No. 14-114
IN THE

DAVID KING, et al.
v.

Petitioners,

SYLVIA BURWELL, 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 HCA INC.
AS AMICUS CURIAE IN SUPPORT OF
RESPONDENTS AND AFFIRMANCE

Robert A. Waterman
HCA INC.
One Park Plaza
Nashville, TN 37203
(615) 344-9551

January 2015

Robert A. Long, Jr.
Counsel of Record
Christian J. Pistilli
David M. Zionts
Kathryn Cahoy
Paige M. Jennings
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, N.W.
Washington, DC 20001-4956
rlong@cov.com
(202) 662-6000

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICUS CURIAE............................ 1
INTRODUCTION AND SUMMARY
OF ARGUMENT .............................................. 2
ARGUMENT .............................................................. 5
I.

HCA’s Data Show That The ACA Is
Functioning As Intended. ................................ 5
A.

Patients Are Taking Greater
Personal Responsibility For Their
Health Care Costs. ................................ 7

B.

HCA’s Exchange Patients Use
Emergency Rooms At Dramatically
Reduced Rates, And Have Better
Access To Outpatient Services. .......... 10

C.

Women Comprise Two-Thirds Of
HCA Patients On The Exchanges
And Receive Care That Might
Otherwise Be Unavailable To Them. . 14

D.

A Substantial Share Of HCA’s
Patients On The Exchanges Were
Previously Insured, And Would Be
At Risk Of Becoming Uninsured If
Petitioners Prevail. ............................. 18

i

 E.

II.

The ACA’s “Shared Responsibility”
Framework Is Functioning As
Congress Intended. ............................. 23

The ACA Provides Subsidies To Residents
Of States That Elect Not To Administer
An Exchange. ................................................. 28
A.

Petitioners’ Interpretation Is
Inconsistent With The Statutory
Text. ..................................................... 28

B.

Petitioners’ Interpretation Is
Inconsistent With The Statutory
Structure. ............................................ 31

C.

Petitioners’ Interpretation Is
Inconsistent With The Statutory
Purpose. ............................................... 35

D.

Petitioners’ Interpretation Yields
Absurd Consequences. ........................ 36

CONCLUSION ......................................................... 39

ii

 TABLE OF AUTHORITIES
Page(s)

Cases

FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ............................................ 31, 33
Green v. Bock Laundry Mach. Co.,
490 U.S. 504 (1989) ............................................ 36–37
Lawson v. FMR LLC,
134 S. Ct. 1158 (2014) .............................................. 37
Maracich v. Spears,
133 S. Ct. 2191 (2013) ........................................ 30, 35
Nat’l Fed’n of Indep. Bus. v. Sebelius,
132 S. Ct. 2566 (2012) ...................................... passim
Northwest, Inc. v. Ginsberg,
134 S. Ct. 1422 (2014) .............................................. 37
Nw. Austin Mun. Util. Dist. No. 1 v. Holder,
557 U.S. 193 (2009) .................................................. 31
Public Citizen v. U.S. Dep’t. of Justice,
491 U.S. 440 (1989) .................................................. 37
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) .................................................. 29
Statutes
Patient Protection and Affordable Care Act of
2010 .................................................................. passim
iii

 tit. I, subtit. F, pt. I .................................................... 9
tit. I, subtit. E..................................................... 28, 35
§ 2551........................................................................ 24
§ 3025........................................................................ 24
§ 3133........................................................................ 24
§ 3401........................................................................ 24
26 U.S.C.
§ 36B ................................................................. passim
§ 5000A ................................................................. 9, 20
42 U.S.C.
§ 256a–1.................................................................... 13
§ 300gg ................................................................ 17, 22
§ 300gg–1 .................................................................. 22
§ 300gg–3 .................................................................. 22
§ 300gg–6 .................................................................. 22
§ 300gg–13 .......................................................... 13, 17
§ 300gg–17 ................................................................ 13
§ 300gg–18 ................................................................ 33
§ 300gg–19a .............................................................. 18
iv

 § 300gg–91 ................................................................ 29
§ 1395cc–5 ................................................................ 13
§ 1395dd ................................................................... 16
§ 1396a...................................................................... 17
§ 18011...................................................................... 21
§ 18022.......................................................... 13, 17, 22
§ 18031................................................................ 29, 30
§ 18032...................................................................... 30
§ 18041................................................................ 30, 34
§ 18061...................................................................... 33
§ 18071........................................................................ 9
§ 18091...................................................... 9, 13, 23, 35
Legislative Materials
155 Cong. Rec.
23,038 (Sept. 30, 2009)............................................. 14
23,370 (Oct. 1, 2009) .................................................. 9
29,303 (Dec. 3, 2009) ................................................ 26
29,332 (Dec. 3, 2009) ................................................ 26
29,762 (Dec. 8, 2009) ................................................ 13
v

 33,024 (Dec. 22, 2009) .............................................. 13
156 Cong. Rec.
H1801 (daily ed. Mar. 20, 2010) .......................... 9, 13
H2207 (daily ed. Mar. 22, 2010) .............................. 32
Letter from Douglas W. Elmendorf, Dir., CBO,
to the Honorable Evan Bayh, U.S. Senate
(Nov. 30, 2009) ......................................................... 22
Other Authorities
Am. Cancer Soc’y, What are the key statistics about
breast cancer?, http://tinyurl.com/32e6vej............... 15
Am. Coll. of Radiology, ACR Practice Parameter
for the Performance of a Breast Ultrasound
Examination (amended 2014, Resolution 39),
available at http://tinyurl.com/meswwoe ................ 16
Amit Bhardwaj et al., Individual market: Insights
into consumer behavior at the end of open
enrollment, McKinsey & Co. (May 8, 2014) ............ 19
Linda J. Blumberg et al., The Implications of a
Supreme Court Finding for the Plaintiff in
King v. Burwell: 8.2 Million More Uninsured
and 35% Higher Premiums, Urban Institute
(2015) .................................................................. 20–21
Bureau of Labor Statistics, Occupational
Employment and Wages, May 2013: 35-3031
Waiters and Waitresses, available at
http://tinyurl.com/om8t6gf ....................................... 20
vi

 Katherine Grace Carman & Christine Eibner,
Survey Estimates Net Gain of 9.3 Million
American Adults with Health Insurance,
RAND Corp. (Apr. 8, 2014) ...................................... 19
Aaron Carroll, Why emergency rooms don’t close
the health care gap, CNN, May 7, 2012 .................. 16
Ctrs. for Disease Control and Prevention, Nat’l
Ctr. for Health Statistics, Underlying Cause
of Death 1999–2013, on CDC WONDER
Online Database, available at
http://tinyurl.com/ma8w85l ..................................... 15
Christine Eibner & Evan Saltzman, Assessing
Alternative Modifications to the Affordable
Care Act, Rand Corp. (2014) .............................. 20–21
The Estimated Effect of the Affordable Care Act
on Medicare and Medicaid Outlays and Total
National Health Care Expenditures,
Statement of Richard S. Foster, FSA, Chief
Actuary, Ctrs. for Medicare & Medicaid
Servs., U.S. Dep’t of Health and Human
Servs., Before the Subcomm. on Health of
the H. Comm. on Energy and Commerce,
112th Cong. (2011) ................................................... 24
Laurie E. Felland & Lucy Stark, Local Public
Hospitals: Changing with the Times, Ctr. for
Studying Health Sys. Change, Research
Brief No. 25 (Nov. 2012) ......................................... 17
Liz Hamel et al., Survey of Non-Group Health
Insurance Enrollees, Henry J. Kaiser Family
Found. (June 19, 2014) ...................................... 19, 29
vii

 HCA, Analysis of HCA Data Relevant to Aspects
of the Affordable Care Act (Jan. 2015) ............ passim
HealthCare.gov, Preventive health services for
women, http://tinyurl.com/n5jp4z8 .......................... 17
Regina J. Hooley et al., Breast Ultrasonography:
State of the Art, 268 Radiology 642 (Sept.
2013) ......................................................................... 16
Johns Hopkins Medicine, Breast Ultrasound,
http://tinyurl.com/mkvfg2s ...................................... 16
Letter from Gary Cohen, Dir., Ctr. for Consumer
Info. and Ins. Oversight, to Ins. Comm’rs
(Nov. 14, 2013) ......................................................... 21
Memorandum from Gary Cohen, Dir., Ctr. for
Consumer Info. and Ins. Oversight
Regarding Extended Transition to Affordable
Care Act-Compliant Policies (Mar. 5, 2014) ........... 21
Nat’l Ctr. for Health Statistics, U.S. Dep’t
Health and Human Servs., Health, United
States, 2012 (May 2013) ........................................... 12
Frank Newport, Newly Insured Through
Exchanges Give Coverage Good Marks,
GALLUP (Nov. 14, 2014) ......................................... 29
Office of Assistant Sec’y for Planning and
Evaluation, U.S. Dep’t of Health and Human
Servs., ASPE Issue Brief, Health Insurance
Marketplace 2015 Open Enrollment Period:
December Enrollment Report (Dec. 30, 2014) ........... 8
viii

 Press Release, New Survey: After First ACA
Enrollment Period, Uninsured Rate Dropped
from 20 Percent to 15 Percent; Largest
Declines Among Young Adults, Latinos, and
Low-Income People, The Commonwealth
Fund (July 10, 2014) ................................................ 19
John Reichard, Biden Announces Deal With
Hospitals to Cut Medicare, Medicaid
Payments by $155 Billion, CQ Healthbeat,
July 8, 2009 .............................................................. 24

ix

 INTEREST OF AMICUS CURIAE
HCA Inc. (together with its affiliates, “HCA”),
also known as Hospital Corporation of America, is
the nation’s largest non-governmental health care
provider.1 In the United States, HCA owns and
operates 155 acute care hospitals, 112 ambulatory
surgery centers, and 3 psychiatric facilities. In 2014,
HCA facilities, together with its 37,000 affiliated
medical staff physicians, 75,000 nurses, and 220,000
total employees, provided care to patients in
connection with approximately 7.5 million emergency
room (“ER”) visits, 1.4 million surgeries, and 1.8
million inpatient admissions.
HCA is significantly affected by the Patient
Protection and Affordable Care Act of 2010 (“ACA”).
More than 88% of HCA’s facilities are located in a
state in which the federal government operates the
American Health Benefit Exchange (“Exchange”) for
that state’s residents. In three of these states –
Florida, Texas, and Virginia – HCA owns and
operates approximately one out of every five licensed
hospital beds.
HCA
maintains
extensive
aggregate
information about the care it delivers, including care
Pursuant to Rule 37.6, amicus affirms that no counsel for a
party authored this brief in whole or in part and that no person
other than amicus or its counsel made any monetary
contribution intended to fund the preparation or submission of
this brief. Pursuant to this Court’s Rule 37.3(a), letters from all
parties consenting to the filing of this brief have been submitted
to the Clerk.

1

1

 to patients enrolled on the federally-facilitated
Exchanges. HCA believes that its detailed data,
current through the year ending December 31, 2014,
could assist the Court in understanding the on-theground operation of the ACA, and inform the Court’s
interpretation of the statutory provisions at issue in
this case. While HCA’s database is limited to the
patients who visit its facilities, it provides data of a
kind that has not been publicly available, and sheds
light on the experiences of a substantial group of
patients. HCA has published an analysis of this
data, which forms the basis of the material presented
in this brief. See HCA, Analysis of HCA Data
Relevant to Aspects of the Affordable Care Act (“HCA
Report”)
(Jan.
2015),
available
at
http://www.hcahealthcare.com/util/documents/hcadata-aca.pdf.
INTRODUCTION AND
SUMMARY OF ARGUMENT
The availability of subsidized coverage in
states with federally-facilitated Exchanges is a
critical component of the ACA’s statutory structure.
Without these subsidies, important provisions of the
statute would make little sense, and Congress’s basic
objectives would be thwarted. In this brief, HCA
demonstrates, through its internal data, that the
fundamentally interdependent provisions of the ACA
are functioning as Congress intended. It also shows
that Congress’s intentions will be compromised if the
subsidies are invalidated.
1. There has been significant public focus on
the enrollment figures for the ACA Exchanges.
Much less is known, however, about enrolled
2

 individuals as patients seeking care. HCA’s data
provide useful information about these Exchange
patients and the functioning of the Exchanges in
several respects:
Personal Responsibility: Nine out of ten
uninsured HCA patients pay nothing to HCA or its
affiliates for the care they receive. HCA Report at 6.
By contrast, HCA’s patients on the federallyfacilitated Exchanges who make cost-sharing
expenditures pay on average $390 out-of-pocket per
visit for care at HCA facilities. Id. at 7. Thus, the
availability of subsidized coverage is achieving the
congressional objective of promoting personal
responsibility.
Encouraging Care in Appropriate Settings:
Consistent with these changes, uninsured patients
are approximately three times more likely to seek
care in the ER than are patients on the federallyfacilitated Exchanges. HCA Report at 8. Similarly,
Exchange patients are more likely than uninsured
patients to receive medically necessary non-ER
outpatient care. Id. These significant differences
show that the ACA is achieving Congress’s goals of
reducing ER use and causing patients more often to
use the most appropriate care setting for their
conditions.
Access to Needed Care for Women: Fifty-three
percent of HCA’s uninsured patients are women.
That percentage spikes dramatically to 65% in the
federally-facilitated Exchange population.
HCA
Report at 5. Women with such Exchange coverage
who seek care at HCA facilities receive medically
necessary, non-ER outpatient services, such as
ultrasounds, at higher rates than uninsured women.
3

 Id. at 11. Congress was acutely concerned with the
health issues faced by women, and the particular
difficulties many women had in obtaining adequate
and affordable coverage. HCA’s data indicate that
many female patients who have moved from being
uninsured to insured through the Exchanges are
better able to access medically necessary care.
The Previously Insured: Among HCA’s
patients on the federally-facilitated Exchanges that
it had treated before, a majority were previously
insured.
HCA Report at 5.
Paradoxically, if
subsidies are eliminated, this large group of
previously insured Exchange enrollees would find it
more difficult to purchase affordable coverage than
before the ACA.
“Shared Responsibility”: HCA’s data illustrate
not just how the ACA is operating for patients, but
also how it is affecting hospitals and other providers.
HCA has already incurred hundreds of millions of
dollars in Medicare reimbursement cuts under the
ACA. HCA Report at 12. However, expanded
insurance on the Exchanges is beginning to offset
these costs with new revenues. Id. This was exactly
what Congress intended when it sought to have
every stakeholder in the health care system share
the costs and benefits of achieving universal
coverage. This “shared responsibility” framework
would be disrupted if subsidies were eliminated and
the expansion of insurance in the federallyfacilitated Exchange states were reversed.
2.
Every tool of statutory construction
confirms that the radical change in the operation of
the statute urged by Petitioners is unwarranted.
Congress did not, in a provision for calculating the
4

 amount of a taxpayer’s subsidy, hide a device for
making coverage unaffordable for millions of
Americans. Instead, the statutory text demonstrates
that Congress used the term “Exchange established
by the state” as a term of art that encompasses
federally-facilitated Exchanges. As HCA’s data help
demonstrate, Petitioners’ contrary interpretation
would disrupt critical aspects of the statutory
structure and thwart fundamental purposes of the
ACA.
In fact, the consequences of Petitioners’
interpretation are so absurd that Congress could not
possibly have intended them.
ARGUMENT
I. HCA’s Data Show That
Functioning As Intended.

The

ACA

Is

The ACA’s provisions are fundamentally
“interdependent.” Nat’l Fed’n of Indep. Bus. v.
Sebelius (“NFIB”), 132 S. Ct. 2566, 2670 (2012)
(Scalia, Kennedy, Thomas & Alito, JJ., dissenting).
HCA’s data show these interdependencies at work,
demonstrating that – in large part because subsidies
are available on the federally-facilitated Exchanges –
the statute is operating as Congress intended:
•

Congress designed the ACA so that
individuals who previously did not pay for care
would take personal financial responsibility
for that care. HCA’s data reveal that patients
on the federally-facilitated Exchanges, unlike
uninsured
patients,
make
significant
contributions to the cost of their treatment.

•

Congress sought to reduce ER usage by the
uninsured and to encourage patients to use
5

 more efficient forms of care. HCA’s data show
that patients on the federally-facilitated
Exchanges are using emergency rooms
significantly less than uninsured patients.
•

Congress intended to redress particular
challenges faced by women in obtaining
affordable insurance and accessing needed
care. HCA’s data indicate that women are
now benefitting from the availability of
Exchange coverage and have improved access
to needed diagnostic care and treatments.

•

Congress focused not just on securing coverage
for the uninsured, but also on improving
coverage for the previously insured.
Of
patients with federally-facilitated Exchange
coverage for whom HCA has data, a majority
previously had insurance. This population
would find it substantially more difficult than
before the ACA to obtain coverage if the
subsidies are eliminated.

•

The ACA embodied a carefully-constructed
“shared responsibility” framework under
which health care providers would shoulder
some of the costs but also share in some of the
benefits. HCA’s data show that hospitals have
taken
significant
cuts
in
federal
reimbursements under the ACA, but that
these cuts are beginning to be offset by new
revenues from expanded Exchange insurance.

Together, HCA’s data illuminate the basic
structural issue in this case. Interpreted to make
subsidies available on the federally-facilitated
Exchanges, the ACA functions as a coherent whole
6

 and achieves Congress’s goals.
Interpreted to
withhold subsidies from individuals in states with
federally-facilitated Exchanges, the law comes apart
at the seams, jeopardizing important achievements
and leading to consequences Congress could not
possibly have intended.
A. Patients Are Taking Greater Personal
Responsibility For Their Health Care
Costs.
One of the problems Congress sought to
address in the ACA was the reality that individuals
who were not able to purchase insurance often
became “free riders,” accessing care in emergency
rooms that they cannot and do not pay for. The costs
of this “uncompensated care” were passed on
throughout the economy. HCA’s data indicate that
subsidized coverage on the federally-facilitated
Exchanges diminishes the free-rider problem and
increases the percentage of people who take personal
responsibility for their health care choices.
In 2014, 89.6% of HCA’s uninsured patients
paid nothing for the health care services provided by
HCA’s facilities. HCA Report at 6. The percentage
paying $0 remains virtually unchanged even if the
calculation considers only uninsured individuals
with incomes above 200% of the federal poverty level
(under its charity care policy, HCA does not charge
uninsured patients whose incomes are at or below
200% of the poverty line). Id.
By contrast, in a majority of cases, HCA
patients who are enrolled in a federally-facilitated
Exchange pay their cost-sharing obligations. While
7

 insurers are required to provide free preventive
services (e.g., cancer screenings), Exchange plans
often require patients to pay sizable deductibles, copayments, and co-insurance, even for ER visits.
HCA’s
patients
on
the
federally-facilitated
Exchanges
who
make
these
cost-sharing
expenditures pay on average $390 out-of-pocket for
care at HCA facilities. HCA Report at 7.
This level of cost-sharing may be significant
for many Exchange patients.
Nationally,
approximately 87% of Exchange enrollees qualify for
For example, an individual making
subsidies.2
$29,300 per year, or just over 250% of the 2014
federal poverty level for a single person, would
qualify for subsidized premiums through an
Exchange (but not cost-sharing subsidies). Thus, for
a visit to HCA facilities (such as an ER or inpatient
visit), she could spend $390 – representing 16% of
her pre-tax monthly income.
Congress concluded that individuals should
pay for a share of their health costs in this way.
Doing so was a way to promote personal
responsibility, smarter health care choices, and the
use of less expensive modes of care.
Fostering personal responsibility and reducing
uncompensated care were basic goals of the ACA.
Office of Assistant Sec’y for Planning and Evaluation, U.S.
Dep’t of Health and Human Servs., ASPE Issue Brief, Health
Insurance Marketplace 2015 Open Enrollment Period: December
Enrollment Report 7–8, 14, 24 (Dec. 30, 2014), available at
http://tinyurl.com/pzterwl.
2

8

 Congress called the individual mandate penalty a
“[s]hared responsibility payment,” 26 U.S.C.
§ 5000A(b), and located it in the part of the Act
entitled “Individual Responsibility.” ACA tit. I,
subtit. F, pt. I. An express statutory reason for
pursuing near-universal coverage was to reduce the
$43 billion (as of 2008) in annual uncompensated
care that the uninsured passed on to insured
families. 42 U.S.C. § 18091(2)(F); NFIB, 132 S. Ct.
at 2585 (op. of Roberts, C.J.). Members of Congress
further explained that the ACA was intended to
“promote personal responsibility,” 155 Cong. Rec.
23,370 (Oct. 1, 2009) (Sen. Mark Begich), and reduce
the shifting of uncompensated care costs. See 156
Cong. Rec. H1801 (daily ed. Mar. 20, 2010) (Rep. Tim
Ryan) (“[I]t is cheaper for us as a country, since we
are all already paying for [the uninsured] anyway
through higher insurance premiums, it is cheaper for
everybody if we give them an insurance card and
make them pay something. No more free riders.
Everyone is going to have to pay something.”).
In designing the subsidies themselves,
Congress was similarly attuned to the importance of
individuals maintaining a personal stake in their
care. Thus, Congress included income-based caps on
the premium subsidies available to low-income
individuals.
26 U.S.C. §§ 36B(b)(2), (b)(3)(A)(i).
Moreover, for even the lowest income individuals
eligible for subsidies, cost-sharing assistance was
designed so that it would not completely eliminate an
enrollee’s obligation to share in the total cost of care
through co-payments and deductibles. 42 U.S.C.
§ 18071(c).
9

 Based on a full year of HCA’s data for 2014,
subsidized coverage on the Exchanges causes
individuals and families to take personal
responsibility for their care.
Once they gain
Exchange coverage, they pay a meaningful amount
out of their own pockets, and they avoid generating
uncompensated costs that are paid for by businesses
and individuals throughout the economy. If the
subsidies are invalidated for the federally-facilitated
Exchanges, many individuals on those Exchanges
(including those who were previously insured, see
infra pp. 18–23) will likely lose coverage and no
longer take personal financial responsibility for their
care.
In sum, numerous statutory provisions and
the overall statutory structure confirm that Congress
wanted individuals who receive care to have a
financial stake in, and share responsibility for, the
care they receive. Petitioners’ interpretation would
take that away.
B. HCA’s Exchange Patients Use Emergency
Rooms At Dramatically Reduced Rates,
And Have Better Access To Outpatient
Services.
Congress intended the ACA to tackle the
problem of ER use by the uninsured for nonemergency health care issues. HCA’s data show that
the ACA has in fact measurably reduced ER visits
for the newly insured, and has likewise increased the
use of non-ER, medically necessary outpatient
services.

10

 In order to assess the ACA’s effects on ER
usage, HCA measured the ratio of ER visits to
inpatient admissions.3 HCA Report at 8. In 2014,
uninsured patients visited the ER approximately ten
times for every inpatient admission. Id. By contrast,
individuals insured through the federally-facilitated
Exchanges are visiting the ER approximately three
times for every inpatient admission. Id. Thus,
HCA’s data indicate that uninsured patients are
about 300% more likely than Exchange patients to
rely on ER care.
Apart from ER usage, HCA has also measured
improved access to needed outpatient services, again
using inpatient admissions as a control. These data
similarly suggest that the ACA is having its intended
effect. In 2014, uninsured individuals made non-ER
outpatient visits to HCA facilities approximately 1.4
times for every inpatient admission. HCA Report at
8. By contrast, individuals insured through the
federally-facilitated
Exchanges
are
making
outpatient visits to HCA facilities 2.8 times for every
inpatient admission. Id. HCA’s data reflect that the
likelihood that an individual will access outpatient
care nearly doubles when he or she has coverage
through a federally-facilitated Exchange.
Thus, at the same time that Exchange
patients are relying less on the ER, they are
Because inpatient admissions are typically unavoidable, the
insured and uninsured tend to be admitted for inpatient
services at a similar rate. This makes inpatient admissions a
useful “control” against which to compare ER use and
outpatient visits.

3

11

 receiving more outpatient care than the uninsured,
including care (such as chemotherapy) that is
typically unavailable in the ER. That care is being
provided in more appropriate and cost-effective
settings.
This striking reduction of ER usage and
expansion of outpatient care in HCA facilities is a
predictable result of affordable coverage through
subsidized insurance on the Exchanges. Patients
without coverage may wait until they are seriously
ill to seek care because they cannot afford to pay for
primary care4; when they do fall ill, they typically
turn to the ER, where most uninsured individuals
pay nothing. Supra p. 7. Patients on the federallyfacilitated
Exchanges,
by
contrast,
take
responsibility for a share of their costs, supra pp. 7–
8, and so have both the ability and a financial
incentive to seek timely and medically necessary
outpatient care, and to avoid ER visits for care which
could be provided in a more efficient setting.
These changes in the way patients are
accessing care were core objectives of the ACA.
Overuse of emergency rooms and delayed access to
appropriate care were symptoms of the problem of
the uninsured: as Congress expressly found, “[t]he
cost of providing uncompensated care to the
uninsured was $43,000,000,000 in 2008,” which
See, e.g., Nat’l Ctr. for Health Statistics, U.S. Dep’t Health
and Human Servs., Health, United States, 2012, at 235 tbl. 73
(May 2013), available at http://tinyurl.com/o5h6e22 (as of 2011,
35% of uninsured did not seek or delayed medical care due to
cost compared with 7.4% of privately insured).
4

12

 “increas[ed] family premiums by on average over
$1,000 a year.” 42 U.S.C. § 18091(2)(F). Indeed, the
goal of limiting ER usage in favor of more efficient
forms of care is manifest throughout the ACA.5
Members of Congress echoed this central goal
of “preventing [the uninsured] from depending on
expensive emergency services in place of regular
health care.” 155 Cong. Rec. 33,024 (Dec. 22, 2009)
(Sen. Patrick Leahy). The pre-ACA increase in the
number of Americans who were “not . . . able to
afford insurance” meant they were “going to show up
at hospital emergency rooms,” which “costs a lot.”
155 Cong. Rec. 29,762 (Dec. 8, 2009) (Sen. Barbara
Boxer); see also 156 Cong. Rec. H1801 (daily ed. Mar.
20, 2010) (Rep. Tim Ryan) (“[W]e have 30 millionplus people in the United States of America who
have no preventive care at all, dumped into our
emergency rooms, much sicker than they need to
be.”).
Members of Congress emphasized the
importance of patients receiving non-emergency care
in the most appropriate setting so that they could
5 See 42 U.S.C. § 18022(b)(1)(I) (requiring coverage for
“[p]reventive and wellness services and chronic disease
management” as an Essential Health Benefit); id. § 300gg–
13(a) (requiring plans to cover certain preventive health
services free of cost-sharing); id. § 300gg–17(a) (requiring the
development of health plan reporting requirements related to
care coordination, disease management, medical homes, and
preventing hospital readmissions); id. § 1395cc–5(a) (requiring
the Secretary to test an outcome-based health care delivery
model to be judged, inter alia, on its success in “reducing
emergency room visits”); id. § 256a–1 (requiring the Secretary
to establish “community health teams” that, inter alia, ensure
“access to the continuum of health care services in the most
appropriate setting”).

13

 avoid more expensive emergency and inpatient care.
See 155 Cong. Rec. 23,038 (Sept. 30, 2009) (Rep.
Jason Altmire) (“[W]e need to get [people] their
health care in the most appropriate, cost-efficient
setting . . . .”).
HCA’s experience shows that subsidized
coverage on the federally-facilitated Exchanges is
having its intended effect of reducing ER usage and
encouraging greater use of medically necessary
outpatient care. The likely effect of stripping the
subsidies is that many Exchange enrollees will join
the ranks of the uninsured and revert to the patterns
of ER use that Congress sought to counteract. In
fact, as discussed below, many individuals on the
Exchanges who were previously insured would likely
lose access to affordable coverage as a result of
Petitioners’ interpretation. See infra pp. 18–23.
Petitioners’ construction would thus not only
frustrate the legislative aim of reducing ER usage
and promoting use of more appropriate forms of care,
it would actually make matters worse than they were
before the ACA. This could not have been Congress’s
intent, given its express goal of reducing the delivery
of uncompensated care and driving non-emergency
care out of the ER.
C. Women Comprise Two-Thirds Of HCA
Patients On The Exchanges And Receive
Care
That
Might
Otherwise
Be
Unavailable To Them.
Another core pillar of the ACA was Congress’s
goal of ensuring that women are able to meet their
health care needs. Based on HCA’s data, those needs
14

 are being met far more than they were prior to the
ACA’s enactment.
Among the uninsured, 53% of HCA’s patients
are women. HCA Report at 5. On the federallyfacilitated Exchanges, by contrast, 65% of HCA’s
patients are women, outnumbering men nearly two
to one. Id.
Women enrolled on the federally-facilitated
Exchanges access care in greater numbers in part
because in the relevant age range – up to 65 –
women are at greater risk for certain health issues.6
Consistent with this fact, HCA’s data show that a
remarkable 77% of the oncology care given to
federally-facilitated Exchange patients at HCA
facilities is for women. HCA Report at 10.
Ultrasounds provide an illustration of how
women with federally-facilitated Exchange coverage
are better able to access needed health services. If a
woman has a breast lump or mass or an abnormal
mammogram, it is common for a physician to order
an ultrasound to determine if it is a benign cyst or a

For example, in 2013, cancer was the leading cause of death
among women in the 35–54 age group, with breast cancer
accounting for the largest number of cancer deaths; there are
also approximately 2.9 million breast cancer survivors in the
United States. See Ctrs. for Disease Control and Prevention,
Nat’l Ctr. for Health Statistics, Underlying Cause of Death
1999–2013, on CDC WONDER Online Database, available at
http://tinyurl.com/ma8w85l; Am. Cancer Soc’y, What are the key
statistics about breast cancer?, http://tinyurl.com/32e6vej (last
revised Dec. 31, 2014).

6

15

 malignancy.7 These breast ultrasounds are not,
however, usually available in an ER, the primary
site of care for many uninsured women. The result:
HCA’s patients enrolled in the federally-facilitated
Exchanges are over three times more likely to obtain
an ultrasound for a breast lump, mass, or abnormal
mammogram than a woman who is uninsured. HCA
Report at 11. This improved access to an important
diagnostic tool for patients at risk for breast cancer
would likely be reversed if subsidies are eliminated.
Without access to affordable coverage, patients
will also face reduced access to treatment options for
chronic conditions, such as cancer.
Under the
Emergency Medical Treatment and Labor Act
(EMTALA), hospitals must provide stabilizing
treatment for “emergency” medical conditions, but
not non-emergency care, such as chemotherapy and
radiation.8 Although Medicaid may provide some
coverage for women diagnosed with breast or cervical
cancer, such coverage varies by state, and is limited
to women screened and diagnosed through certain
programs for low-income individuals for which many
Johns
Hopkins
Medicine,
Breast
Ultrasound,
http://tinyurl.com/mkvfg2s (last visited Jan. 22, 2015); see also
Am. Coll. of Radiology, ACR Practice Parameter for the
Performance of a Breast Ultrasound Examination 1–2 (amended
2014, Resolution 39), available at http://tinyurl.com/meswwoe;
Regina J. Hooley et al., Breast Ultrasonography: State of the
Art, 268 Radiology 642, 643 (Sept. 2013) (“Ultrasonography . . .
has become an indispensable tool in breast imaging.”).
7

42 U.S.C. § 1395dd; see also Aaron Carroll, Why emergency
rooms don’t close the health care gap, CNN, May 7, 2012,
http://tinyurl.com/p6wqd3t.

8

16

 current Exchange enrollees will not qualify. See 42
U.S.C. § 1396a(a)(10)(A)(ii)(XVIII); id. § 1396a(aa).
Without coverage, some patients may turn to public
hospitals, but capacity at these institutions may be
strained and there may be long waits for
appointments.9
As a result, the elimination of
subsidies would adversely affect patients – and
especially women – who require treatment for lifethreatening diseases like cancer.
Congress was acutely concerned with the
health care needs of women in enacting the ACA.
For example, the ACA bans gender-based rate
discrimination that made quality coverage less
affordable for women.
42 U.S.C. § 300gg.
In
requiring health plans to cover all “Essential Health
Benefits,” Congress directed HHS to “take into
account the health care needs of diverse segments of
the
population,
including
women.”
Id.
§ 18022(b)(4)(C).
Moreover, Congress required
health plans to make numerous preventive services
available for free, specifically mentioning the
preventive care needs of women. Id. § 300gg–
13(a)(1), (4).10 Similarly, Congress prohibited health
Laurie E. Felland & Lucy Stark, Local Public Hospitals:
Changing with the Times, Ctr. for Studying Health Sys.
Change, Research Brief No. 25, at 1–2 (Nov. 2012), available at
http://tinyurl.com/pll4n7y (citing “inadequate capacity” and
“long waits”).

9

See also HealthCare.gov, Preventive health services for
women, http://tinyurl.com/n5jp4z8 (last visited Jan. 23, 2015)
(listing 22 preventive health services for women that plans
must offer without cost-sharing).

10

17

 plans from requiring prior authorizations or referrals
for in-network obstetrical or gynecological care. Id.
§ 300gg–19a(d)(1).
HCA’s data reveal that women make up
nearly two-thirds of its federally-facilitated
Exchange patients, a substantial increase from the
uninsured population. The data show, moreover,
that this Exchange coverage is enabling better access
to needed care. Congress could not have intended
the achievement of this important objective to be
unraveled in states that elect not to administer their
own Exchanges.
D. A Substantial Share Of HCA’s Patients
On The Exchanges Were Previously
Insured, And Would Be At Risk Of
Becoming Uninsured If Petitioners
Prevail.
The ACA sought to improve access to quality,
affordable health coverage, not only for the
uninsured population but also for those who
previously had insurance. Previously uninsured
individuals, for whom the ACA’s subsidies now make
insurance affordable, have been an understandable
focus of this case. However, the stakes may be just
as high for the many Americans now insured on the
Exchanges who had coverage prior to enactment of
the ACA.
Absent functioning Exchanges with
subsidized coverage available, the ACA could have
the paradoxical effect of making it more difficult for
these individuals to obtain insurance.
The previously insured account for a majority
of HCA Exchange patients for whom relevant data
18

 are available. In 2014, approximately 51,000 of
HCA’s
patients
on
the
federally-facilitated
Exchanges had previously been provided care by
HCA. HCA Report at 5. Of that group, 56% were
insured at the time of their prior treatment. Id.
This is consistent with national surveys concluding
that between 37% and two-thirds of all Exchange
enrollees were previously insured.11
This large group of previously insured
Americans will face an extremely difficult situation if
subsidies are eliminated. While they could retain
their coverage at an “unsubsidized” rate, many if not
most will find that insurance unaffordable. For
example, a waitress in Jacksonville, Florida has a
mean annual income of $21,230 (including tips), or
182% of the federal poverty level for a single person

11 See Press Release, New Survey: After First ACA Enrollment
Period, Uninsured Rate Dropped from 20 Percent to 15 Percent;
Largest Declines Among Young Adults, Latinos, and LowIncome People, The Commonwealth Fund (July 10, 2014),
available at http://tinyurl.com/k4xuyd2 (37% of Exchange
enrollees previously insured); Liz Hamel et al., Survey of NonGroup Health Insurance Enrollees, Henry J. Kaiser Family
Found. (June 19, 2014), http://tinyurl.com/q6wc56r (43% of
Exchange enrollees previously insured); Katherine Grace
Carman & Christine Eibner, Survey Estimates Net Gain of 9.3
Million American Adults with Health Insurance, RAND Corp.
(Apr. 8, 2014), http://tinyurl.com/lwo2dze (two-thirds of
Exchange enrollees previously insured); see also Amit Bhardwaj
et al., Individual market: Insights into consumer behavior at the
end of open enrollment, McKinsey & Co. (May 8, 2014),
http://tinyurl.com/q366knz (three-quarters of individual market
enrollees previously insured, but data not limited to
Exchanges).

19

 (the national median, $18,590, is even lower).12
Currently, she can obtain a “silver” plan on the
state’s federally-facilitated Exchange, with premium
subsidies and cost-sharing assistance, for $96 per
month (with a $1,450 deductible) or $115 per month
(with no deductible).
However, unsubsidized
coverage under the least expensive “bronze” plan
would cost her $198 per month – more than 11% of
her pre-tax income – and she would be responsible
for a $6,300 deductible.13 This is not affordable
coverage. Cf. 26 U.S.C. § 5000A(e)(1) (classifying an
individual for whom coverage costs more than 8% of
income as one who “cannot afford coverage”).
In these circumstances, the healthy may leave
the insurance market, which could result in adverse
selection and an eventual “death spiral.” Two recent
studies suggest that the elimination of subsidies will
cause premiums to rise by at least 35 to 43.3 percent,
respectively.14 These studies predict that enrollment
See Bureau of Labor Statistics, Occupational Employment
and Wages, May 2013: 35-3031 Waiters and Waitresses,
available at http://tinyurl.com/om8t6gf (last modified Apr. 1,
2014).

12

13 All of the figures in this paragraph are based on searches of
HealthCare.gov conducted on January 14, 2015, for a 35-yearold, non-smoking applicant. These numbers, of course, reflect
current market conditions, in which there is a diverse risk pool.
Without subsidies, actual premiums would likely be higher as a
result of adverse selection.

Linda J. Blumberg et al., The Implications of a Supreme
Court Finding for the Plaintiff in King v. Burwell: 8.2 Million
More Uninsured and 35% Higher Premiums 6–7 & fig.1, Urban
Institute (2015), available at http://tinyurl.com/lcwe5tl
[hereinafter Urban Analysis]; Christine Eibner & Evan
Saltzman, Assessing Alternative Modifications to the Affordable
(continued…)

14

20

 in ACA-compliant individual market plans would fall
by 68 to 69 percent,15 and that the number of
uninsured would increase by 8.2 million in states
with federally-facilitated Exchanges.16 “An ACAcompliant market without premium tax credits
would consist of a relatively small number of highrisk individuals, preventing the majority of potential
enrollees from purchasing affordable coverage.”17
The previously insured would fare no better in
the off-Exchange individual market. They might
seek out “catastrophic coverage” plans, but even
these must comply with the ACA’s requirements, and
as a result are unlikely to be much more affordable
than a bronze plan. Transitional and grandfathered
plans may be somewhat less expensive, but are not
open to new enrollment, and therefore are
unavailable to those presently insured on the
Exchanges.18
Moreover, those currently in
transitional plans must exit those plans by
September 2017,19 forcing numerous currently
Care
Act
20,
Rand
Corp.
(2014),
available
http://tinyurl.com/mmf8j88 [hereinafter Rand Analysis].
15

Urban Analysis at 1; Rand Analysis at 20.

16

Urban Analysis at 4.

17

Rand Analysis at 2.

at

See 42 U.S.C. § 18011; Letter from Gary Cohen, Dir., Ctr. for
Consumer Info. and Ins. Oversight, to Ins. Comm’rs (Nov. 14,
2013), available at http://tinyurl.com/lp79qpj.
18

19 See Memorandum from Gary Cohen, Dir., Ctr. for Consumer
Info. and Ins. Oversight Regarding Extended Transition to
Affordable Care Act-Compliant Policies (Mar. 5, 2014),
available at http://tinyurl.com/k5t5o27.

21

 insured individuals onto the market for ACAcompliant plans. As to grandfathered plans, there is
no guarantee that insurers will continue offering
these plans, and enrollees in those plans may
likewise be forced to find new coverage. In short,
those who are presently insured on the federallyfacilitated Exchanges, or who would need to rely on
those Exchanges in the coming years, will have no
good options if subsidies are eliminated.
This likely outcome is the result of an
anticipated aspect of the statutory design. A key
component of the ACA was a series of reforms to
guarantee coverage regardless of preexisting
conditions and to improve the quality of coverage on
the individual market.20 As Congress appreciated,
guaranteeing coverage and improving the quality
and comprehensiveness of insurance would – all else
equal – greatly increase the cost of premiums. See,
e.g., Letter from Douglas W. Elmendorf, Dir., CBO,
to the Honorable Evan Bayh, U.S. Senate,
Attachment, at 4–7 (Nov. 30, 2009), available at
http://tinyurl.com/oeman27
(predicting
that
insurance market reforms would, standing alone,
cause premiums to rise substantially). Subsidies
(together with other provisions) ensured that all else
20 These reforms included prohibiting discrimination against
individuals with preexisting conditions, 42 U.S.C. § 300gg–3(a);
prohibiting premium rating on the basis of health status, id.
§ 300gg(a); guaranteeing the issuance of coverage to any
individual, id. § 300gg–1; requiring that health plans cover a
range of “Essential Health Benefits,” id. § 300gg–6(a); and
establishing minimum actuarial values for given levels of
coverage, id. §§ 18022(a)(3), (d).

22

 would not be equal.
Without them, Congress
understood, premiums would rise significantly and
affordable coverage would be out of reach for many.
HCA’s patients (and millions of other
Americans) on the federally-facilitated Exchanges
will be affected by this case regardless of whether
they had insurance coverage prior to the ACA. Not
only will previously uninsured individuals once again
be without coverage options, but the substantial
share of HCA’s federally-facilitated Exchange
patients who were previously insured will likely not
have access to any well-functioning insurance
market as an “escape route.” Congress, in expressly
designing the ACA to “achieve near-universal
coverage,” 42 U.S.C. § 18091(2)(D), could not have
intended to create a structure that would predictably
cause the uninsured rate to increase in federallyfacilitated Exchange states.
E. The
ACA’s
“Shared
Responsibility”
Framework Is Functioning As Congress
Intended.
Central to the ACA was a basic economic and
political compromise: the key stakeholders in the
country’s health care system – “individuals, insurers,
governments, hospitals, and employers” – would
share the costs of achieving near-universal coverage,
while the Act would, “at the same time, offset[]
significant portions of those costs with new benefits
to each group.” NFIB, 132 S. Ct. at 2670 (Scalia,
Kennedy, Thomas & Alito, JJ., dissenting). This
balance is beginning to work as Congress intended:
HCA has faced major reimbursement cuts from the
time the ACA was enacted, but beginning in 2014, it
23

 is now seeing offsetting revenue gains as a result of
newly insured patients on the federally-facilitated
Exchanges.
In negotiations leading up to the ACA,
hospitals agreed to accept, and Congress codified in
the law, at least $155 billion in cuts to federal
reimbursements hospitals otherwise would have
received over ten years. See ACA §§ 2551, 3025,
3133, 3401.21 The agreement to cuts of this nature
was “part of a health overhaul that assumes
coverage of 95 percent of the American people.”22
The CMS Office of the Actuary has
subsequently estimated the amount of these cuts to
all providers as at least $283 billion over ten years.23
For HCA, these ACA provisions have significantly
reduced the reimbursements that would otherwise
have been received from the Medicare program.
Looking only at states with federally-facilitated
Exchanges, the ACA has already cut revenues to
HCA by approximately $600 million between 2010–
2014.
HCA Report at 12.
Those substantial
21 John Reichard, Biden Announces Deal With Hospitals to Cut
Medicare, Medicaid Payments by $155 Billion, CQ Healthbeat,
July 8, 2009, available at http://tinyurl.com/lj8tba4.
22

Id.

The Estimated Effect of the Affordable Care Act on Medicare
and Medicaid Outlays and Total National Health Care
Expenditures, Statement of Richard S. Foster, FSA, Chief
Actuary, Ctrs. for Medicare & Medicaid Servs., U.S. Dep’t of
Health and Human Servs., Before the Subcomm. on Health of
the H. Comm. on Energy and Commerce, 112th Cong. (2011),
available at http://tinyurl.com/pfgzlqd.

23

24

 decreases started on April 1, 2010, well before the
ACA’s insurance expansion began to take effect.
Moreover, the ACA calls for continued, significant
annual reimbursement cuts through at least 2019.
As Congress intended, however, these cuts are
just beginning to be offset by increased revenues
resulting from newly insured Exchange patients.
HCA estimates that, in 2014, it had approximately
$250 million in incremental revenue from treating
previously uninsured patients who now have
coverage through the federally-facilitated Exchanges.
HCA Report at 12. Thus, through December 31,
2014, HCA has seen a cumulative net reduction in
revenues of approximately $350 million as a result of
the ACA for facilities operating in states with
federally-facilitated Exchanges.
In other words,
HCA has recovered less than half of its
reimbursement cuts in federally-facilitated Exchange
states through increased coverage.
Increased
revenue through expanded insurance on these
Exchanges is necessary for HCA to be able to “make
up” this differential over the coming years. If those
incremental revenue gains, underpinned by the
availability of subsidized coverage, do not continue,
HCA’s losses from the ACA’s provider cuts would not
be offset as Congress intended.
In fact, if the subsidies are eliminated, the
impact could be even worse. The calculation above
reflects only the increased revenue from patients on
the Exchanges who were previously uninsured. But
as discussed, without subsidies on the federallyfacilitated Exchanges, many previously insured
Americans would likely lose access to affordable
25

 coverage. If those individuals no longer pay for their
care (like the overwhelming majority of HCA’s
uninsured patients), the net impact of the ACA’s
reimbursement cuts would be even greater.
This is the exact opposite of the “shared
responsibility” framework Congress enacted. NFIB,
132 S. Ct. at 2670 (Scalia, Kennedy, Thomas & Alito,
JJ., dissenting).
As the joint dissent in NFIB
explained, hospitals accepted “reductions in the
reimbursements [the government] pays to hospitals”
under Medicare and Medicaid, but in return were to
“benefit from the decrease in uncompensated care”
that would come with adding to the ranks of the
insured. Id. The legislative record confirms that
this balanced approach was, in Congress’s view, the
reason “we can reduce our payments to hospitals in
America, because the amount of uncompensated care
they currently have will be dramatically reduced.”
155 Cong. Rec. 29,303 (Dec. 3, 2009) (Sen. Ben
Cardin).24
It could not have been Congress’s intent to
expose hospitals to mandatory cuts but make
subsidized
Exchange
coverage
optional.
“Invalidating the key mechanisms for expanding
Congress understood that this balance was necessary not just
economically but politically. As the then-Chairman of the
Senate Finance Committee explained, “[w]hen President
Clinton attempted health care reform,” hospitals and insurers
opposed it. This time, by contrast, there was a “deal” in which
hospitals agreed to accept a decrease in reimbursements
because “everybody [would have] health insurance.” 155 Cong.
Rec. 29,332 (Dec. 3, 2009) (Sen. Max Baucus).

24

26

 insurance coverage . . . without invalidating the
reductions
in
Medicare
and
Medicaid
[reimbursements], distorts the ACA’s design of
‘shared responsibility.’” NFIB, 132 S. Ct. at 2672
(Scalia, Kennedy, Thomas & Alito, JJ., dissenting).
Petitioners’ interpretation would “distort[] the ACA’s
design” in exactly that way. Whereas the NFIB joint
dissent recognized that Congress intended the ACA’s
insurance-expanding provisions and its provider cuts
to stand or fall together, Petitioners in effect ask this
Court to “sever” the former while retaining the
latter.
Moreover, the ACA’s objective of reducing
uncompensated care does not benefit only health
care providers. Rather, the costs of treating the
uninsured are ultimately shared by insured families
and businesses that provide insurance to their
employees (including HCA). A radical change to the
availability of affordable coverage under the ACA
could have negative effects on businesses and
individuals throughout the economy, and at a
minimum could produce considerable economic
uncertainty.25

Consistent with the negative economic consequences of
making coverage less affordable, not one business or business
association, small or large, has filed a brief in support of
Petitioners’ attempt to eliminate subsidies from the federallyfacilitated Exchanges.
25

27

 II. The ACA Provides Subsidies To Residents
Of States That Elect Not To Administer An
Exchange.
HCA’s experience shows that, because of the
availability of subsidized coverage on the federallyfacilitated Exchanges, the ACA is functioning as
intended. Petitioners seek a radical change in this
status quo, one that could jeopardize coverage for
millions of Americans, risk destabilizing insurance
markets, disrupt the “shared responsibility”
framework of the ACA, and inject uncertainty into
the economy. Basic tools of statutory construction
refute Petitioners’ interpretation, as HCA’s data help
confirm.
A. Petitioners’
Interpretation
Inconsistent With The Statutory Text.

Is

The grant of premium subsidies to low- to
moderate-income families is a critical element of the
ACA, codified under the rubric of “Affordable
Coverage Choices for All Americans.” ACA tit. I,
subtit. E. The statute, on its face, makes subsidies
available to any “applicable taxpayer,” a category
defined only by income level, not state of residence.
26 U.S.C. §§ 36B(a), (c)(1). Thus, for any American
with income between 100%–400% of the federal
poverty level, “there shall be allowed as a credit” a
premium subsidy. Id. § 36B(a).
In Petitioners’ view, however, Congress made
residents of every state eligible for a subsidy, only to
then deny subsidies to every resident of certain
states through the application of a formula for
calculating the amount of the subsidy. Specifically,
28

 because the amount of the subsidy is tied to the cost
of a plan offered on an “Exchange established by the
State,” id. § 36B(b)(2)(A), Petitioners argue that the
calculation works out to $0 for every resident of a
federally-facilitated Exchange state.
Congress does not hide “elephants” in such
“mouseholes.” Whitman v. Am. Trucking Ass’ns, 531
U.S. 457, 468 (2001). No member of Congress – not
to mention the millions of Americans who have relied
on the promise of subsidies and are now
overwhelmingly satisfied with their coverage26 –
would have understood these five words buried in a
formula as making the promise of affordable
coverage illusory for large swathes of the population.
The text of the statute confirms what common
sense suggests: the ACA’s subsidy-calculation
provision does not have the massive import
Petitioners seek to give it. Rather, the ACA’s
definitions make clear that every “Exchange” is
treated as “established under section 1311” – the
section obligating states to establish Exchanges –
even when the federal government is in fact
operating the Exchange under section 1321. 42
U.S.C. § 300gg–91(d)(21).
Section 1311 itself
specifies that every Exchange is, by operation of law,
“a governmental agency or nonprofit entity that is
established by a State.” 42 U.S.C. § 18031(d)(1)
(emphasis added). And in directing HHS to operate
See Frank Newport, Newly Insured Through Exchanges Give
Coverage Good Marks, GALLUP (Nov. 14, 2014),
http://tinyurl.com/pjr57mh; Hamel et al., supra n.11.

26

29

 “such Exchange,” Congress confirmed that a
federally-facilitated Exchange under section 1321 is
still, for statutory purposes, an Exchange established
by the state under section 1311. ACA § 1321, 42
U.S.C. § 18041(c)(1).
Together, these provisions
make clear that Congress used “Exchange
established by the State” in § 36B as a statutory
term of art, not as a roundabout way to deny
affordable coverage to residents of states that decline
to run their own Exchange.
Congress’s use of “established by the state” as
a term of art is confirmed throughout the ACA. For
example, if the phrase excludes federally-facilitated
Exchanges, those Exchanges would have no
customers, because the only individuals “qualified” to
buy coverage on an Exchange are those who “reside[]
in the State that established the Exchange.” 42
U.S.C. § 18032(f)(1)(A)(ii). Nor could a federallyfacilitated Exchange offer any plans under
Petitioners’ approach. An Exchange can only offer
plans that are “in the interests of qualified
individuals,” 42 U.S.C. § 18031(e)(1)(B), and
Petitioners concede that under their interpretation,
there are no “qualified individuals” in states with
federally-facilitated Exchanges. Petitioners’ Br. 48–
49. If, on the other hand, one reads the statute as a
coherent whole, including the ACA’s provisions
defining every Exchange as an “Exchange established
by the State,” these anomalies vanish and the
Government’s construction of § 36B makes perfect
sense.

30

 B. Petitioners’
Inconsistent
Structure.

Interpretation
Is
With
The
Statutory

This Court has repeatedly stressed the
importance of avoiding interpretations that would
cause “the structure of the Act . . . [to] be
compromised to a serious degree.” Maracich v.
Spears, 133 S. Ct. 2191, 2203 (2013). Rather, the
Court strives for interpretations that make sense of a
provision’s “place in the overall statutory scheme.”
FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 133 (2000) (internal quotation marks and
citation omitted).
Here, however, Petitioners’
interpretation would disrupt a statutory scheme
whose provisions are uniquely “interdependent.”
NFIB, 132 S. Ct. at 2670 (Scalia, Kennedy, Thomas
& Alito, JJ., dissenting).
1. Subsidies and the “Backup” Exchanges. In
enacting § 1321(c) to require HHS to run Exchanges
if states do not, Congress obviously intended to
accomplish something. See Nw. Austin Mun. Util.
Dist. No. 1 v. Holder, 557 U.S. 193, 211 (2009) (it is
“unlikely that Congress intended [a] provision to
have such limited effect” that it would be “all but a
nullity”).
But Petitioners have no plausible
explanation for what the point of § 1321(c) would be
under their interpretation.
“Without the federal subsidies, individuals
would lose the main incentive to purchase insurance
inside the exchanges” and insurers would “be
unwilling to offer insurance inside of exchanges.”
NFIB, 132 S. Ct. at 2674 (Scalia, Kennedy, Thomas
& Alito, JJ., dissenting). As a result, § 1321(c)
31

 Exchanges without subsidies “would not operate as
Congress intended and may not operate at all.” Id.
Moreover, as discussed above, even if plans did elect
to continue participating in the Exchanges, their
products would likely be out of reach for most, as
premiums could soar in the absence of subsidies. See
supra pp. 20–23.
It is no answer that Congress meant the
“backup” Exchanges to do nothing more than provide
a forum for “one-stop shopping,” Petitioners’ Br. 2,
37, since the plans offered at that “one-stop shop”
would be unaffordable – if they exist at all. Nor is it
any answer that Congress failed to consider the
possibility that states would not establish their own
Exchanges. Petitioners’ Br. 43. This is not like
Medicaid expansion. Congress fully understood “that
some states might decline federal funding for the
operation of a ‘health benefit exchange,’” and so
(unlike Medicaid) it “provided a backup scheme.”
NFIB, 132 S. Ct. at 2665 (Scalia, Kennedy, Thomas
& Alito, JJ., dissenting).27
The Court should reject Petitioners’ strained
interpretation of the statutory structure, under
which Congress went to the trouble of establishing “a
backup scheme” that could have little or no effect.
27 One opponent of the ACA in Congress specifically objected to
the fact that a “Federal agency” would be “charged with”
running backup Exchanges, and presciently predicted that the
federal government would run the Exchanges in “up to 37”
states that “may not set up the State-based exchange that the
bill . . . calls for.” 156 Cong. Rec. H2207 (daily ed. Mar. 22,
2010) (Rep. Michael Burgess).

32

 2. Subsidies and the ACA’s Market Reforms.
As discussed above, HCA’s data show that slightly
more than half of its patients on the federallyfacilitated Exchanges previously had insurance. But
because of the ACA’s reforms of the individual
market, those who lose their coverage on the
Exchanges will likely find it difficult to afford new
coverage, whether or not they were previously
insured. Congress took these dynamics into account
when it offset its market reforms – which it knew
would make premiums rise – with countervailing
measures to bring premiums down, including
subsidies. See supra pp. 22–23.
Under the ACA’s interconnected statutory
scheme, subsidized coverage was critical to enacting
market reforms while keeping insurance affordable
and premiums manageable. Indeed, the statutory
text reflects Congress’s concern with preventing its
insurance market reforms from “destabiliz[ing] the
individual
market.”
42
U.S.C.
§ 300gg–
18(b)(1)(A)(ii); see also id. § 18061(c)(1)(A) (measures
to “help stabilize premiums for coverage in the
individual market in a State” at risk for “adverse
selection”).
Rather than treat the ACA as a
“coherent regulatory scheme,” Brown & Williamson
Tobacco Corp., 529 U.S. at 133, Petitioners conclude
that Congress has paired mandatory market reforms
with contingent subsidies. The result is to subvert
the statutory structure and invite the very
destabilization Congress sought to prevent.
3. Subsidies and Federalism. The disruptions
that withdrawal of subsidies could cause also
undermine Petitioners’ theory that Congress sought
33

 to cajole states to operate Exchanges through “the
incentive of subsidies.” Petitioners’ Br. 14. Their
version of the ACA is a threat, not an incentive. If
states elect not to run their own Exchange, they
would not just lose a new benefit; they could
experience severe repercussions in their preexisting
insurance markets.
These draconian consequences cannot be
squared with the statute’s approach to federalism, as
made apparent by the statutory language itself.
Rather than threatening states with disaster if they
did not follow Congress’s preferred course, Congress
offered them “state flexibility in operation and
enforcement of Exchanges.” 42 U.S.C. § 18041. And
with this “flexibility,” states are free to “elect[]”
whether or not to run their own Exchange. Id.
§ 18041(c)(1).
Petitioners cannot square the
federalism-promoting language of ACA § 1321 with
their interpretation of 26 U.S.C. § 36B as a potent
threat.
4. Subsidies and the Economics of “Shared
Responsibility.” Finally, the structural logic of the
ACA was to spread the costs and the benefits of
achieving universal coverage throughout the health
care system. See NFIB, 132 S. Ct. at 2670 (Scalia,
Kennedy, Thomas & Alito, JJ., dissenting). Thus,
hospitals like HCA were intended to lose significant
federal reimbursements, but to have those cuts offset
by new revenues resulting from expanded insurance.
Supra pp. 23–27. Petitioners’ interpretation would
uncouple costs from benefits, undermining the
“shared responsibility” framework of the statute in a
manner Congress could not have intended.
34

 C. Petitioners’
Interpretation
Is
Inconsistent With The Statutory Purpose.
Petitioners’ interpretation cannot be accepted
for the additional reason that it would “undermine in
a substantial way the [statute’s] purpose.” Maracich,
133 S. Ct. at 2200. There is no need to resort to
legislative history to divine the fundamental
legislative purpose of the ACA, because the statute
makes it plain: “achiev[ing] near-universal coverage.”
42 U.S.C. § 18091(2)(D). At the lowest income levels,
Congress relied on expanded Medicaid to achieve
this purpose, and at higher levels Congress relied on
employers.
But in order to ensure “affordable
coverage choices for all Americans,” ACA tit. I,
subtit. E (emphasis added), subsidized Exchange
coverage for everyone with an income between
100%–400% of the federal poverty level was
necessary.
Petitioners’ interpretation would, in
many states, close this door to coverage for millions.
Petitioners’ interpretation would likewise
thwart many of the congressional objectives
underlying the overarching goal of universal
coverage. Congress expressed concern with the
billions of dollars in uncompensated care being
consumed, and the “free riding” that caused insured
families’ premiums to be $1,000 higher per month.
Supra pp. 8–9. Congress sought to reduce ER usage
and encourage patients to use more efficient and
appropriate forms of care. Supra pp. 12–14. And it
sought to correct the imbalance in women’s ability to
obtain access to needed care. Supra at 17–18.
HCA’s data show that the ACA, as
implemented, is already helping to achieve these
35

 purposes. But if subsidies are eliminated from the
federally-facilitated Exchanges, the aims of the ACA
would be undermined. The vast majority of those
who would be unable to afford coverage on an
Exchange without subsidies – or any alternative
form of coverage – would likely become uninsured.
Nine out of 10 of them would likely again pay
nothing for services provided at health care facilities.
The costs of their care would again be paid by
employers and insured families. The reductions in
ER usage would likely be reversed. And women, who
make up a disproportionate percentage of HCA’s
Exchange
patients,
would
again
face
disproportionate
disadvantages
in
accessing
preventive care, diagnostic care, and needed
treatment. Congress could not plausibly have meant
to sacrifice its fundamental goal of universal
coverage, and many related objectives, just to punish
states that use their “flexibility” to “elect” not to
administer their own Exchange.
D. Petitioners’ Interpretation Yields Absurd
Consequences.
A careful reading of the entire statutory text
leads to the conclusion that Congress used the
phrase “Exchange established by the state” as a
statutory term of art encompassing the federallyfacilitated Exchange within a state. Consideration of
the statutory structure and the ACA’s basic purposes
supports that interpretation.
But even if the text could only be read as
Petitioners contend, this would be one of the rare
cases in which a statute must be read to avoid an
“absurd” result. Green v. Bock Laundry Mach. Co.,
36

 490 U.S. 504, 527 (1989) (Scalia, J., concurring in the
judgment); see also Public Citizen v. U.S. Dep’t. of
Justice, 491 U.S. 440, 471 (1989) (Kennedy, J.,
concurring in the judgment) (Court may look past
clear text “where it is quite impossible that Congress
could have intended the result”). At a minimum, this
case triggers “the precept that ‘interpretations of a
statute which would produce absurd results are to be
avoided if alternative interpretations consistent with
the legislative purpose are available.’” Lawson v.
FMR LLC, 134 S. Ct. 1158, 1183 (2014) (Sotomayor,
J., joined by Kennedy & Alito, JJ., dissenting)
(quoting Griffin v. Oceanic Contractors, Inc., 458
U.S. 564, 575 (1982)).
Without subsidies, the goal of near-universal
coverage would be impossible. Not only would many
newly uninsured Americans be stripped of coverage,
but the likely effect of the ACA as interpreted by
Petitioners would be an overall increase in the
uninsured in federally-facilitated Exchange states
relative to a pre-ACA baseline. Supra pp. 18–23. It
cannot be that Congress’s “comprehensive national
plan to provide universal health insurance coverage,”
NFIB, 132 S. Ct. at 2606 (op. of Roberts, C.J., joined
by Breyer & Kagan, JJ.), was actually a plan to take
coverage away and destabilize insurance markets.
Indeed, “[i]t defies logic to think that Congress would
disregard
[these]
real-world
consequences.”
Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422, 1430
(2014).
***

37

 The fundamental question in this case is
whether the ACA is in fact “a comprehensive
national plan to provide universal health insurance
coverage,” NFIB, 132 S. Ct. at 2606 (2012) (op. of
Roberts, C.J., joined by Breyer & Kagan, JJ.), or
instead contains a trap door through which millions
of Americans may fall.
Every tool of statutory interpretation indicates
that Congress intended the former. With subsidies
available on the federally-facilitated Exchanges, the
newly insured are able to take personal
responsibility for their care, emergency room usage
is dropping, women are gaining access to needed
care, and the costs and benefits of expanding
coverage are being shared throughout the health
care system. Without the subsidies, an otherwise
coherent regulatory scheme may come apart at the
seams: the newly insured could lose coverage, the
positive trends in the delivery of care noted above
could be reversed, the economic logic of the ACA
could be disrupted, the federally-facilitated
Exchanges could slide into dysfunction, and even the
previously insured could lack access to a viable
alternative market.
This Court should follow the interpretation
that makes sense of the ACA’s interconnected
provisions. That interpretation is that subsidies are
available to every “applicable taxpayer,” without
regard to whether his or her state has elected to run
its own Exchange.

38

 CONCLUSION
For the foregoing reasons, as well as the
reasons set forth in Respondents’ brief, the decision
of the court of appeals should be affirmed.
Respectfully submitted,
Robert A. Waterman
HCA INC.
One Park Plaza
Nashville, TN 37203
(615) 344-9551

Robert A. Long
Christian J. Pistilli
David M. Zionts
Kathryn Cahoy
Paige M. Jennings
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, N.W.
Washington, DC 20001-4956
rlong@cov.com
(202) 662-6000

January 2015

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