains in insurance access

among middle- and low-income house-

holds

Before the ACA’s premium subsidies, middle- and

low-income Americans had great difficulty obtaining

6

affordable health insurance coverage. Millions of

households could not access affordable health insurance

through their employer, were ineligible for Medicaid

and Medicare, and were excluded by—or simply could

not afford—plans offered on the private individual

market. See Hall & Lord, Obamacare: What the Af-

fordable Care Act Means for Patients and Physicians,

BMJ 1, 2 (2014). The 2014 launch of the ACA’s health

insurance exchanges brought a sea change, as every

household with an income between 100 and 400 per-

cent of the Federal Poverty Level (FPL) (between

$11,670 and $46,680 for an individual, and between

$23,850 and $95,400 for a family of four in 2014) could

access comprehensive health insurance, regardless of

employment, place of residence, or health status.

Notwithstanding a rollout plagued by technical difficul-

ties, 8 million people nationwide enrolled in exchange

health plans during the 2014 open enrollment period,

with over 6.7 million individuals (85 percent) obtaining

access to affordable insurance through subsidies. Jost,

Implementing Health Reform: A Summary Health In-

surance Marketplace Enrollment Report, Health Af-

fairs Blog (May 1, 2014).

The transition from being uninsured or underin-

sured to being adequately insured with the help of fed-

eral subsidies can be life-changing. For example, Phil

Sherburne, 43, and his wife Leia Bell, 37, own a small

business in Salt Lake City.? Because of a preexisting

shoulder injury, Mr. Sherburne had been unable to ac-

cess affordable insurance through the individual mar-

* The personal accounts reported in this brief were obtained

through personal interviews conducted by the Harvard Law

School Center for Health Law and Policy Innovation and are used

with permission of the individuals involved.

7

ket for himself, his family, or the employees of his small

business. Many insurers denied him family and small-

group coverage altogether; others only offered plans

with prohibitively high premiums. When his family

was uninsured, Mr. Sherburne could not obtain treat-

ment for his injured shoulder, Ms. Bell could not obtain

diagnostic tests for persistent abdominal pain, and the

couple had to pay out-of-pocket for all health care for

their three sons, ages 13, 10, and 8.

In 2014, after implementation of the ACA, Mr.

Sherburne enrolled his family in a health insurance plan

through the federally operated exchange in Utah. Mr.

Sherburne and Ms. Bell were eligible for subsidies be-

cause their projected income was $40,000, or less than

150 percent FPL. With subsidies, the entire family was

covered for a premium of just $123 per month; without

subsidies, the monthly premium would have been $850.

Immediately after becoming insured through the ACA,

Mr. Sherburne received his first physical examination

in over a decade, visited a dermatologist for cancer

screening, and obtained physical therapy that improved

his shoulder injury and, hi. doctor believes, likely elim-

inated the need for future surgery. Once she became

insured, Ms. Bell was able to see a doctor about her ab-

dominal pain and, as a result, received surgery to re-

move her gallbladder just three days later. The sur-

gery was successful; for the first time in her adult life,

Ms. Bell no longer suffers from chronic pain. Mr. Sher-

burne and Ms. Bell also no longer have to pay out-of-

pocket health expenses for their three children. When

their son recently broke his thumb, his emergency care

and cast were both covered.

Mr. Sherburne and Ms. Bell renewed their health

insurance plan on Utah’s federal exchange for 2015,

and their premium payments remain a low $174, com-

8

pared to the $805 they would have to pay without sub-

sidies. Without access to their $631 monthly subsidy,

Mr. Sherburne and Ms. Bell would be forced to cancel

their family’s health insurance coverage. Mr. Sher-

burne and Ms. Bell cannot pay themselves a higher

salary without jeopardizing their business; they both

drive used cars and have no monthly car payment;

their children already wear hand-me-down clothing;

and they do not take family vacations. Their budget

simply could not accommodate the $9660 annual pre-

mium that Petitioners’ interpretation of the Act would

require them to pay.

Lisa Paterson, 60, who is self-employed and lives in

Moab, Utah, likewise could not access or afford com-

prehensive health insurance on the individual market

until the ACA’s subsidies made it possible. For four

years prior to the ACA, she delayed obtaining the

health care she needed because of coverage and cost

issues. Ms. Paterson was denied access to comprehen-

sive coverage on the individual market because she suf-

fers from preexisting conditions, including an autoim-

mune disease, osteoporosis, and a previously torn ante-

rior cruciate ligament. Only by depleting her savings

account was she able to purchase a high-deductible cat-

astrophic insurance plan, which had a premium of ap-

proximately $330 per month and a $7000 deductible.

In 2014, however, Ms. Paterson signed up for a

comprehensive HMO plan through Utah’s federally run

exchange that, after subsidies, cost her only $16.90 per

month. Without the subsidies, Ms. Paterson’s monthly

premium costs would have been $475.34. In 2014, this

comprehensive plan enabled Ms. Paterson to visit her

primary care physician four times to monitor her condi-

tions and obtain all recommended preventive care. Af-

ter a routine mammogram revealed a suspicious mass,

9

Ms. Paterson received diagnostic testing at a world-

renowned cancer institute. During the 2015 open en-

rollment period, Ms. Paterson purchased a new insur-

ance plan on Utah’s federally run exchange and, be-

cause she earns less than 133 percent FPL, she now

pays just $26.30 for her monthly premium costs, com-

pared to the $501.30 she would have to pay without

subsidies. If she loses access to this $475 monthly sub-

sidy, Ms. Paterson’s only option for maintaining insur-

ance coverage that costs $6015 annually would be to

withdraw funds from her retirement account.

As the 2015 open enrollment period is still under-

way, complete enrollment data are not yet available.

But preliminary data indicate that subsidies will once

again enable millions of middle- and low-income Ameri-

cans to obtain affordable health insurance coverage in

States using federal exchanges. HHS, Office of the As-

sistant Secretary for Planning and Evaluation, Health

Insurance Marketplace 2015 Open Enrollment Period:

December Enrollment Report 23 (Dec. 2014). Accord-

ingly, all indications are that the subsidies will continue

to play a critical role in reducing the number of unin-

sured Americans.

2. The subsidies are integral to maintaining

insurance market reforms for all ex-

change participants

The ACA’s subsidies are important not only to

those who qualify for them, but also to those who do

not. Households that do not qualify for subsidies none-

theless benefit substantially from the ACA’s reforms to

the individual health insurance market, to which the

subsidies are integral. Those reforms—which apply to

all insureds regardless of whether they receive subsi-

dies—have improved health insurance by ensuring con-

10

sumer protections, expanding health benefits coverage,

and making the individual health insurance market

more user-friendly. For many, those reforms have also

led to an increase in the number of insurance plan offer-

ings and insurers available.

The ACA’s reforms provide that insurers cannot

exclude coverage for preexisting conditions, arbitrarily

rescind coverage, or base premium rates on an individ-

ual’s health status. Hall & Lord, Obamacare at 3. Plan

offerings are also far more comprehensive. Before the

ACA, only 2 percent of health plans offered on the indi-

vidual market covered all ten of the “Essential Health

Benefit” categories that the ACA now requires.

Boutwell & Freedman, Coverage Expansion and the

Justice-Involved Population: Implications for Plans

and Service Connectivity, 33 Health Affairs 482, 483-

484 (2014). Purchasing health insurance on the ex-

changes is also far easier because insurers are now con-

solidated into a single marketplace. Further, because

insurance plan offerings are now standardized into cov-

erage tiers with defined levels of cost sharing—bronze,

silver, gold, and platinum—consumers can more readily

compare plans among competing insurers. Hall & Lord,

Obamacare at 3. For many, the exchanges offer more

competitive plan offerings and prices than private insur-

ers offered before the ACA, with new insurers entering

the individual markets in response to the opportunity for

increased enrollment on the exchanges. /d. at 6.

Congress understood, however, that the individual

market could not be substantially improved solely

through regulation of insurers. 42 U.S.C. § 18091(2)(1)-

(J). To ensure that the ACA’s insurance regulations do

not cause healthy people to defer purchasing insurance

until they are sick, Congress established the “individual!

mandate”—the requirement that every person either

i}

purchase health insurance or pay a tax penalty. 26

U.S.C. § 5000A; National Fed’n of Indep. Bus. v. Sebe-

lius, 132 S. Ct. 2566, 2577, 2580 (2012) (plurality opin-

ion). Congress also ensured that those who are subject

to the individual mandate could afford insurance by

providing federal subsidies. 42 U.S.C. §§ 18081-18082;

26 U.S.C. § 36B. Together, the individual mandate and

federal subsidies have achieved broad insurance cover-

age nationwide, enabling insurers to offer the ACA’s

improved insurance products at affordable premiums.

See Hall & Lord, Obamacare at 6.

The individual mandate and subsidies are interde-

pendent. Congress exempted from the individual man-

date households that cannot access affordable health in-

surance. 26 U.S.C. § 5000A(e)(1)(A). In the absence of

federal subsidies, many households in States using fed-

eral exchanges would become exempt from the individu-

al mandate because they would no longer have access to

affordable insurance. See Blumberg et al., The Implica-

tions of a Supreme Court Finding for the Plaintiff in

King v. Burwell 6 (Jan. 2015). Removing the subsidy-

eligible population from the exchanges’ coverage group

would subsequently affect the availability of affordable

insurance for higher-earning households. A recent study

predicts that eliminating the ACA subsidies would cause

a near “death spiral,” a cycle of sharp premium increases

and subsequent disenrollment until only the sickest in-

dividuals remain in the market risk pools. Eibner &

Saltzman, Assessing Alternative Modifications to the

Affordable Care Act: Impact on Individual Market

Premiums and Insurance Coverage 25 (2014). A death

spiral would result in insurance becoming unaffordable

for many higher-earning households, thereby exempting

an even greater population from the individual mandate.

See Hall, Disingenuous: The Latest Legal Challenges to

12

Insurance Market Reforms, 44 Hastings Ctr. Rep. 6, 6-7

(2014). The study demonstrates that subsidies are es-

sential to preserving the economic viability of the ACA’s

reforms to the individual health insurance market na-

tionwide. Thus, the ACA’s subsidies are significant even

to those who do not qualify for them because, in the ab-

sence of subsidies, many higher-earning households

would also lose access to the ACA’s improved insurance

products.

3. Insurance access gains and market re-

forms in most States would be lost if the

decision below is reversed

Since its full implementation began just one year

ago, the ACA has already reduced significantly the

number of uninsured American households and trans-

formed the individual health insurance markets in al] 50

States and the District of Columbia. Implementation is

an ongoing process for the federal government, States,

insurers, health care providers, and households nation-

wide, and promises to continue to improve health care

in the United States for years to come, provided the

Act’s intended scheme remains in place.

However, if households in 34 States lose access to

subsidies, then the Act’s scheme would collapse in these

States, and middle- and low-income households would

lose everything they gained under the ACA. See Bor-

delon et al., The Stage is Set: Predicting Staie and Fed-

eral Reactions to King v. Burwell 5 (Jan. 2015) (eliminat-

ing subsidies would “deliver a crippling blow to the

health care law and tarnish much of the implementation

progress that has been made to date”). Of the 6.7 million

individuals who relied on subsidies to access health in-

surance during the 2014 enrollment cycle, 4.6 million live

in States where federal exchanges operate; most, if not

13

all, of those people would see their new-found insurance

become immediately unaffordable. Levitt & Claxton,

The Potential Side Effects of Halbig (July 31, 2014); see

also Blumberg et al., Characteristics of Those Affected

by a Supreme Court Finding for the Plaintiff in King v.

Burwell 7 (Jan. 2015) (predicting that 99 percent of the

subsidy-eligible population would face unaffordable

premiums following a ruling for Petitioners). These

households, including the Sherburne family and Lisa

Paterson in Utah, see supra pp. 6-9, would be forced to

drop coverage immediately or face an average monthly

premium increase of $400. See Committee on Energy

and Commerce, Minority Staff, District-by-District Im-

pact of a Potential Supreme Court Ruling Against Af-

fordable Care Act Federal Exchange Tax Credits 1

(Dec. 2014). The millions of affected households could

also encounter devastating liability on their 2015 tax re-

turn. See Grewal, How King v. Burwell May Create Tax

Problems for 2014-2015 Health Care Enrollees, 32 Yale

J. on Reg. Online (forthcoming). By 2016, the total num-

ber of middle- and low-income Americans denied access

to subsidies could reach 13 million. Committee on Ener-

gy and Commerce, District-by-District Impact at 1.

Petitioners’ argument would not only harm middle-

and low-income Americans, but also higher-earning

Americans who rely on the individual market to access

insurance in the affected States. A recent RAi*!) Cor-

poration study predicts that eliminating the ACA sub-

sidies in the 34 States using federal exchanges would

result in substantial unsubsidized premium increases

and exchange-wide enrollment declines. Saltzman &

Eibner, The Effect of Eliminating the Affordable Care

Act’s Tax Credits in Federally Facilitated Marketplac-

es 5 (Jan. 2015). This study estimates that, without

federal subsidies, wnsubsidized premiums on the feder-

14

ally operated exchanges would rise 47 percent, and an

estimated 9.6 million people would lose insurance cov-

erage. Id. This represents a 70 percent decrease in

current federal exchange enrollment and includes high-

er-earning households as well as_ subsidy-eligible

households. Jd. The projected premium increases and

disenrollment would threaten the ultimate viability of

the federal exchanges. /d. at 6. Petitioners’ argument

would thus harm higher-earning Americans who access

insurance on the federal exchanges by nearly doubling

their premium rates and destabilizing the insurance

market on which they rely.

Even if States were to pursue implementing State-

based exchanges immediately after losing federal sub-

sidies, that is unlikely to prevent an immediate destabi-

lization of the insurance markets in those States. See

Bagley et al., Predicting the Fallout from King v. Bur-

well—Ezchanges and the ACA, 372 New Eng. J. Med.

101 (2015). States would face significant obstacles to

establishing State-based exchanges, including the con-

siderable time and resources required, extensive statu-

tory and regulatory requirements, technological] chal-

lenges, and the timing of State legislative sessions. /d.

at 101-102. If this Court reverses the court of appeals’

judgment, it is highly unlikely that States could establish

new State-based exchanges before the vast majority of

enrollees were faced with soaring premium costs. See

supra pp. 12-13. Reversal could therefore prevent mil-

lions of Americans from obtaining health insurance for

years. See Bagley et al., 372 New Eng. J. Med. at 103.

B. Loss Of Affordable Health Insurance Gener-

ally Means Worse Health

By increasing access to and improving health care

coverage, the ACA’s health insurance exchanges have

15

promoted health outcomes among Americans nation-

wide. Reversal of the judgment below would not only

undermine the Act’s statutory scheme, but would also

threaten the well-being and longevity of millions of

people with serious health care needs.

Having health insurance is associated with im-

provements in self-reported physical and mental health

status and an increased use of preventive care. See

Van Der Wees et al., Improvements in Health Status

after Massachusetts Health Care Reform, 91 Milbank

Q. 663, 676-678 (2013). Recent studies estimate that

expanded access to health insurance decreases annual

mortality rates by at least 2.9 percent. Compare Som-

mers et al., Changes in Mortality After Massachusetts

Health Care Reform, 160 Annals of Internal Med. 585

(2014), with Sommers et al., Mortality and Access to

Care among Adults after State Medicaid Expansions,

367 New Eng. J. Med. 1025 (2012). These findings sug-

gest that, by the end of the open enrollment period in

February 2015, at least one death will be prevented for

every thousand adults who gained insurance access on

the exchanges in 2014. See Sommers et al., 160 Annals

of Internal Med. at 591; Sommers et al., 367 New Eng.

J. Med at 1031. One study estimates that 57 percent of

the 8 million people who purchased insurance on the

exchanges in 2014 were previously uninsured. Hamel

et al., Survey of Non-Group Health Insurance Enrol-

lees: A First Look At People Buying Their Own Health

Insurance Following Implementation of the Affordable

Care Act 6 (2014). Accordingly, this evidence suggests

that, after just one enrollment year, expanding cover-

age through the ACA’s health insurance exchanges will

have saved thousands of lives.

The positive effect of health insurance on health

outcomes is partially explained by the increased access

16

to, and utilization of, health care services. Adequately

insured adults are more likely to receive regular pre-

ventive care, which increases the likelihood of timely

diagnosis and treatment. McMorrow et al., Determi-

nants of Receipt of Recommended Preventive Services:

Implications for the Affordable Care Act, 104 Am. J.

Pub. Health 2392, 2396-2398 (2014). Preventive care

services tend to be low-cost and cost effective; one

study estimates that increasing access to preventive

care in the U.S. could save nearly $ billion annually by

improving population health and reducing medica)

spending. Maciosek et al., Greater Use of Preventive

Services in U.S. Health Care Could Save Lives At Lit-

tle Or No Cost, 29 Health Affairs 1656, 1658 (2010).

Adults with health insurance are also more likely to

comply with prescribed treatment regimens and follow-

up care, which contribute to better overall health.

McMorrow et al., 104 Am. J. Pub. Health at 2396-2398.

Most significantly, health insurance saves the lives of

people who suffer from conditions that are preventable

or treatable if they are identified early, such as certain

cancers, infections, and heart disease. See Sommers et

al., 160 Annals of Internal Med. at 591.

In contrast, uninsured people have greater difficul-

ty obtaining the care they need. In 2013, 25 percent of

adults without insurance reported going without care in

the previous year, largely due to cost, compared to only

4 percent of adults with coverage. See Kaiser Commis-

sion on Medicaid and the Uninsured, The Uninsured: A

Primer: Key Facts About Health Insurance on the Eve

of Health Reform 6 (2013). Uninsured adults receive

significantly less preventive care than adults with

health insurance, leading to delayed or forgone treat-

ment, later-stage cancer diagnoses, onset of acute con-

ditions such as heart attack or stroke, and premature

17

death. Institute of Medicine, America’s Uninsured

Crisis: Consequences for Health and Health Care 68-73

(2009). The uninsured are also more likely to forgo pre-

scribed medications and less likely than insured indi-

viduals to obtain all recommended health care services.

Cohen et al., Strategies Used by Adults to Reduce their

Prescription Drug Costs, 119 NCHS Data Brief 1, 1-6

(2013). Overall, a substantial body of evidence shows

that uninsured individuals suffer worse health out-

comes, including higher mortality rates, because of in-

sufficient access to the health care system. See Kaiser

Commission on Medicaid and the Uninsured, Unin-

sured: A Primer at 11-12.

The example of Kimberly Tonyan, 42, of Cornelius,

North Carolina, illustrates the point. For years as a

working single mother, Ms. Tonyan was unable to af-

ford health insurance for herself and her two daugh-

ters. Although Ms. Tonyan took her daughters for

check-ups, she herself had not received annual exams

or screenings, such as physicals or pap smears, for

years, because she could not afford them. Although

North Carolina has not established its own exchange, in

2014 she was able to sign up for health insurance

through a federally run exchange. Due to her income of

approximately $20,000, or less than 133 percent FPL,

she was eligible for subsidies that brought the cost of

her premiums down from $279 to $27.91 per month,

saving her $3013.08 in annual premium costs.

A few months later, Ms. Tonyan began experienc-

ing pain in her abdomen. Because she was now insured,

she visited a doctor, who diagnosed her with uterine

fibroid tumors and an ovarian cyst. After she had a

hysterectomy, her doctors discovered that she had en-

dometrial cancer. Luckily, the cancer was caught and

removed early, which meant there was no need for

18

more extensive and expensive treatment, such as

chemotherapy or radiation. Moreover, because endo-

metrial cancer is rare in women in their 40s, Ms. To-

nyan’s doctor recommended genetic testing. This test-

ing revealed that Ms. Tonyan has Cowden syndrome, a

genetic condition associated with a greatly increased

risk of breast, thyroid, uterine, and kidney cancer. Be-

cause she now knows that she has an 85 percent risk of

developing breast cancer, Ms. Tonyan chose to have a

preventive mastectomy. Ms. Tonyan credits the ACA

with saving her life.

Without the subsidies that made it possible for her

to purchase insurance on a federally operated exchange

in North Carolina, Ms. Tonyan would not have gone to

the doctor when she began experiencing pain in her ab-

domen and might not have sought treatment until the

cancer had spread much further. It is also unlikely that

she would have sought testing for Cowden syndrome if

she lacked comprehensive health insurance, which

would have left Ms. Tonyan unaware of her increased

risk for breast cancer and unable to pursue the preven-

tive measures she has taken to preserve her health.

Because Cowden syndrome is genetic, Ms. Tonyan’s di-

agnosis is also important for preserving the health of

her daughters, who can now pursue genetic testing and

preventive measures before their health is at risk.

The ACA’s health insurance exchanges and subsi-

dies have already improved health and saved lives.

* Because Ms. Tonyan’s health issues have affected her ability

to work, she now earns less than 100 percent FPL. Accordingly,

she did not qualify for a federal subsidy for the 2015 open enroll-

ment period. Since North Carolina opted out of the ACA’s Medi-

caid expansion, Ms. Tonyan is currently without access to afforda-

ble health insurance.

19

Withholding subsidies from the 34 States using federal-

ly operated exchanges would threaten the health of the

subsidy-eligible population and higher-earning house-

holds alike. Some would lose newly acquired coverage

that has already dramatically improved their health.

Others, who rely on the individual market to purchase

insurance, would lose access to care if premium rates

spiral and they are priced out of the market. The Court

should not construe the Act in a way that would dis-

mantle large portions of the statute and prevent mil-

lions of people from obtaining the health care they need

and that Congress sought to make available.

C. The Subsidies’ Positive Effect On Health In-

surance Access Promises To Improve The

Nation's Ability To Fight Epidemic Illnesses,

Including HIV

Congress’s provision for tax subsidies nationwide

also promises an additional national impact: improve-

ment of the population’s ability to resist epidemic ill-

nesses. The response to the HIV epidemic—which is

the subject of extensive data and analysis—has provid-

ed a valuable case study for the effect of expanded ac-

cess to health insurance on the societal ability to ad-

dress nationwide epidemics—including not only HIV,

but future potential epidemics like the Ebola virus or

pandemic flu.

1. HIV remains a serious public health

threat, and insufficient insurance under-

mines HIV care and treatment

An estimated 1.2 million people in this country live

with HIV, approximately 168,000 people are unaware

of their infection, and, with each passing year, about

50,000 people become newly infected. See Bradley et

20

al., Vital Signs: HIV Diagnosis, Care, and Treatment

Among Persons Living with HIV—United States, 2011,

63 Morbidity & Mortality Wkly. Rep. 1113, 1114 (2014).

It need not be this way. Advancements in medical

treatment have vastly improved the length and quality

of life for people living with HIV and reduced the like-

lihood of transmitting the virus to others—but these

benefits are only realized by those who can receive sus-

tained clinical care. See Goldman et al., The Prospect of

a Generation Free of HIV May Be Within Reach if the

Right Policy Decisions Are Made, 33 Health Affairs

428 (2014). The goal of HIV clinical care is to move pa-

tients along a “continuum of care” from infection to di-

agnosis, engagement in medical care, treatment, and,

ultimately, viral suppression. Viral suppression helps

people with HIV live longer, healthier lives because

suppression preserves the immune system, slows the

virus’s evolution, and reduces the risk of drug re-

sistance. Cohen et al., Prevention of HIV-1 Infection

with Early Antiretroviral Therapy, 365 New Eng. J.

Med. 493, 503 (2011). Further, at the viral suppression

stage, an individual’s ability to transmit HIV to others

is reduced by 96 percent, significantly slowing the

spread of the epidemic. /d.

Achieving viral suppression is attainable for the

majority of people who receive comprehensive and co-

ordinated care, with recent studies finding that over 80

percent of people living with HIV who receive regular

health care are virally suppressed. Mugavero et al.,

The State of Engagement in HIV Care in the United

States: From Cascade to Continuum to Control, 57

Clinical Infectious Diseases 1164, 1164 (2013); Bradley

et al., 63 Morbidity & Mortality Wkly. Rep. at 1115.

Unfortunately, just 25 percent of Americans living with

HIV are virally suppressed. Mugavero et al., 57 Clini-

21

cal Infectious Diseases at 1164. A lack of access to

health insurance is strongly associated with this low

overall rate of viral suppression, see id., while having

health insurance is associated with a 71 percent reduc-

tion in mortality among this population, Goldman et al.,

Effect of Insurance on Mortality in an HIV-Positive

Population in Care, 96 J. Am. Statistical Ass’n. 883,

888 (2001).

The HIV care necessary to treat the virus and im-

pede its transmission is costly. Comprehensive insur-

ance coverage is accordingly essential to promote indi-

vidual and public health outcomes and to control—and

eventually eliminate—this domestic epidemic. As re-

cently as 2010, only 17 percent of people living with

HIV had private health insurance, compared with 65

percent of the American population. Snider et al.,

Nearly 60,000 Uninsured and Low-Income People with

HIV/AIDS Live in States that are not Expanding Med-

icaid, 33 Health Affairs 386, 386 (2014). Before the

ACA, many people living with HIV were denied pri-

vate health insurance due to preexisting conditions, of-

fered prohibitively high premium rates because of their

diagnosis, or subjected to annual or lifetime caps on

coverage. Kates et al., Assessing the Impact of the Af-

fordable Care Act on Health Insurance Coverage of

People with HIV 4 (2014).

Some uninsured people living with HIV receive

treatment assistance through public programs. For in-

stance, the Ryan White Program, administered by the

Department of Health and Human Services as a “payer

of last resort,” provides limited funding to cities,

States, and community-based organizations that offer

health care and other services to people living with

HIV. Sood et al., HIV Care Providers Emphasize the

Importance of the Ryan White Program for Access to

22

and Quality of Care, 33 Health Affairs 394, 394-395

(2014). The Ryan White Program funds State-

administered AIDS Drug Assistance Programs

(ADAPs), which provide individuals who are uninsured

or underinsured with prescription drugs for treating

HIV. McManus et al., Current Challenges to the Unit-

ed States’ AIDS Drug Assistance Program and Possi-

ble Implications of the Affordable Care Act, 2013 AIDS

Res. & Treatment 1, 1. These programs have never

met the needs of all people seeking services; before the

ACA, demand for ADAPs ballooned to over 225,000

people living with HIV nationwide. Jd. at 2. ADAP

coverage and eligibility requirements vary widely by

State, and many programs have waiting lists for new

patients and quantity limits on prescription drug ac-

cess. See Snider et al., 33 Health Affairs at 391.

The Ryan White Program and ADAPs are not de-

signed to function as health insurance plans that pro-

vide coverage for a prescribed set of benefits; instead,

they focus their limited resources on a core set of HIV

services. See Snider et al., 33 Health Affairs at 391.

People living with HIV have an increased risk and

prevalence of comorbidities like cardiovascular disease

and diabetes, and many require comprehensive insur-

ance coverage that includes preventive and acute care

to improve their health and quality of life. Abara &

Heiman, The Affordable Care Act and Low-Income

People Living With HIV: Looking Forward in 2014 and

Beyond, 25 J. Ass’n Nurses in AIDS Care 476, 478

(2014). Coverage through the Ryan White Program

and ADAPs simply cannot address these additional

health needs.

Again, an example illustrates the point. Tod Haley,

43, of Greensboro, North Carolina, is a loss prevention

auditor. Prior to the ACA, Mr. Haley had been unin-

23

sured since 2007, when his insurer cancelled his health

insurance policy after he suffered a herniated disk. In

2008, Mr. Haley, who already could not access insur-

ance because of his preexisting spine injury, was diag-

nosed with HIV. While he was uninsured, Mr. Haley

was able to obtain HIV medications through North

Carolina’s ADAP. However, Mr. Haley perpetually

faced losing access to his life-saving treatment because

he had to reapply for ADAP coverage every six

months. On several occasions, Mr. Haley was unable to

obtain his HIV medications through ADAP because he

was waitlisted for coverage. Furthermore, in order to

remain eligible for ADAP, Mr. Haley could not earn

more than 250 percent FPL. Mr. Haley turned down

several employment opportunities in his profession and

instead sought minimum-wage positions to ensure that

he could continue to obtain his HIV medications.

Because of the ACA, Mr. Haley no longer faces the

insecurity of the ADAP renewal process, and he no

longer has to choose between advancing his career and

receiving his HIV treatment. In 2014, Mr. Haley

signed up for health insurance on North Carolina’s fed-

erally run exchange. During the 2015 open enrollment

period, he purchased a new plan offered by Blue Cross

Blue Shield. Because of his income of approximately

$20,000, or less than 200 percent of FPL, Mr. Haley is

now eligible for an ACA subsidy that lowers his month-

ly premiums to $158 per month from approximately

$360. His copayments to see physicians range between

$5 and $10, and he pays approximately $15 per month

total for his HIV medications. Mr. Haley estimates

that his monthly costs for these medications would be

approximately $3700 without coverage. Because of his

comprehensive coverage, Mr. Haley misses fewer doses

of his HIV medications, receives al] recommended pre-

24

ventive care, and obtains ongoing care from a specialist

for his herniated disk. If the Fourth Circuit’s judgment

in this case is overturned, Mr. Haley would lose access

to comprehensive health insurance. As a result, he

would once again depend on North Carolina’s ADAP to

access his HIV medications.

People living with HIV who gained comprehensive

coverage through the federal exchanges and subsidies

in 34 States would suffer disproportionately if they lose

health insurance access. Research demonstrates that

uninterrupted health insurance is essential to achieving

positive health outcomes for people in HIV treatment.

Riley, Population-Level Effects of Uninterrupted

Health Insurance On Services Among HIV-Positive

Unstably Housed Adults, 23 AIDS Care 822 (2011). If

the decision below is reversed and subsidies become

unavailable in a majority of States, people living with

HIV who lose access to subsidies or become priced out

of failing federal exchanges could suffer harmful treat-

ment disruptions that threaten their lives. These indi-

viduals would once again rely on safety-net programs,

which were already inadequate before the ACA. Sood

et al., 33 Health Affairs at 395.

2. Massachusetts’s improvement in HIV

health outcomes demonstrates the effec-

tiveness of expanded health insurance

coverage in fighting the epidemic

New evidence from Massachusetts demonstrates

that expanded heaith insurance has a proven effect in

controlling the HIV epidemic. In 2006, Massachusetts

achieved near-universal health insurance coverage by

passing a comprehensive health reform law that ex-

25

panded Medicaid,’ offered subsidized private insur-

ance, and enacted an individual mandate requiring all

Massachusetts residents to purchase health insurance

coverage; the Massachusetts statute later served as a

model for the ACA. Sommers et al., 160 Annals of In-

ternal Med. at 585; see also 42 U.S.C. § 18091(2)(1).

Largely as a result of increased coverage, both indi-

vidual and public health outcomes in Massachusetts are

dramatically improved compared to national HIV-

related statistics. Harvard Law School Center for

Health Law and Policy Innovation, Massachusetts

Case Study: Health Reforms Lead to Improved Indi-

vidual and Public Health Outcomes and Cost Savings

(June 2012). One study found that, between 2006 and

2009, new HIV diagnoses fell by 25 percent in Massa-

chusetts as compared to a 2 percent increase nation-

wide. Jd. A more recent study shows that, from 2000

to 2011, the number of HIV-related deaths in Massa-

chusetts declined by 41 percent and the number of

HIV infection diagnoses decreased by 44 percent.

Harvard Law School Center for Health Law and Policy

Innovation, Massachusetts Case Study: Health Re-

forms in Conjunction with the Ryan White Program

Lead to Improved Individual and Public Health Out-

comes and Cost Savings (May 2014). In contrast, na-

tionwide statistics for HIV-related deaths and new

HIV diagnoses remained relatively unchanged. /d.

People living with HIV in Massachusetts are also far

more likely to progress along the HIV continuum of

care than people living with HIV nationwide. Id.; see

* In 2001, Massachusetts expanded Medicaid coverage to pre-

disabled people living with HIV whose income was less than 200

percent FPL ($23,340 for an individual in 2014). Bovbjerg &

Ullman, Recent Changes in Health Policy for Low-Income People

in Massachusetts, 17 Urban Institute State Update 1, 14 (2002).

26

also supra p. 20. The following chart compares the

percentages of people living with HIV in Massachu-

setts who are diagnosed, receive regular medical care,

take HIV medications, and are virally suppressed to

the percentages of people living with HIV nationwide.

Massachusetts Outcomes vs. National Outcomes’

100 ° MA outcomes

Natmonal oufcores

Infected Dugnosed in Mecca! Bhung HIV Virally

Care Metbaateens Supressed

Extending health insurance coverage to people

living with HIV has made a measurable difference in

Massachusetts’s ability to combat the HIV epidemic.

Congress’s adoption of subsidies and private health

insurance reform has created a national capacity to

* This chart, prepared by the Harvard Law School Center for

Health Law and Policy Innovation, reports Massachusetts data

from Holman et al., Massachusetts and Southern New Hampshire

HIV/AIDS Consumer Study (June 2011), and national data from

Cohen et al., Vital Signs: HIV Prevention Through Care and

Treatment—United States, 60 Morbidity & Mortality Wkly. Rep.

1618 (2011).

27

replicate Massachusetts’s successes.” One study esti-

mates that, by 2017, increased access to preventive

care under the ACA will result in an additional 466,153

HIV screenings, leading to 2598 new diagnoses and

reducing the number of people who are unaware of

their HIV status by 22 percent. Wagner et al., The

Affordable Care Act May Increase the Number of

People Getting Tested for HIV By Nearly 500,000 by

2017, 33 Health Affairs 378, 384 (2014). By making

coverage for HIV testing and treatment available, the

ACA will ensure that more people living with HIV

will be diagnosed, more will discover their status ear-

lier, more will initiate care, and more will achieve viral

suppression, see supra pp. 20-21, reducing the overall

spread of the epidemic.

3. Reversal of the judgment below would

undermine the Nation’s ability to address

future epidemics and other emerging

public health threats

The example of HIV demonstrates the important

role that expanded health insurance plays in the Na-

tion’s ability to resist and fight epidemics and other

emerging public health threats. Insufficient insurance

access detrimentally affects public health on a societal

level because communities nationwide divert re-

sources from public health programs to cover the

° of course, other factors—such as income levels, baseline in-

surance access, and number of physicians per capita—will produce

variance in the rate at which each State wil! be able to provide

treatment to newly insured people living with HIV. See Sommers

et al., 160 Annals of Internal Med. at 592. Even accounting for

such variables, however, the evidence demonstrates that health

insurance improves outcomes and reduces the epidemic’s spread.

See Snider et al., 33 Health Affairs at 391.

28

health care costs of the uninsured. Recent experienc-

es with the Ebola virus exposed the threat that

emerging diseases pose to the U.S. public health sys-

tem, and a recent study found that half of States are

unprepared to cope with outbreaks of severe infec-

tious diseases. See Levi et al., Outbreaks: Protecting

America From Infectious Diseases 16 (Dec. 2014) (25

States and the District of Columbia scored five or low-

er out of ten indicators related to preventing, detect-

ing, diagnosing and responding to serious infectious

disease threats). By reducing overall insurance levels,

reversal of the judgment below would not only under-

mine nationwide efforts to eradicate ongoing epidem-

ics like HIV, but also threaten the ability to respond

to future public health threats such as pandemic flu,

tuberculosis, measles, or bioterrorism.

Prior to the ACA, the Institute of Medicine found

that insufficient insurance access had an adverse spillo-

ver effect on public health that reached even the in-

sured population. Institute of Medicine, America’s Un-

insured Crisis at 91-95; Institute of Medicine, A Shared

Destiny: Community Effects of Uninsurance (2003).

Insufficient insurance access adversely affected State

and local public health programs because they devoted

resources to uninsured residents that were reallocated

from population-based health programs supporting dis-

ease surveillance and community-wide health interven-

tions. Institute of Medicine, A Shared Destiny at 144.

This diversion of resources weakened the ability of

health departments to respond to emerging public

health threats and ongoing illnesses like the HIV epi-

demic. Jd. at 13. Communities with high rates of unin-

sured individuals also had insufficient health care deliv-

ery capacity, reduced access to emergency medical ser-

vices, and fewer available clinical specialists. Institute

29

of Medicine, America’s Uninsured Crisis at 91-95. Ac-

cordingly, the Institute of Medicine recommended that

the President work with Congress to achieve health

insurance coverage for all Americans “as quickly as

possible.” Jd. at 114.

The President and Congress responded with the

ACA, which expanded access to the private health in-

surance market with the help of federal subsidies. A

successful response to an infectious disease threat re-

quires that sick people have unimpeded access to the

health care system so that infected individuals do not

delay seeking treatment, diseases are recognized quick-

ly, and the risk of spreading the disease within the

community is minimized. Lurie, H1N1 Influenza, Pub-

lic Health Preparedness, and Health Care Reform, 361

New Eng. J. Med. 843, 844 (2009). By increasing access

to routine and emergency medical care, the ACA ena-

bles earlier detection, treatment, and control of new

diseases. Jd.; Reeve et al., The Impacts of the Afforda-

ble Care Act on Preparedness Resources and Pro-

grams: Workshop Summary 8-9 (2014).

A successful response to an infectious disease

threat also requires community resilience, which is the

ability of a healthy community to withstand and recov-

er from a public health emergency. See Vinter et al.,

Public Health Preparedness in a Reforming Health

System, 4 Harv. L. & Pol’y Rev. 339, 339-340 (2010).

Again, Congress improved community resilience

through the ACA: Increased health insurance access

ensures that individuals regularly receive needed care

and reduces population levels of chronic diseases and

vaccine-preventable illnesses, so that fewer people will

suffer from already compromised health in the event of a

public health emergency. Lurie, 361 New Eng. J. Med.

at 844; Vintner et al., 4 Harv. L. & Pol’y Rev. at 344.

30

The availability of subsidies in all States has ena-

bled significant coverage gains among previously unin-

sured households and improved access to the health

care system for all Americans. See supra pp. 5-12. As

communities become healthier nationwide, the Nation

will be better able to cope with ongoing epidemics such

as HIV and emerging public health threats such as the

Ebola virus or a future flu outbreak. Petitioners’ de-

sired toppling of the ACA’s statutory scheme in a ma-

jority of States, however, would negate all gains in

these States and stymie national efforts to promote

public health security, threatening the entire popula-

tion, both insured and uninsured.

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

MARK C. FLEMING

Counsel of Record

RICHARD A. JOHNSTON

RACHEL L. GARGIULO

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

mark fleming@wilmerhale.com

JANUARY 2015