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Fact Sheet:

THE CALIFORNIA ENDOWMENT FILES AMICUS BRIEF WITH U.S. SUPREME COURT ON AFFORDABLE CARE ACT
The California Endowment on Friday, October 28, 2011, submitted an amicus curiae brief to the U.S. Supreme Court, arguing that it should consider an appeal to the 11th Circuit U.S. Court of Appeals in the Department of Health and Human Services v. Florida case. This document summarizes the facts contained within the brief. The filing was prepared by California Endowment counsel Kathleen Sullivan, one of the nations preeminent appellate litigators at Quinn Emanuel Urquhart & Sullivan, LLP.

The 11th Circuits decision deserves review by the U.S. Supreme Court.
The California Endowment writes to further explain two independent errors by the Eleventh Circuit that warrant the Supreme Courts review: The 11th Circuit incorrectly concluded that the minimum coverage requirement does not regulate behavior at the point of consumption. i The 11th Circuit incorrectly concluded that the minimum coverage requirement simply counteracts consequences stemming from the fully executed reforms, rather than it being an essential piece of implementing the legislation. ii

The minimum coverage requirement included in the Affordable Care Act is strongly linked to individuals health care choices and therefore to interstate commerce.
Congress properly exercised its power under the Commerce Clause because an individuals health care insurance status creates a tangible link to interstate commerce. Uninsured individuals are more likely to seek routine health care through the most expensive means: emergency rooms, where hospitals cannot legally turn them away. The percentage of the Californias population that is uninsured continues to increase, growing from 18.9 percent in 2008 to 21.9 percent in 2011. iii Uninsured individuals use hospital emergency rooms as an entry point for routine health care. iv Uninsured adults are nearly eight times more likely to go without needed health care due to cost. v

Federal law prevents California health care providers from refusing to treat uninsured individuals who seek care in emergency rooms, regardless of their ability to pay and despite emergency rooms being the least cost-effective place to provide routine care. vi

Cost-shifts in the health insurance system caused by the uninsured also affect interstate commerce. Approximately 37 percent of the cost of health care provided to the uninsured or underinsured is not covered by the patient or a government program or charity. vii That uncompensated care totaled $43 billion in 2008. viii In California alone, it totaled $9.6 billion in 2006. ix Health care providers and insurance companies seek to recover costs of uncompensated care by increasing charges on those with private insurance. xIn California that equaled $1,400 per privately insured family and $500 per individual annually in 2009. xi

The minimum coverage requirement is an essential part of the Affordable Care Act, which cannot be successfully implemented without it.
The minimum coverage requirement makes the Affordable Care Act effective. Congress has the authority to put in place the minimum coverage requirement because, without it, the laws comprehensive regulation of the health care insurance industry is not possible. The health care laws interlocking provisions expand public health care programs, create new health exchanges, and provide subsidies for the purchase of health insurance. xii Together, they will expand eligibility for over 84 percent of Californias uninsured. xiii But the minimum coverage requirement will be a key determinate of [the Affordable Care Acts] success in increasing insurance coverage in California. xiv Striking down only the minimum coverage requirement would critically undercut gains from the Affordable Care Act. xv

The California Endowment has an important interest in the questions presented by this case.
The Endowment is committed to the expansion of affordable, quality health care for all Californians and has a strong interest in supporting the implementation of the Affordable Care Act. The 11th Circuits ruling related to the minimum coverage requirement throws the entire law xvi into question.

(HHS v. Florida, 648 F.3d at 1295) (HHS v. Florida, 648 F.3d at 1310) iii (Gallup, State of the States: Texas and Mass. Still at Health Coverage Extremes in U.S., 9/6/2011) iv (California Hospital Association, A Report on California Hospitals, the Economy, and Health Care Reform, August 2009) v (Families USA, Hidden Health Tax: Americans Pay a Premium, May 2009) vi (42 U.S.C. 1395dd(a)) vii (Families USA, Hidden Health Tax: Americans Pay a Premium, May 2009) viii (42 U.S. 18091(a)(2)(F)) ix (New America Foundation, Harbage and Nichols, T Premium Price: The Hidden Costs All Californians Pay in Our Fragmented Health Care System, December 2006) x (Families USA, Hidden Health Tax: Americans Pay a Premium, May 2009) xi (Center for American Progress, Furnas and Harbage, The Cost Shift from the Uninsured, 3/24/2009) xii (HHS v. Florida , Petition for Certiorari at 2-5, 9/28/2011) xiii (Center for American Progress, Lavarreda and Cabezas, Two Thirds of Californias Seven Million Uninsured May Obtain Coverage Under Health Care Reform, February 2011) xiv (Health Affairs, Long and Gruber, Projecting the Impact of the Affordable Care Act on California, January 2011) xv (Center for American Progress, Gruber, Health Care Reform is a Three-Legged Stool, August 2010) xvi (Florida v. HHS, 648 F.3d 1235, 11th Cir. 2011) and therefore The Endowment has a strong interest in supporting the constitutionality of the minimum coverage requirement.
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