IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

Pensacola Division 

STATE OF FLORIDA, by and through 

Bill McCollum, et al., 

 Plaintiffs, 

v. Case No.: 3:10-cv-91-RV/EMT 

UNITED STATES DEPARTMENT OF 

HEALTH AND HUMAN SERVICES, 

et al., 

 Defendants. 

___________________________________________/ 

PLAINTIFFS’ RESPONSE TO

DEFENDANTS’ STATEMENT OF FACTS

AS TO WHICH THERE IS NO GENUINE ISSUE

 Pursuant to Rule 56, Federal Rules of Civil Procedure, and Rule 56.1(A), Rules of the 

United States District Court for the Northern District of Florida, Plaintiffs hereby submit this 

Response to Defendants’ Statement of Facts As to Which There Is No Genuine Issue [No. 82-2] 

(“DSOMF”). As shown below and in Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion for Summary Judgment, Defendants’ asserted facts are either legally or factually 

irrelevant to the issues presented, or are demonstrably lacking in support or credibility, and thus 

fail to give rise to any genuine issue of material fact. Consequently, Defendants’ asserted facts 

cannot prevent entry of summary judgment in Plaintiffs’ favor on their facial constitutional 

challenge to the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 

(2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 

111-152, 124 Stat. 1029 (2010) (“ACA”). True and correct copies of all referenced exhibits (and 

attachments thereto) are contained in Plaintiffs’ accompanying Supplemental Appendix. 

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Preliminary Statement: 

Plaintiffs begin by taking the opportunity to respond to preliminary statements included 

in DSOMF. 

Defendants cite Gonzales v. Raich, 545 U.S. 1, 16-17 (2005) out of context in suggesting 

that this Court’s only task is to determine whether Congress had a “‘rational basis’ to conclude 

that the class of activities it undertook to regulate, when taken in the aggregate, has a substantial 

effect on interstate commerce.” DSOMF at 1. 

Plaintiffs’ citation of authority to the effect that “legislative facts” are not subject to 

courtroom proof is inapposite. This case does not concern a challenge to legislative facts. The 

economic consequences of some individuals not having healthcare insurance are immaterial to 

Plaintiffs’ core argument in support of Count One, which is that whatever the alleged economic 

consequences of a particular individual’s failure to have healthcare coverage, regulation of this 

lack of insurance is beyond the constitutional limits of the Commerce Clause. 

As explained by the Supreme Court, the presence of economic activity is a key limit on 

Congress’s power to regulate under the Commerce Clause. See United States v. Lopez, 514 U.S. 

549, 558 (1995) (demarcating “three broad categories of activity that Congress may regulate 

under its Commerce Clause power”). Whether being uninsured is subject to the commerce 

power as is a legal, and not a factual, question going directly to Congress’s authority to enact the 

Individual Mandate. Congress may not evade the constitutional limits on its power, or escape 

judicial review, by dressing its legal conclusions in the garb of legislative “facts.” E.g., ACA § 

1501(a)(2)(A) (finding that the Individual Mandate regulates “activity that is commercial and 

economic in nature: economic and financial decisions about ... health insurance”). Rather, the 

limits of Congress’s authority under the Constitution are a question of law upon which the 

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judiciary, not Congress, must have the last word. See generally Cooper v. Aaron, 358 U.S. 1, 18, 

(1958) (noting the “permanent and indispensable feature of our constitutional system” that “the 

federal judiciary is supreme in the exposition of the law of the Constitution”). See also 

Lamprecht v. FCC, 958 F.2d 382, 392 n.2 (D.C. Cir. 1992) (Thomas, J.) (“If a legislature could 

make a statute constitutional simply by “finding” that black is white or freedom, slavery, judicial 

review would be an elaborate farce.”). 

Defendants also are incorrect in stating that the ACA’s Medicaid Amendments’ costs to 

the states are immaterial to the resolution of Count Four at summary judgment. Plaintiff States’ 

sovereignty will be unconstitutionally impaired if they are forced to comply with the ACA’s 

Medicaid provisions, quite apart from whether or not this compulsion is sufficient to meet the 

standards of South Dakota v. Dole, 483 U.S. 203 (1987). See PMSJ [Doc 80-1] at 39 

(“[R]emaining in the ACA Medicaid program will encumber the Plaintiff States with such 

massive new expenses and responsibilities that their viability as sovereigns will be severely 

threatened”) & 42 (“Having to comply with these requirements will fundamentally undermine 

Plaintiff States’ abilities to function as sovereigns.”). The ACA’s Medicaid Amendments’ costs 

to the States are therefore material to the Court’s resolution of Count Four at summary judgment. 

Responses To Defendants’ Asserted Facts: 

For the convenience of the Court, Plaintiffs have followed the paragraph numbering and 

organization of Defendants’ submission. Plaintiffs respond individually to Defendants’ asserted 

material undisputed facts as follows: 

 

I. Defendants’ Asserted Facts Pertaining To The Minimum Coverage Provision 

1. Congress gave detailed consideration to the structure of the reforms of the interstate 

health insurance market that it enacted in the ACA, as shown by the more than fifty hearings that 

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it held on the subject in the 110th and 111th Congresses alone. See H.R. Rep. No. 111-443, pt. II, 

at 954-68 (2010) (Ex. 1) 

Response: This statement is disputed. Plaintiffs do not agree with Defendants’ 

characterization of the genesis of the ACA. As noted by this Court, Congress’s consideration 

of the ACA was widely criticized for being “drafted behind closed doors and pushed through 

Congress by parliamentary tricks, late night weekend votes, and last minute deals among 

members of Congress who did not read or otherwise know what was in it.” See Mem.Op. 

[Doc. 79] at 2. H.R. Rep. No. 111-443, pt. II speaks for itself and Plaintiffs decline to 

characterize its contents. 

2. In 2009, the United States spent more than an estimated 17 percent of its gross domestic 

product on health care. ACA §§ 1501(a)(2)(B), 10106(a). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph, except to admit that it is contained in the cited ACA sections. 

However, the statement is irrelevant and immaterial to the constitutionality of the Individual 

Mandate. 

3. Notwithstanding these expenditures, 45 million people — an estimated 15 percent of the 

population — went without health insurance for some portion of 2009. Absent the new statute, 

that number would have climbed to 54 million by 2019. Cong. Budget Office (“CBO”), Key 

Issues in Analyzing Major Health Insurance Proposals 11 (Dec. 2008) [hereinafter Key Issues] 

(Ex. 2); see also CBO, The Long-Term Budget Outlook 21-22 (June 2009) (Ex. 3). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, however they are irrelevant and immaterial to the constitutionality of 

the Individual Mandate. Cong. Budget Office, Key Issues in Analyzing Major Health 

Insurance Proposals, (Dec. 2008) (“Key Issues”) and CBO, The Long Term Budget Outlook

(June 2009) speak for themselves and Plaintiffs decline to characterize their contents. 

4. The pervasive lack of insurance occurred because “[t]he market for health insurance . . . 

is not a well-functioning market.” Council of Economic Advisers (“CEA”), The Economic Case 

for Health Care Reform 16 (June 2009) (submitted into the record for The Economic Case for 

Health Reform: Hearing Before the H. Comm. on the Budget, 111th Cong. 5 (2009)) [hereinafter 

The Economic Case] (Ex. 4). 

Response: It is undisputed that the President’s Council of Economic Advisers believes that 

the market for health insurance “is not a well-functioning market.” However, as “Congress 

has recognized: ‘By most measures, we have the best medical care system in the world.’” 

Mem.Op. at 3. Plaintiffs dispute the implication that there is a causal connection between the 

lack of insurance and any market failures identified by CEA. Plaintiffs also dispute 

Defendants’ characterization that there is a “pervasive lack of insurance” because of the 

“market failures” identified by CEA. CEA refers simply to “a large number of individuals 

and families without health insurance.” In addition, the averments in this paragraph are 

irrelevant and immaterial to the constitutionality of the Individual Mandate. Council of 

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Economic Advisers (“CEA”), The Economic Case for Health Care Reform (June 2009) 

(“The Economic Case”) and the record of The Economic Case for Health Reform: Hearing 

Before the H. Comm. on the Budget, 111th Cong. (2009). 

 

5. With rare exceptions, individuals cannot make a personal choice to eliminate the current 

or potential future consumption of health care services. Nor can individuals reliably predict 

whether they or their families will need health care. They may go without health care for some 

time, then unexpectedly suffer a debilitating injury or disease and suddenly incur high or even 

catastrophic health care costs. See J.P. Ruger, The Moral Foundations of Health Insurance, 100 

Q.J. Med. 53, 54-55 (2007) (Ex. 5). In this market, everyone is a participant because everyone, in 

one way or another, is faced with managing the financial risks associated with unpredictable 

future health care costs. Katherine Baicker & Amitabh Chandra, Myths and Misconceptions 

About U.S. Health Insurance, 27 Health Affairs w533, w534 (2008) (Ex. 6); Jonathan Gruber, 

Public Finance and Public Policy 442-28 (3d ed. 2009) (Ex. 7). 

Response: The averments in this paragraph constitute Defendants’ characterizations of the 

undisputed facts that a majority of human beings will, at some point in their lives, seek 

and/or receive medical attention, and that life is uncertain. Plaintiffs dispute Defendants’ 

claims that everyone is a participant in the market for medical services or health care because 

they must “manage[] the financial risks associated with unpredictable future health care 

costs.” This constitutes Plaintiffs characterization of the above-referenced statements and 

also constitutes a legal conclusion for purposes of this case. Finally, the authorities cited by 

Defendants are without foundation and do not support their contention, but merely offer 

explanations of the insurance industry in general and healthcare insurance industry in 

particular. 

6. When a person does fall ill, he is effectively assured of at least a basic level of emergency 

care, without regard to his insured status. See, e.g., Fla. Stat. § 395.1041 (2004) (“The 

Legislature finds and declares it to be of vital importance that emergency services and care be 

provided by hospitals and physicians to every person in need of such care”); Emergency Medical 

Treatment and Labor Act, 42 U.S.C. § 1395dd (hospitals that participate in Medicare and offer 

emergency services are required to stabilize, or provide an appropriate transfer for, any patient 

who arrives, regardless of whether he has insurance or otherwise can pay for that care); CBO, 

Key Issues, at 13. In addition, most hospitals are nonprofit organizations that “have some 

obligation to provide care for free or for a minimal charge to members of their community who 

could not afford it otherwise.” Id. For-profit hospitals “also provide such charity or reduced-price 

care.” Id.

Response: It is undisputed that there are various federal and state requirements that covered 

hospitals and other healthcare providers treat individuals in need of certain, minimal 

emergency services. Plaintiffs, however, dispute the implication that this amounts to a 

guarantee of free health are services for anyone who “fall[s] ill.” In addition, the averments 

in this paragraph are irrelevant and immaterial to the constitutionality of the Individual 

Mandate. Fla. Stat. § 395.1041 (2004), 42 U.S.C. § 1395dd, and the CBO’s Key Issues 

report all speak for themselves. 

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7. Because of the availability of this backstop of free care, many persons have an incentive 

not to obtain insurance, knowing that they will not bear the full cost of their decision to attempt 

to pay for their health care needs out-of-pocket. The Economic Case, at 17; see also Bradley 

Herring, The Effect of the Availability of Charity Care to the Uninsured on the Demand for 

Private Health Insurance, 24 J. of Health Econ. 225, 226 (2005) (Ex. 10). 

Response: The averments in this paragraph are irrelevant and immaterial to the 

constitutionality of the Individual Mandate and are based on authorities that are without 

foundation. It is undisputed that the availability of certain, minimal emergency care services 

could serve as an incentive for some individuals to forgo healthcare insurance coverage. 

However, Plaintiffs dispute Defendants’ implication that this is the only reason, or even a 

particularly important reason, for being uninsured. As Defendants’ own authority explains in 

detail, there are several “factors” that lead to people not having healthcare insurance 

coverage. The most important of these, according to the President’s CEA, is “adverse 

selection” by insurance companies: 

An insurance company will not price individual health insurance at the average cost of 

covering the uninsured. If it did, the individuals who purchased the policy would be 

disproportionately those who knew they were likely to have high health care costs, and so 

the company would lose money. To address adverse selection risks, most insurers use 

medical underwriting and incorporate a risk premium into the actual price of coverage. 

As a result, the price of health insurance that a typical person would face in the individual 

market greatly exceeds the average cost of covering him or her. Moreover, a significant 

proportion of individuals may be uninsured because they are denied coverage as a result 

of medical underwriting. 

See Economic Case at 17. 

In addition, and significantly, CEA also noted that “[i]mperfections in credit markets reduce 

the ability of households, especially low-income households, to obtain goods and services 

with immediate costs but long-term benefits. Health insurance is a classic example of such a 

good. Similarly, the uninsured obtain some free medical care through emergency rooms, free 

clinics, and hospitals, which reduces their incentives to obtain health insurance.” Id. Finally, 

CEA also noted that “positive externalities” (benefits of healthcare insurance coverage that 

accrue not to the policyholder but to society in general) “is another force that works in the 

direction of causing too few individuals and households to have health insurance.” Id.

8. Most individuals make economic decisions whether to attempt to pay for their anticipated 

health care needs through insurance, or to attempt (often unsuccessfully) to pay out-of-pocket. In 

making these decisions, individuals weigh the cost of insurance against the cost of their potential 

out-of-pocket expenses. See Mark V. Pauly, Risks and Benefits in Health Care: The View from 

Economics, 26 Health Affairs 653, 657-58 (2007) (Ex. 11). Plaintiff Brown weighs whether 

purchasing insurance for herself will be a “worthwhile cost of doing business.” Am. Compl. ¶ 

62. 

Response: Plaintiffs dispute the statements in this paragraph that “most individuals make 

economic decisions whether to attempt to pay for their anticipated health care needs through 

insurance, or to attempt (often unsuccessfully) to pay out-of-pocket.” This constitutes 

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Defendants’ self-serving characterization of some individuals having, and others lacking, 

healthcare insurance coverage, and also is a legal conclusion rather than a statement of fact. 

Moreover, Defendants’ cited authority does not support such a generalized claim, and is 

without foundation. This paper is not based upon empirical data, but constitutes 

theoretical discussion of “the economic views of risk” and how that may be applied to 

individual decision-making about health care. In particular, the author discusses application 

of the “expected utility” (“EU”) model of decision-making in this area, noting that it “is at 

best a useful caricature describing general tendencies,” and that “{i]ts value is really 

comparative. Does it do a better job of explaining or evaluating decisions in general than 

some other model, including the null hypothesis that people make choices at random?” 654-

55. 

It is undisputed that the Individual Mandate will compel Plaintiff Mary Brown, like other 

NFIB members, “to divert resources from their business endeavors, or otherwise to reorder 

their economic circumstances, in order to obtain qualifying healthcare coverage, regardless 

of their own conclusions on whether or not obtaining and maintaining such coverage for 

themselves and their dependents is a worthwhile cost of doing business.” Am. Compl. ¶ 62. 

9. Individuals regularly revisit these economic decisions whether to purchase insurance or 

attempt to finance their health care needs through another manner. Movement in and out of 

insured status is “very fluid.” Of those who are uninsured at some point in a given year, about 

63 percent have coverage at some other point during the same year. CBO, How Many People 

Lack Health Insurance and For How Long? 4, 9 (May 2003) (Ex. 12); see also CBO, Key Issues, 

at 11. 

Response: Plaintiffs dispute Defendants’ characterization of the presence or absence of 

healthcare insurance as an economic decision and any implication that having or not having 

healthcare insurance makes individuals constant participants in the healthcare services or 

healthcare insurance market. Defendants’ assertions as to what “individuals” may 

“regularly” do are speculative, and merely constitute Defendants’ characterization of the 

phenomenon noted by CBO that, in the 1990’s, many who did not have healthcare insurance 

at some point during the year also had such insurance at some other point during the year. 

10. The vast majority of the population — even of the uninsured population — has 

participated in the health care market by receiving medical services. See June E. O’Neill & Dave 

M. O’Neill, Who Are the Uninsured?: An Analysis of America’s Uninsured Population, Their 

Characteristics, and Their Health 20-22 (2009) (Ex. 8) (94 percent of even long-term uninsured 

have received some level of medical care); see also National Center for Health Statistics, Health, 

United States, 2009, at 318 (2010) (for 2007, 62.6 percent of uninsured at a given point in time 

had at least one visit to a doctor or emergency room within the year) (Ex. 9). 

Response: It is undisputed that most individuals will, as some point in their lives, receive 

medical services. Plaintiffs dispute any inference that this makes anyone who has received 

(or will receive) healthcare services a constant or continuing participant in the market for 

health care services or for healthcare insurance. 

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11. About 20 percent of the population accounts for 80 percent of health spending, with the 

sickest one-percent accounting for nearly one-quarter of health expenditures. H.R. Rep. No. 111-

443, pt. II, at 990. 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph, except to admit that it is contained in the cited report. However, the 

statement is irrelevant and immaterial to the constitutionality of the Individual Mandate. 

H.R. Rep. No. 111-443, pt. II speaks for itself. 

12. Insurers have sought to exclude those they deem most likely to incur expenses. 47 

Million and Counting: Why the Health Care Marketplace Is Broken: Hearing Before the S. 

Comm. on Finance, 110th Cong. 51-52 (2008) (statement of Mark Hall, Professor of Law and 

Public Health, Wake Forest Univ.) (Ex. 13). That is, they adopt practices designed — albeit 

imperfectly — to “cherry-pick healthy people and to weed out those who are not as healthy.” 

H.R. Rep. No. 111-443, pt. II, at 990 (internal quotation omitted). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to admit that they are contained in the citied authorities, the 

first of which is without foundation. However, the averments are irrelevant and immaterial 

to the constitutionality of the Individual Mandate. 

13. These practices include medical underwriting, or the individualized review of an 

insurance applicant’s health status. This practice is costly, resulting in administrative fees that 

are responsible for 26 to 30 percent of the cost of premiums in the individual and small group 

markets. ACA §§ 1501(a)(2)(J), 10106(a). Medical underwriting yields substantially higher riskadjusted premiums or outright denial of insurance coverage for an estimated one-fifth of 

applicants for individual coverage, a portion of the population that is most in need of coverage. 

CBO, Key Issues, at 81. 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to admit that they are contained in the citied authorities. 

However, the averments are irrelevant and immaterial to the constitutionality of the 

Individual Mandate. 

14. Before the ACA, health insurance company practices also included: denial of coverage 

for those with pre-existing conditions, even minor ones; exclusion of pre-existing conditions 

from coverage; higher, and often unaffordable, premiums based on the insured’s medical history; 

and rescission of policies after claims are made. Id. As a result, “many who need coverage 

cannot obtain it, and many more who have some type of insurance may not have adequate 

coverage to meet their health care needs.” Health Reform in the 21st Century: Insurance Market 

Reforms: Hearing Before the H. Comm. on Ways and Means, 111th Cong. 53 (2009) (Linda 

Blumberg, Senior Fellow, Urban Inst.) (Ex. 14). Insurers often revoke coverage even for 

relatively minor pre-existing conditions. Consumer Choices and Transparency in the Health 

Insurance Industry: Hearing Before the S. Comm. on Commerce, Science & Transp., 111th 

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Cong. 29-30 (2009) (Karen Pollitz, Research Professor, Georgetown Univ. Health Policy Inst.) 

(Ex. 15). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to admit that they are contained in the citied authorities, 

which are without foundation. However, the averments are irrelevant and immaterial to the 

constitutionality of the Individual Mandate. 

15. More than 57 million Americans have some pre-existing medical condition, and thus, 

absent reform, were at risk for the denial or rescission of insurance coverage. Families USA 

Foundation, Health Reform: Help for Americans with Pre-Existing Conditions 2 (2010) (Ex. 16). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to admit that they are contained in the citied authority, which 

is without foundation. However, the averments are irrelevant and immaterial to the 

constitutionality of the Individual Mandate. 

16. Insurers operate in interstate commerce and can gauge their participation in state markets 

based on the nature of regulation in each state. See Sara Rosenbaum, Can States Pick Up the 

Health Reform Torch?, 362 New Engl. J. Med. e29, at 3 (2010) (Ex. 17). 

Response: The statement that “[i]nsurers operate in interstate commerce” is a legal 

conclusion rather than a statement of fact. It is undisputed that insurance regulations often 

differ from State to State. However, these statements are irrelevant and immaterial to the 

constitutionality of the Individual Mandate. 

17. Congress found that the widespread inability of Americans to obtain affordable coverage, 

or to obtain coverage at all, has significant additional economic effects. 

Response: The ACA speaks for itself. Plaintiffs dispute that Congress’s findings bind the 

Court or render the Individual Mandate constitutional. 

18. 62 percent of all personal bankruptcies are caused in part by medical expenses. ACA §§ 

1501(a)(2)(G), 10106(a). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph, except to admit that it is contained in the citied ACA provisions. 

Plaintiffs dispute that Congress’s findings bind the Court or render the Individual Mandate 

constitutional. Moreover, the averment is irrelevant and immaterial to the constitutionality of 

the Individual Mandate. 

19. The uncertainty that many Americans experience as to whether they can obtain coverage 

constrains the labor market. The phenomenon of “job lock,” in which employees avoid changing 

employment because they fear losing coverage, is widespread. Employees are 25 percent less 

likely to change jobs if they are at risk of losing health insurance coverage in doing so. The 

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Economic Case, at 36-37; see also Gruber, Public Finance and Public Policy 431. 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to admit that they are contained in the citied authorities, the 

second of which is without foundation. However, the averments are irrelevant and 

immaterial to the constitutionality of the Individual Mandate. 

20. Insurance industry reform to guarantee coverage would alleviate “job lock” and increase 

wages, in the aggregate, by more than $10 billion annually, or 0.2 percent of the gross domestic 

product. The Economic Case 36-37. 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to admit that they are contained in the citied authority, which 

is without foundation. However, the averments are irrelevant and immaterial to the 

constitutionality of the Individual Mandate. 

21. One result of industry practices that deny, impede, or raise the cost of insurance coverage 

is that many millions of people are uninsured. In the aggregate, the uninsured shift much of the 

cost of their care onto other persons. The uninsured continue to receive health care services but 

pay only a portion of the cost. Jack Hadley et al., Covering the Uninsured in 2008: Current 

Costs, Sources of Payment, and Incremental Costs 2008, 27 Health Affairs w399, w411 (2008) 

(Ex. 20); CBO, Key Issues, at 114; see also CBO, Nonprofit Hospitals and the Provision of 

Community Benefits 1-2 (2006) (Ex. 21). 

Response: The statements in this paragraph are irrelevant and immaterial to the 

constitutionality of the Individual Mandate. However, it is nevertheless disputed that, as 

stated in sentence 3 of paragraph 21, “the uninsured continue to receive health care services

but pay only a portion of the cost.” Defendants have not established that all, or even a 

significant portion, of the uninsured receive services for which they only partially pay. 

Plaintiffs also dispute Defendants’ suggestion that uninsured individuals are continuously

receiving health care services such that they are always engaged in “economic activity” 

rendering the healthcare services or healthcare insurance market subject to regulation by 

Congress. In addition, Defendants’ own authority, which is without sufficient foundation, 

makes clear that 75 percent of the unpaid costs of treating the uninsured are covered by 

government programs designed to meet these costs and states that “cost shifting to private 

insurance finances a relatively small amount of uncompensated care. Private insurance 

premiums are at most 1.7 percent higher because of the shifting of costs of the uninsured to 

private insurers in the form of higher charges.” Jack Hadley, et al., at w411. 

22. This phenomenon is not limited to the uninsured with the lowest incomes. On average, 

uninsured persons with incomes of more than 300% of the federal poverty level pay for less than 

one half of the cost of the medical care that they receive. Herring, 24 J. of Health Econ. at 229-

30. 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to admit that they are contained in the citied authority, which 

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is without foundation. However, the averments are irrelevant and immaterial to the 

constitutionality of the Individual Mandate. 

23. The costs of “uncompensated care” for the uninsured fall on other participants in the 

health care market. In the aggregate, that cost-shifting amounted to $43 billion in 2008, about 5 

percent of overall hospital revenues. CBO, Key Issues, at 114. Indeed, this figure may 

underestimate the cost-shifting. One study estimated that the uninsured in 2008 collectively 

received $86 billion in care during the time they lacked coverage, including $56 billion in 

services for which they did not pay, either in the form of bad debts or in the form of reduced-cost 

or free charitable care. Jack Hadley et al., Covering the Uninsured in 2008: Current Costs, 

Sources of Payment, and Incremental Costs 2008, 27 Health Affairs w399, w411 (2008) (Ex. 

20); CBO, Key Issues, at 114; see also CBO, Nonprofit Hospitals and the Provision of 

Community Benefits 1-2 (2006) (Ex. 21). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to admit that they are contained in the citied authorities, the 

second of which is without foundation. However, the averments are irrelevant and 

immaterial to the constitutionality of the Individual Mandate. 

24. These costs are in part paid by public funds. For example, through Disproportionate 

Share Hospital (“DSH”) payments, the federal government paid for tens of billions of dollars in 

uncompensated care for the uninsured in 2008 alone. Congress determined that preventing or 

reducing cost-shifting would lower these public subsidies. H.R. Rep. No. 111-443, pt. II, at 983; 

see also The Economic Case, at 8. 

Response: It is undisputed that some costs of medical care for uninsured individuals are met 

through State and or federal programs designed to pay such costs. Plaintiffs dispute that 

Congress’s determinations in this respect bind the Court. Moreover, the statements in this 

paragraph are irrelevant and immaterial to the constitutionality of the Individual Mandate. 

25. Other costs fall in the first instance on health care providers, who in turn “pass on the cost 

to private insurers, which pass on the cost to families.” ACA § 1501(a)(2)(F), 10106(a). This 

cost-shifting effectively creates a “hidden tax” reflected in fees charged by health care providers 

and premiums charged by insurers. CEA, Economic Report of the President 187 (Feb. 2010) (Ex. 

18); see also H.R. Rep. No. 111-443, pt. II, at 985 (2010); S. Rep. No. 111-89, at 2 (2009) (Ex. 

19). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to admit that they are contained in the citied authorities. 

Plaintiffs dispute the characterization of the “cost-shifting” claimed as a “hidden tax.” 

However, the averments are irrelevant and immaterial to the constitutionality of the 

Individual Mandate. 

26. When premiums increase as a result of cost-shifting by the uninsured, more people who 

see themselves as healthy make the economic calculation not to buy, or to drop, coverage. For 

many, this economic calculation leads them to wait to obtain coverage until they grow older, 

when they anticipate greater health care needs. See CBO, Key Issues, at 12 (percentage of 

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uninsured older adults in 2007 was roughly half the percentage of uninsured younger adults); see 

also M.E. Martinez & R.A. Cohen, National Center for Health Statistics, Health Insurance 

Coverage: Early Release of Estimates From the National Health Interview Survey, January-June 

2009, at 2 (Dec. 2009) (Ex. 22); U.S. Census Bureau, Census Population Survey, Annual Social 

and Economic Supplement (2009) (Table H101, data on coverage status by age) (Ex. 23). 

Response: Plaintiffs dispute the averments in this paragraph as Defendants’ characterizations 

of phenomena described in the cited authorities. The averments are, in any case, irrelevant 

and immaterial to the constitutionality of the Individual Mandate. 

27. This self-selection further narrows the risk pool, which, in turn, further increases the price 

of coverage for the insured. The result is a self-reinforcing “premium spiral.” Health Reform in 

the 21st Century: Insurance Market Reforms 118-19 (2009) (American Academy of Actuaries); 

see also H.R. Rep. No. 111-443, pt. II, at 985. 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to admit that they are contained in the citied authorities, the 

first of which is without foundation. However, the averments are irrelevant and immaterial 

to the constitutionality of the Individual Mandate. H.R. Rep. No. 111-443, pt. II speaks for 

itself and does not bind the Court. 

28. This premium spiral particularly hurts small employers, due to their relative lack of 

bargaining power. See H.R. Rep. No. 111-443, pt. II, at 986-88; The Economic Case, at 37-38; 

see also 47 Million and Counting 36 (Raymond Arth, Nat’l Small Business Ass’n) (noting need 

for insurance reform and minimum coverage provision to stem rise of small business premiums). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to admit that high healthcare insurance premium costs can 

hurt small employers. Plaintiffs dispute any implication that the ACA can or will reduce 

those costs. The Court is not bound by the first authority cited and the second lacks a 

sufficient foundation. In any case, the averments in this paragraph are irrelevant and 

immaterial to the constitutionality of the Individual Mandate. 

29. To address the economic effects of these market failures, as well as to protect consumers, 

the ACA comprehensively “regulates activity that is commercial and economic in nature: 

economic and financial decisions about how and when health care is paid for, and when health 

insurance is purchased.” ACA §§ 1501(a)(2)(A), 10106(a). 

Response: The averments contained in this paragraph constitute legal conclusions and 

argument. Plaintiffs dispute Defendants’ characterization of the purpose and effect of the 

ACA. Plaintiffs also dispute that the Individual Mandate “regulates activity that is 

commercial and economic in nature: economic and financial decisions about how and when 

health care is paid for, and when health insurance is purchased.” To the contrary, the 

Individual Mandate regulates inactivity by compelling individuals to obtain healthcare 

insurance when they do not want it. It is further disputed that mere “decisions” are a form of 

“economic activity” subject to Congressional regulation. “Factual” findings in the ACA §§ 

1501(a)(2)(A) and 10106(a) do not bind the Court. 

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30. The minimum coverage provision “is an essential part of this larger regulation of 

economic activity,” and its absence “would undercut Federal regulation of the health insurance 

market.” Id. §§1501(a)(2)(H), 10106(a). 

Response: Plaintiffs admit that the Individual Mandate is so functionally interdependent with 

other key aspects of the ACA, including its Medicaid transformation, as to render it 

unseverable. Plaintiff deny that the absence of the Individual Mandate would prevent 

Congress from regulating the healthcare insurance market. Plaintiffs also dispute that 

“findings” in the ACA §§1501(a)(2)(H), 10106(a) in any way bind the Court or render the 

Individual Mandate constitutional. 

31. By “significantly reducing the number of the uninsured, the requirement, together with 

the other provisions of this Act, will lower health insurance premiums.” Id. §§ 1501(a)(2)(F), 

10106(a). 

Response: The averments in this paragraph are irrelevant and immaterial to the 

constitutionality of the Individual Mandate and are speculative. They are based on 

congressional “findings” that do not bind the Court and which cannot render the Individual 

Mandate constitutional. 

32. Without the minimum coverage provision, the reforms in the Act, such as the ban on 

denying coverage or charging more based on pre-existing conditions, would amplify existing 

incentives for individuals to “wait to purchase health insurance until they needed care,” thereby 

further shifting costs onto third parties. Id. §§ 1501(a)(2)(I), 10106(a). The minimum coverage 

provision “is essential to creating effective health insurance markets in which improved health 

insurance products that are guaranteed issue and do not exclude coverage of pre-existing 

conditions can be sold.” Id.

Response: See response to No. 30, supra. The averments contained in this paragraph 

constitute argument or legal conclusions. Plaintiffs also dispute that “findings” in the ACA 

§§1501(a)(2)(I), 10106(a) in any way bind the Court or render the Individual Mandate 

constitutional. 

33. The new “guaranteed issue” and “community rating” requirements under section 1201 of 

the Act ensure that all Americans can obtain coverage subject to no coverage limits and despite 

the pre-existing conditions they may have at that time. ACA § 1201. Because these new 

insurance regulations would allow individuals to “wait to purchase health insurance until they 

needed care,” id. §§ 1501(a)(2)(I), 10106(a), they would increase the incentives for individuals 

to “make an economic and financial decision to forego health insurance coverage” until their 

health care needs become substantial, id. §§ 1501(a)(2)(A), 10106(a). 

Response: The averments contained in this paragraph constitute argument or legal 

conclusions. Plaintiffs dispute the characterization of an individual’s having or not having 

healthcare insurance as an “economic and financial decision.” Plaintiffs also dispute that 

“findings” in the ACA §§1501(a)(2)(A), 10106(a) in any way bind the Court. Moreover, the 

averments regarding the purpose and effect of section 1201 of the ACA are irrelevant and 

immaterial to the constitutionality of the Individual Mandate. They are based on 

13 

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congressional “findings” that do not bind the Court and which cannot render the Individual 

Mandate constitutional. 

34. Individuals who would make that decision would take advantage of the ACA’s reforms 

by joining a coverage pool maintained in the interim through premiums paid by other market 

participants. Without a minimum coverage provision, this market timing would increase the costs 

of uncompensated care and the premiums for the insured pool, creating pressures that would 

“inexorably drive [the health insurance] market into extinction.” Health Reform in the 21st 

Century: Insurance Market Reforms 13 (Uwe Reinhardt, Ph.D., Professor of Political Economy, 

Economics, and Public Affairs, Princeton University). 

Response: The averments contained in this paragraph are speculative and constitute 

argument or legal conclusions. Plaintiffs dispute the characterization of an individual’s 

having or not having health insurance as an “economic and financial decision.” The cited 

authority is without foundation and cannot render the Individual Mandate constitutional. 

35. This danger is not merely theoretical, but is borne out in the experience of states that have 

attempted “guaranteed issue” and “community rating” reforms without an accompanying 

minimum coverage provision. After New Jersey enacted a similar reform, its individual health 

insurance market experienced higher premiums and decreased coverage. See Alan C. Monheit et 

al., Community Rating and Sustainable Individual Health Insurance Markets in New Jersey, 23 

Health Affairs 167, 168 (2004) (Ex. 25) (describing potential for “adverse-selection death spiral” 

in a market with guaranteed issue); see also Health Reform in the 21st Century: Insurance 

Market Reforms 101-02 (Dr. Reinhardt). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to the extent that it is undisputed that the cited authorities, 

which are without sufficient foundation, contain the stated claims. However, the averments 

in this paragraph are irrelevant and immaterial to the constitutionality of the Individual 

Mandate. 

36. Likewise after New York enacted a similar reform, “the market for individual health 

insurance in New York has nearly disappeared.” Stephen T. Parente & Tarren Bragdon, 

Healthier Choice: An Examination of Market-Based Reforms for New York’s Uninsured, 

Medical Progress Report, No. 10 at I (Manhattan Institute, Sept. 2009) (Ex. 26). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to the extent that it is undisputed that the cited authority, 

which is without sufficient foundation, contains the quoted statement. However, the 

averments in this paragraph is irrelevant and immaterial to the constitutionality of the 

Individual Mandate. 

37. In contrast, Massachusetts enacted “guaranteed issue” and “community rating” reforms, 

coupled with a minimum coverage provision. Since 2006, the average individual premium in 

Massachusetts has decreased by 40 percent, compared to a 14 percent increase in the national 

average. Jonathan Gruber, Mass. Inst. of Tech., The Senate Bill Lowers Non-Group Premiums: 

Updated for New CBO Estimates, at 1 (Nov. 27, 2009) (Ex. 27); see also Letter from Mitt H. 

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Romney, Governor of Massachusetts, to State Legislature at 1-2 (Apr. 12, 2006) (Ex. 28) 

(signing statement for Massachusetts bill, noting need for insurance coverage requirement to 

prevent cost-shifting by the uninsured). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averments 

made in this paragraph, except to the extent that it is undisputed that Massachusetts enacted 

the provisions claimed and that the statement regarding that program’s effect is contained in 

the cited authority, which is without sufficient foundation. Moreover, the averments are 

irrelevant and immaterial to the constitutionality of the Individual Mandate. 

38. In short, “fundamental insurance-market reform is impossible” if the guaranteed-issue 

and community-rating reforms are not coupled with a minimum coverage provision. Jonathan 

Gruber, Getting the Facts Straight on Health Care Reform, 316 New Eng. J. of Med. 2497, 2498 

(2009) (Ex. 29). This is because “[a] health insurance market could never survive or even form if 

people could buy their insurance on the way to the hospital.” 47 Million and Counting, at 52 

Prof. Hall). Accordingly, Congress found that the minimum coverage provision is “essential” to 

its broader effort to regulate health insurance industry underwriting practices that have prevented 

many from obtaining health insurance. ACA §§ 1501(a)(2)(I), (J), 10106(a). 

Response: The averments contained in this paragraph constitute argument or legal 

conclusions. It is undisputed that the quoted statements are contained in the cited authorities, 

which are without sufficient foundation. Plaintiffs dispute that “fundamental insurance 

market reform is impossible” without the Individual Mandate. Plaintiffs dispute that the 

“findings” in ACA §§ 1501(a)(2)(I), (J), 10106(a) bind the Court or render the Individual 

Mandate constitutional. 

39. The minimum coverage provision also addresses the unnecessary costs created by the 

insurance industry’s practice of medical underwriting. “By significantly increasing health 

insurance coverage and the size of purchasing pools, which will increase economies of scale, the 

requirement, together with the other provisions of this Act, will significantly reduce 

administrative costs and lower health insurance premiums,” and is therefore “essential to 

creating effective health insurance markets that do not require underwriting and eliminate its 

associated administrative costs.” ACA §§ 1501(a)(2)(J), 10106(a). 

Response: The averments contained in this paragraph constitute argument or legal 

conclusions and are speculative. Plaintiffs dispute that the “findings” in ACA §§ 

1501(a)(2)(J), 10106(a) bind the Court or render the Individual Mandate constitutional. 

II. Defendants’ Asserted Facts Pertaining to the ACA’s Amendments to Medicaid 

40. The CBO estimates that, under the ACA, federal Medicaid outlays will increase by $434 

billion, and state outlays by $20 billion, through 2019. Letter from Douglas W. Elmendorf, 

Director, CBO, to the Hon. Nancy Pelosi, Speaker, U.S. House of Representatives tbl.4 (Mar. 20, 

2010) (Ex. 32) [hereinafter CBO Letter to Speaker Pelosi]. 

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Response: The CBO Letter to Speaker Pelosi speaks for itself. It is undisputed that these 

averments are contained in the cited authority. Other federal estimates indicate that the CBO 

significantly underestimate the impact on both State and federal governments. The 

Congressional Research Service (CRS) notes that estimates vary based on assumptions of 

participation. See Pl.App. Ex. 36 (“Variation in Analyses of PPACA’s Fiscal Impact on 

States,” Congressional Research Serv., September 8, 2010) at tbl. 2. CRS cites projections 

prepared by Kaiser Commission researchers that predict up to $43 billion in additional State 

costs and $532 billion in federal costs, assuming a 75 percent uptake rate in the expansion 

population and lower participation by persons currently eligible for Medicaid, but who are 

not enrolled.1

 CRS also notes that the CBO did not provide information on its assumptions 

when publishing the estimates cited here by Defendants. Certainly, projections vary as to 

how many tens of billions of dollars the ACA’s Medicaid program will cost the States in the 

immediate future, but not that the program will cost the States substantially more money 

over-and-above current spiraling projections. 

41. The CBO estimates that, under the ACA, the federal government will shoulder more than 

95 percent of all new Medicaid spending through 2019. See CBO Letter to Speaker Pelosi tbl.4. 

Response: CBO Letter to Speaker Pelosi speaks for itself. This averment is inaccurate 

because, while it may be true that the federal government will shoulder more than 95 percent 

of the costs of caring for the new, mandated expansion populations, this is not true as to “all” 

new Medicaid spending through 2019. For example, many current eligibles who enter the 

program because of the Individual Mandate will be covered at the current, non-ACA federal 

match rate, and this is certainly “new” Medicaid spending from the States’ perspective. See, 

e.g., Pl.App. Ex. 1 (Dudek Decl.) ¶ 18 (calculating a $574 million/year cost due to the new 

enrollment of current eligibles). That is, but for the Individual Mandate, many current 

eligibles would not have enrolled and States do not set their budgets based on the assumption 

that this group will enroll.2

 Similarly, there is a great deal of other “new Medicaid spending” 

 1

 A higher uptake rate is consistent with the Centers for Medicare and Medicaid Services’ 

(CMS) view that “the great majority” of new eligibles – 15 million of the 18 million new 

Medicaid eligibles – “would become covered in the first year, 2014, with the rest covered by 

2016.” Pl.App. Ex. 39 (Richard S. Foster, Estimated Financial Effects of the “Patient Protection 

and Affordable Care Act,” CMS, April 22, 2010) at 6. 

2 See, e.g., Kaiser Family Foundation, Financing New Medicaid Coverage Under Health 

Reform: The Role of the Federal Government & States, at 3 (May 2010), available at 

http://www.kff.org/healthreform/upload/8072.pdf (describing that the “welcome mat effect” is 

expected to “be even more marked [than in prior circumstances] because of the broader reach of 

the legislation and the mandate that people purchase coverage”); see also Pl.App. Ex. 1 (Dudek 

Decl.) ¶ 18 & attach. 1, pp. 5, 6, 12; Pl.App. Ex. 9 (Betlach Decl.) at B.5; Pl.App. Ex. 10 

(Casanova Decl.) ¶ 8 & attach. A, p. 5; Pl.App. Ex. 12 (Phillips Decl.) § B.7; Pl.App. Ex. 13 

(Anderson Decl.) attach. C, p. 2; Pl.App. Ex. 14 (Chaumont Decl.) exhibit A, pp. 3, 4; Pl.App.

Ex. 16 (Willden Decl.) pp. 4-5 & attach (“Health Care Reform Projected Costs”); Pl.App. Ex. 18 

(Bowman Decl.) ¶ 13; Pl.App. Ex. 20 (Millwee Decl.) p. 7; Pl.App. Ex. 24 (Sundwall Decl.), ¶ 

12; Pl.App. Ex. 40 (Dubberly Decl.) p. 2 (expecting significant costs from the “welcome mat” or 

“woodwork” effect). 

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that will not be shared by the federal government at 95 percent. For example, new and 

significant administrative expenses are required by the ACA’s changes to Medicaid 

eligibility processes, which will not be shared at 95 percent.3

 Also, the ACA amended the 

obligation of States not only to pay for medically necessary services, but to provide care and 

services themselves. ACA § 2304. The shift from ensuring payment to providing care and 

services is expected to have a significant negative impact on the States’ cost of providing 

Medicaid services (see PSOMF [Doc. 80-2] ¶ 25), which will not be shared at the 95 percent 

rate, at least for the care of enrollees who are not part of the expansion population. For these 

reasons, the Plaintiff States dispute that “all new Medicaid spending” required by ACA will 

be at a 95 percent federal share rate. 

42. The CBO estimates that, under the ACA, any new federal spending, including on 

Medicaid, will be offset by other revenue-raising and cost-saving provisions. CBO Letter to 

Speaker Pelosi at 2. 

Response: The CBO Letter to Speaker Pelosi speaks for itself. The federal government’s 

potential to save under the ACA via spending offsets is irrelevant and immaterial to the issue 

of the constitutionality of the ACA-transformed Medicaid program. 

43. The CBO estimates that the Medicaid expansion will increase Medicaid enrollment by 

about 16 million by 2019. CBO Letter to Speaker Pelosi tbl.4. 

Response: The CBO Letter to Speaker Pelosi speaks for itself, and is a modest estimate of 

increased Medicaid enrollment. CMS projects a larger number of new Medicaid enrollees 

with “the great majority” (more than 83 percent) being covered in 2014: “Of the additional 

34 million people who are estimated to be insured in 2019 as a result of the [ACA], a little 

more than one-half (18 million) would receive Medicaid coverage due to the expansion of 

eligibility.” Pl.App. Ex. 39 (Richard S. Foster, Estimated Financial Effects of the “Patient 

Protection and Affordable Care Act,” Centers for Medicare & Medicaid Servs., April 22, 

2010) at 6. CRS notes that estimates vary based on assumptions of participation. The CRS 

cited estimates prepared by Kaiser Commission researchers predicting an increase of 22.8 

million enrollees (assuming a 75 percent uptake rate in the expansion population and lower 

participation by current eligibles who are not enrolled). See Pl.App. Ex. 36 (Variation in 

Analyses of PPACA’s Fiscal Impact on States, CRS, Sept. 8, 2010), tbl 2. CRS also notes 

that the CBO did not provide information on its assumptions when publishing the estimates 

 3

 One study estimates the cost to the States of additional Medicaid administrative 

expenses to be upwards of $12 billion through 2020, in addition to $21.5 billion for increased 

benefits for Medicaid Expansion. See Edmund Haislmaier & Brian Blase, Obamacare: Impact 

on States, The Heritage Foundation, July 1, 2010, table 2 

http://www.heritage.org/research/reports/2010/07/obamacare-impact-on-states; see also John 

Holahan & Stan Dorn, Urban Inst., What is the Impact of the [ACA] on the States?, at 2 (June 

2010) (Def. Ex. 35) (as cited by Defendants (see ¶ 57, infra), also expects the States’ 

administrative costs to increase); Pl.App. Ex. 2 (Lange Decl.) ¶¶ 5-10; Pl.App. Ex. 10 (Casanova 

Decl.) attach. A, p. 7; Pl.App. Ex. 16 (Willden Decl.) p. 2 & attach (“Health Care Reform 

Projected Costs”); Pl.Supp.App. Ex. 2 (Church Decl.) ¶ 5. 

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cited by Defendants. As such, there are differences in the projections related to the number 

of new enrollees, but no dispute that the number will be quite large. 

44. Nationally, the Medicaid expansion will reduce by 44.5 percent the number of uninsured 

adults below 133 percent of the federal poverty level. Kaiser Comm’n on Medicaid & the 

Uninsured, Medicaid Coverage & Spending in Health Reform, at 10 tbl.1 (May 2010) (Ex. 34). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph, except to admit that it is contained in the cited Kaiser Commission 

Report. The effect of Medicaid expansion on the number of uninsured adults below 133 

percent of the poverty level is irrelevant and immaterial to the constitutionality of the ACAtransformed Medicaid program. 

45. In Florida, the federal government is expected to pay for 94.2 percent of the Medicaid 

expansion through 2019, while the number of uninsured adults below 133 percent of the federal 

poverty level is expected to decline by 44.4 percent. Kaiser Comm’n on Medicaid & the 

Uninsured, Medicaid Coverage & Spending in Health Reform, at 10 tbl.1 (May 2010). 

Response: Plaintiffs: deny the first averment made in this paragraph; lack knowledge of the 

figure in the second averment; and admit that these averments are contained in the cited 

Kaiser Commission Report. The averments in this paragraph are irrelevant and immaterial to 

the constitutionality of the ACA’s transformation of Medicaid. 

Florida expects to pay about 13 percent of the cost of the ACA’s expanded Medicaid 

program through 2019. See Pl.App. Ex. 1 (Dudek Decl.), attach. 1 at 11 [Doc. 80-3 at 27-28]. 

Moreover, a decrease in uninsureds in that income group will not be caused solely by 

Medicaid’s expansion. Currently 301,960 Floridians are eligible for Medicaid but are not 

enrolled.4

 See discussion of cost of “woodwork” or “welcome mat” effect, supra, ¶ 41. If 

they enroll, and thereby reduce the number of uninsured, they will do so because of the 

ACA’s Individual Mandate, an illness, or other precipitating event; not because of 

Medicaid’s expansion. Also, if they enroll, this group of previously uninsured people will 

not be paid for by the federal government at a 94.2 percent rate. If they enroll, their costs 

will be shared by the federal government at a much lower rate – 57.5 percent. Id. 

46. In South Carolina, the federal government is expected to pay for 95.9 percent of the 

Medicaid expansion through 2019, while the number of uninsured adults below 133 percent of 

the federal poverty level is expected to decrease by 56.4 percent. Kaiser Comm’n on Medicaid & 

the Uninsured, Medicaid Coverage & Spending in Health Reform, at 10 tbl.1 (May 2010). 

 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph, except to admit that it is contained in the cited Kaiser Commission 

 4 See Pl.App. Ex. 1 (Dudek Decl.) attachment 1 (Fla. Agency for Health Care Admin., 

Overview of Federal Affordable Care Act, August 13, 2010). 

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Report. The statements in this paragraph are irrelevant and immaterial to the 

constitutionality of the ACA’s transformation of Medicaid. 

47. Compared to baseline projections in the absence of reform, by the end of 2019, average state 

Medicaid spending under the ACA is expected to increase 1.4 percent. Kaiser Comm’n on 

Medicaid & the Uninsured, Medicaid Coverage & Spending in Health Reform, at 10 tbl.1 (May 

2010). 

Response: See ¶ 40, supra. Plaintiffs dispute this averment as it is materially incomplete 

and constitutes the low estimate made by the Kaiser Commission’s Report. The Kaiser 

Commission Report provides two projections of State spending and this averment references 

only the less-likely lower projection. See Pl.App. Ex. 36 (Variation in Analyses of PPACA’s 

Fiscal Impact on States, Cong. Res. Serv., Sept. 8, 2010) at tbl 2. The Report’s higher 

projection is for State Medicaid spending to increase by almost 3 percent compared to 

baseline projections. Id. (based on a 75 percent uptake) CMS’s view would favor use of the 

higher projection as it expects “the great majority” of new eligibles – 15 million of the 18 

million new Medicaid eligibles (more than 83 percent) – “would become covered in the first 

year, 2014, with the rest covered by 2016.” Pl.App. Ex. 39 (Richard S. Foster, Estimated 

Financial Effects of the “Patient Protection and Affordable Care Act,” CMS, April 22, 2010) 

at 6. 

It is also materially important to analyze this information in view of existing baseline 

projections, which are for state spending to increase by more than 60 percent – see, e.g., 

infra, ¶ 60. The ACA exacerbates the States’ very difficult fiscal position by not only 

increasing their direct costs, but, via unprecedented maintenance of effort provisions (ACA 

§§ 2001(b) & 2101(b)), also limiting the States’ flexibility to control and cut costs. 

48. Many states currently subsidize health care outside of Medicaid, in programs funded entirely 

with state or local dollars, for individuals that will be eligible for Medicaid under the ACA. 

Council of Economic Advisers (“CEA”), The Impact of Health Insurance Reform on State and 

Local Governments, at 4-5 (Sept. 15, 2009) (Ex. 33) [hereinafter “The Impact on States”]. 

Response: The averments in this paragraph are disputed because they conflate State and 

local spending, are based on an authority that uses incorrect information without foundation, 

and are immaterial to the constitutionality of the ACA’s transformation of Medicaid. See

Pl.Supp.App. Ex. 4 (Further Dudek Decl.); Pl.Supp.Ap. Ex. 1 (Further Chaumont Decl.); 

Pl.Supp.App. Ex. 3 (Damler Decl.). 

This CEA Report predated passage of the ACA by either legislative body by many months 

and so cannot be considered a viable source of analysis on the ACA’s final terms. This 

report is seriously flawed. See, e.g., infra, ¶ 56. As such, no post-ACA analysis of State 

spending obligations by the federal government relies upon or even makes reference to the 

CEA’s report. See, e.g., Pl.App. Ex. 39 (Richard S. Foster, Estimated Financial Effects of 

the “Patient Protection and Affordable Care Act,” Centers for Medicare & Medicaid Servs.,

April 22, 2010); Pl.App. Ex. 36 (Variation in Analyses of PPACA’s Fiscal Impact on States, 

Cong. Res. Serv., Sept. 8, 2010) at tbl 2; D. Ex. 32 (CBO Letter to Speaker Pelosi). 

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The averment conflates the spending of state and local governments. See Pl.Supp.App. Ex. 4 

(Further Dudek Decl.); Pl.Supp.App. Ex. 5 (Pridgeon Decl.). Local government spending 

does not bear on the constitutional question presented in this case, insofar as savings by local 

governments arising from the expansion of Medicaid would come at the expense of State 

budgets. Id. Moreover, any current State or local policy to subsidize care will not altogether 

vanish under the ACA as, even by Defendants’ estimation, Medicaid will not zero-out the 

number of uninsured adults below 133 percent of the federal poverty level altogether, but 

merely reduce this population by 44.5 percent. See ¶ 44, supra. 

The CEA Report upon which Defendants rely forecasts that additional savings “may come” 

from the Children’s Health Insurance Program (CHIP). Pl.Supp.App. Ex. 1 (Further 

Chaumont Decl.) ¶ 13. However, under the PPACA no changes to eligibility regarding CHIP 

can be made until 2019, leaving no mechanism in place for States to manage or reduce this 

cost. Id. 

Finally, the CEA Report bases its conclusions on income levels of 133% of the federal 

poverty line, not 133% with a 5% disregard, as included in the ACA. Pl.Supp.App. Ex. 1 

(Further Chaumont Decl.) ¶ 17. As a result the CEA Report does not reflect the current 

eligibility levels contemplated by the ACA. Id. 

49. Pennsylvania subsidizes coverage for adults under 200 percent of FPL through its adultBasic 

program, at a cost of $172 million in 2008. CEA, The Impact on States, at 85. 

Response: See ¶ 48. The statements in this paragraph are irrelevant and immaterial to the 

constitutionality of the ACA’s transformation of Medicaid. 

50. Indiana subsidizes coverage for adults under 200 percent of FPL through its Healthy Indiana 

Plan, at a cost of $154.8 million in 2009, and separately funded millions in emergency care for 

the indigent in fiscal year 2010-11. CEA, The Impact on States, at 34-35. 

Response: See ¶¶ 48-49. This averment is not projected to provide a savings to offset State 

costs under the ACA. See Pl.Supp.App. Ex. 3 (Damler Decl.) ¶ 22. 

51. Many states, like Pennsylvania and Indiana, currently subsidize health care for some 

individuals falling between 133 percent and 400 percent of FPL using only state or local funds. 

CEA, The Impact on States, at 34-35, 85. 

Response: See ¶¶ 48-49. This averment is not projected to provide a savings to offset State 

costs under the ACA. See Pl.Supp.App. Ex. 3 (Damler Decl.) ¶ 22. 

52. Many states, including Idaho, Indiana, and Nebraska, currently fund high-risk insurance 

pools to subsidize coverage for individuals who have been denied private coverage due to preexisting conditions. CEA, The Impact on States, at 29, 35, 67. 

20 

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Response: See ¶¶ 48-49. This averment is not projected to provide a savings to offset state 

costs under the ACA. See PRO Ex. 6 (Ramge Decl.); PRO Ex. 3 (Damler Decl.). 

53. [No entry by Defendants.] 

54. Miami-Dade County, Florida, currently funds uncompensated care at public facilities through 

a 0.5 percent sales tax, which raised $187 million in fiscal year 2007. CEA, The Impact on 13 

States, at 24. 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph, except to admit that it is contained in the cited CEA Report. 

See also ¶¶ 48-49. The CEA Report does not specify whether or how much of these dollars 

(this is a total revenue figure) are spent on people who will be eligible for Medicaid under 

ACA. It makes unstated and unsupported assumptions about the use of local tax dollars and 

apparently does not take into account varying uptake rates. Furthermore, local governments 

will not be in a position to discontinue funding public care facilities because funding still will 

be needed to fund undercompensated care. Medicaid rates currently pay providers less than 

60 percent of what a private insurer would pay for the same service.5

 Although mandated to 

rise under the ACA, reimbursement still will not meet costs, and public hospitals still will 

need a source of revenue to make up the difference. The net impact is incalculable at this 

time, but the increases in Medicaid payments are unlikely to offset the Medicare reductions. 

This will lead to an even greater need for local dollars, not less, to pay for the 

undercompensated care. 

55. It is estimated that, under the ACA, state and local governments will recoup up to $1.6 

billion per year of the “hidden tax” that cost-shifting imposes on health insurance premiums for 

their employees. CEA, The Impact on States, at 6. 

Response: The averment in this paragraph is irrelevant and immaterial to the 

constitutionality of the ACA’s transformation of Medicaid and is disputed. 

See ¶ 48, supra. The basis for the CEA Report’s conclusion cited in the above averment is a 

mystery as it does not fully explain its methodology for reaching this conclusion. While 

some cost-shifting applies to healthcare spending, this figure appears unsupported in the cited 

document. See Pl.Supp.App. Ex. 1 (Further Chaumont Decl.) ¶¶ 11-12. Moreover, this 

conclusion misleadingly groups together the spending of State and local governments. Id.; 

see also Pl.Supp.App. Ex. 4 (Further Dudek Decl.) ¶¶ 8-12; Pl.Supp.App. Ex. 5 (Pridgeon 

Decl.) ¶¶ 14-16. Local government spending does not bear on the constitutional question 

presented in this case insofar as “hidden tax” savings by local governments would not result 

in a savings for State budgets. Id. Local governments employ about three times more 

persons than State governments. See http://www.census.gov/govs/apes/. To the contrary, 

 5 Devon Herrick, Medicaid Expansion will Bankrupt the States, National Center for 

Policy Analysis, Brief Analysis # 729, October 23, 2010, available at 

http://www.ncpa.org/pub/ba729 (last visited Nov. 22, 2010). 

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record evidence in this case – based on analysis completed after the ACA was passed – 

shows that the ACA’s employer mandates will increase the Plaintiff States’ expenses for 

healthcare insurance premiums and not provide a savings. See Pl.App. Ex. 5 (Robleto Decl.) 

¶¶ 9-17; Pl.App. Ex. 6 (Shier Decl.) pp 2-3; Pl.App. Ex. 7 (Ashmore Decl.) ¶¶ 7-9; Pl.App. 

Ex. 8 (Battilana Decl.) ¶¶ 5-9; Pl.App. Ex. 15 (Wells Decl.) ¶¶ 7-10; Pl.App. Ex. 17 (Van 

Camp Decl.) ¶¶ 4-5; Pl.App. Ex. 19 (Zinter Decl.) ¶¶ 11; Pl.App. Ex. 21 (Dial Decl.) pp. 2-7; 

Pl.App. Ex. 22 (Kukla Decl.) p. 3. 

56. Taken together, the savings that will accrue to states from (1) the downsizing or elimination 

of duplicative state programs and (2) the reduction in the “hidden tax” on premiums now borne 

by state governments, are estimated at $11 billion per year after 2013. CEA, The Impact on 

States, at 6-7. Florida alone is projected to save $377 million per year. Id. at 6, 26. 

Response: See ¶¶ 48-55. The Florida-specific $377 million figure is disputed as wholly 

inaccurate. The large programs cited in the CEA report do not use State dollars, but local 

government dollars: 

• More than $256 million that Defendants describe applies to local governments only, not 

to the State of Florida’s budget: $187 million for Miami-Dade County, $82 million for 

Hillsborough County, $660,000 in Duval County, and $5.6 million relating to intercounty reimbursements. See CEA Report at 24, 26. The State of Florida will not see 

savings from these local government programs financed through local taxes, although 

the State may see cost increases as persons switch out of such local programs to 

Medicaid. See Pl.Supp.App. Ex. 4 (Further Dudek Decl.) ¶¶ 8-12; Pl.Supp.App. Ex. 5 

(Pridgeon Decl.) ¶¶ 7-16. 

• The CEA Report’s “Hidden Tax” ($102 million) figure (pp. 6, 24) erroneously assumes 

that the healthcare bill will eliminate uncompensated care altogether. This figure is 

flawed as Defendants admit, for instance, that 55 percent of current uninsured persons 

under the federal poverty line will remain uninsured in Florida (DMSJ 82-1] at 39) and 

21 million nationally. See Payments of Penalties for Being Uninsured Under the 

Patient Protection and Affordable Care Act, CBO, April 22, 2010. The CEA Report 

also bases this estimate on costs borne by both State and local governments, so it is 

inaccurate to attribute the full $102 million savings estimate to the State of Florida 

alone. 

• The CEA Report forecasts State savings of ($117 million) that “may come” from the 

Children’s Health Insurance Program (CEA Report at 24-25). Florida already has taken 

State CHIP-related savings projections into account in its own forecast (see Pl.App. Ex. 

(Dudek Decl.) ¶ 20), wherein Florida estimates the ACA will cost it more than $1 

billion annually by 2018-19. 

57. It is estimated that state and local governments would save approximately $70-80 billion 

over the 2014-2019 period by shifting currently state-funded coverage into federally matched 

Medicaid. John Holahan & Stan Dorn, Urban Institute, What Is the Impact of the [ACA] on the 

States?, at 2 (June 2010) (Ex. 35). 

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Response: The statements in this paragraph are irrelevant and immaterial to the 

constitutionality of the ACA’s transformation of Medicaid and also are disputed. 

The authority cited by Defendants is without foundation. This report is unreliable because: it 

does not explain its data sources and conflates the spending of State and local governments. 

Pl.Supp.App. Ex. 5 (Pridgeon Decl.) ¶¶ 16. Local government spending does not bear on the 

constitutional question presented in this case, insofar as savings by local governments arising 

from the expansion of Medicaid would come at the expense of State budgets. See

Pl.Supp.App. Ex. 4 (Further Dudek Decl.) ¶¶ 8-12; Pl.Supp.App. Ex. 5 (Pridgeon Decl.) ¶¶ 

7-16; Pl.Supp.App. Ex. 1 (Further Chaumont Decl.) ¶¶ 8-12. Moreover, any current State or 

local policy to subsidize care will not altogether vanish under the ACA as, even by 

Defendants’ estimation, Medicaid will reduce the number of uninsured adults below 133 

percent of the federal poverty level by merely 44.5 percent. Moreover, a CRS publication of 

several States’ estimates indicates that six States a total of more than $38 billion in increased 

enrollment costs. See Pl.App. Ex. 36 (Variation in Analyses of PPACA’s Fiscal Impact on 

States, Cong. Res. Serv., Sept. 8, 2010), tbls 1 & 2. This CRS report shows varying impacts, 

including one state which anticipates some savings, but no offsets proportional to a national 

magnitude of $70-$80 billion. Id.

58. It is estimated that states’ savings from no longer having to finance as much of the cost of 

providing uncompensated care to the uninsured may fully offset the increase in Medicaid costs 

resulting from the Medicaid expansion. J. Angeles, Center on Budget and Policy Priorities, Some 

Recent Reports Overstate the Effect on State Budgets of the Medicaid Expansions in the Health 

Reform Law, at 10 (Oct. 21, 2010) (Ex. 36). 

Response: The statements in this paragraph are irrelevant and immaterial to the 

constitutionality of the ACA’s transformation of Medicaid and also disputed. The authority 

cited by Defendants is without foundation. See ¶ 57 (Angeles’ cites to Holahan’s (Urban 

Institute) estimate). 

59. Increases in federal Medicaid funding will generate economic activity at the state level, 

including jobs and state tax revenues. Kaiser Family Foundation, Health Reform Issues: Key 

Issues About State Financing and Medicaid, at 3 (May 2010) (Ex. 37). 

Response: The statements in this paragraph are irrelevant and immaterial to the 

constitutionality of the ACA’s transformation of Medicaid. It is also speculative and 

inconsistent with various paragraphs above in which Defendants insist that federal spending 

will merely shift tens of billions of dollars in state spending to the federal government. Also, 

increases in State Medicaid funding will require significant funding cuts to other programs or 

new revenues. Cuts to other programs may have negative economic effects, suggesting that 

any economic increase due to State and federal Medicaid spending increases may be offset 

by loss of State spending elsewhere. CMS, Medicaid Spending Projected to Rise Much 

Faster Than the Economy, http://www.hhs.gov/news/press/2008pres/10/20081017a.html (last 

visited Nov. 23, 2010) (CMS’s Acting Administrator acknowledged that “[h]igh and 

increasing Medicaid spending clearly leaves States less able to fund other state priorities”). 

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Similarly, increased taxes or fees to support State Medicaid spending would have an adverse 

effect on the Florida economy, which may offset any economic increase due to State and 

federal Medicaid spending increases. See Pl.App. Ex. 3 (Watkins Decl.); Christina D. 

Romer, Back to a Better Normal: Unemployment and Growth in the Wake of the Great 

Recession, Council of Economic Advisors, April 17, 2010 at 9 (suggesting that tax increases 

would only compound the States’ fiscal dilemma and that aid to the States was given for the 

very purpose of keeping them from raising taxes), 

60. Absent reform, state Medicaid/CHIP spending is estimated to increase 60.7 percent by 2019 

even under the best-case scenario. Bowen Garrett et al., Urban Institute, The Cost of Failure to 

Enact Health Reform: Implications for States, at 13 tbl.2B (Sept. 30, 2009) (Ex. 38). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph, except to admit that it is contained in the cited Urban Institute 

Report. This Report speaks for itself. CMS projected a baseline increase in spending 

projections at an annual average rate of 7.9 percent through 2019 (and 9.9 percent just in 

2009). CMS, National Health Expenditure Projections 2009-2019, at 1-2, 

https://www.cms.gov/NationalHealthExpendData/downloads/proj2009.pdf (last visited Nov. 

10, 2010). Importantly, however, more than 60 percent of Medicaid spending is considered 

optional spending that has not been mandatory for states and, until the ACA, could be cut if 

necessary to control costs. See Anna Sommers, Medicaid Enrollment and Spending by 

“Mandatory” and “Optional” Eligibility and Benefit Categories, Kaiser Comm'n on 

Medicaid & the Uninsured, June 2005, at 11. The ACA’s maintenance of effort provisions 

lock States into significant, formerly optional Medicaid spending. 

61. There is a “great deal of variation across states in terms of Medicaid coverage, the uninsured, 

state fiscal capacity, leadership, and priorities.” Kaiser Comm’n on Medicaid & the Uninsured, 

Medicaid Coverage & Spending in Health Reform, at 1 (May 2010). 

Response: The Kaiser Commission Report speaks for itself. Whatever the variations, they 

are irrelevant and immaterial to the constitutionality of the ACA’s transformation of 

Medicaid. 

62. In fiscal year 2008, federal Medicaid grants ranged from $246 million (Wyoming) to $23.8 

billion (New York). Kaiser Family Foundation, Federal & State Share of Medicaid Spending, 

FY2008 (Ex. 39). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph. The Kaiser Commission Report speaks for itself. 

63. In fiscal year 2008, federal medical assistance percentages (“FMAPs”) ranged from 50 

percent (several states, including Colorado) to 76 percent (Mississippi). 71 Fed. Reg. 69209, 

69210 (Nov. 30, 2006). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph. This citation speaks for itself. 

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64. In fiscal year 2008, state spending on Medicaid, as a proportion of total state revenues, 

ranged from 8.4 percent (Alaska) to 34.5 percent (Missouri). Nat’l Ass’n of State Budget 

Officers, Fiscal Year 2008 State Expenditure Report, at 10 tbl.5 (Fall 2009) (Ex. 40) [hereinafter 

NASBO Report]. 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph. This citation speaks for itself. 

65. In fiscal year 2008, the proportion of total state revenues formed by federal Medicaid grants 

ranged from 4.4 percent (Alaska) to 21.5 percent (Missouri). See NASBO Report at 10 tbl.5; 71 

Fed. Reg. at 69210. 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the 

averments made in this paragraph. This citation speaks for itself. 

66. In fiscal year 2008, Mississippi spent 11 percent of its budget on Medicaid. NASBO Report 

at 10 tbl.5. 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph. This averment appears to be disputed in the table it cites, which 

provides that 22.4 percent of Mississippi’s total expenditures were for Medicaid. 

67. In fiscal year 2008, Pennsylvania spent more than 30 percent of its budget on Medicaid. 

NASBO Report at 10 tbl.5. 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph. This citation speaks for itself. 

68. Many states, including Florida, provide subsidized care outside of Medicaid, funded entirely 

with state or local dollars. CEA, The Impact on States, at 23-26. 

Response: See ¶¶ 48-56. 

69. The vast majority of states collect personal income, corporate income, and sales taxes. Fed’n 

of Tax Adm’rs, 2009 State Tax Collection by Source (Ex. 42). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph. This citation speaks for itself. 

70. Six plaintiff states (Alaska, Florida, Nevada, South Dakota, Texas, and Washington) impose 

no personal income tax. Fed’n of Tax Adm’rs, 2009 State Tax Collection by Source. 

Response: This citation speaks for itself. 

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71. Three plaintiff states (Nevada, Texas, and Washington) impose no corporate income tax. 

Fed’n of Tax Adm’rs, 2009 State Tax Collection by Source. 

Response: This citation speaks for itself. 

72. One plaintiff state (Alaska) imposes no sales tax. Fed’n of Tax Adm’rs, 2009 State Tax 

Collection by Source. 

Response: This citation speaks for itself. 

73. Of the 10 states in the nation with the lowest per capita tax burden, 7 are plaintiffs here 

(Alabama, Arizona, Colorado, Florida, Georgia, South Carolina, South Dakota, and Texas). 

Fed’n of Tax Admins., 2009 State Tax Revenue (Ex. 43). 

Response: This citation speaks for itself. 

74. Between 1966 and 2000, Medicaid enrollment expanded from 4 million to 33 million. John 

Klemm, Ph.D., Medicaid Spending: A Brief History, 22 Health Care Fin. Rev. 106 (Fall 2000) 

(Ex. 31). 

Response: Plaintiffs lack knowledge or information sufficient to admit or deny the averment 

made in this paragraph, which is irrelevant and immaterial to the constitutionality of the 

ACA’s Medicaid program. Moreover, the statement is misleading to the extent that it would 

ascribe enrollment expansion to vast changes in Medicaid’s eligibility terms over the years. 

For example, all 50 states participated in Medicaid in 2000, but many did not participate in 

1966 (the inaugural year). Furthermore, more than 60 percent of Medicaid spending is 

considered optional spending that was not mandatory for States during these years. See Anna 

Sommers, Medicaid Enrollment and Spending by “Mandatory” and “Optional” Eligibility 

and Benefit Categories, Kaiser Comm'n on Medicaid & the Uninsured, June 2005, at 11. 

The ACA transforms the Medicaid program from its traditional bounds as a partnership to 

assist poor and needy persons to one that locks States into providing services for those in 

formerly optional eligibility categories and requires States to cover approximately 20 million 

more higher-income persons (83.9 million persons within Medicaid & CHIP programs) 

virtually overnight. See Pl.App. Ex. 39 (Richard S. Foster, Estimated Financial Effects of the 

“Patient Protection and Affordable Care Act,” Centers for Medicare & Medicaid Servs.,

April 22, 2010) at 3. This figure represents more than one-quarter of the U.S. population. 

See http://www.census.gov/compendia/statab/2010/tables/10s0002.pdf. 

Respectfully submitted, 

 BILL MCCOLLUM 

 ATTORNEY GENERAL OF FLORIDA 

 /s/ Blaine H. Winship

 Blaine H. Winship (Fla. Bar No. 0356913) 

 Special Counsel 

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Case 3:10-cv-00091-RV -EMT Document 136 Filed 11/23/10 Page 26 of 28
 Joseph W. Jacquot (Fla. Bar No. 189715) 

 Deputy Attorney General 

 Scott D. Makar (Fla. Bar No. 709697) 

 Solicitor General 

 Louis F. Hubener (Fla. Bar No. 0140084) 

 Timothy D. Osterhaus (Fla. Bar No. 

0133728) 

 Deputy Solicitors General 

 Office of the Attorney General of Florida 

 The Capitol, Suite PL-01 

 Tallahassee, Florida 32399-1050 

 Telephone: (850) 414-3300 

 Facsimile: (850) 488-4872 

 Email: blaine.winship@myfloridalegal.com 

 Attorneys for Plaintiff States

 David B. Rivkin (D.C. Bar No. 394446) 

 Lee A. Casey (D.C. Bar No. 447443) 

 Baker & Hostetler LLP 

 1050 Connecticut Avenue, N.W., Ste. 1100 

 Washington, DC 20036 

 Telephone: (202) 861-1731 

 Facsimile: (202) 861-1783 

 Attorneys for Plaintiff States, National

Federation of Independent Business, Mary

Brown, and Kaj Ahlburg

 Katherine J. Spohn 

 Special Counsel to the Attorney General 

 Office of the Attorney General of Nebraska 

 2115 State Capitol Building 

 Lincoln, Nebraska 68508 

 Telephone: (402) 471-2834 

 Facsimile: (402) 471-1929 

 Email: katie.spohn@nebraska.gov 

 Attorneys for Plaintiff the State of Nebraska

Karen R. Harned Bill Cobb 

Executive Director Deputy Attorney General for 

National Federation of Independent Civil Litigation 

Business Office of the Attorney General of Texas 

Small Business Legal Center P.O. Box 12548, Capitol Station 

1201 F Street, N.W., Suite 200 Austin, Texas 78711-2548 

Washington, DC 20004 Telephone: (512) 475-0131 

Telephone: (202) 314-2061 Facsimile: (512) 936-0545 

Facsimile: (202) 554-5572 Email: bill.cobb@oag.state.tx.us 

27 

Case 3:10-cv-00091-RV -EMT Document 136 Filed 11/23/10 Page 27 of 28
28 

Of counsel for Plaintiff National Attorneys for Plaintiff the State of Texas

Federation of Independent Business 

 

CERTIFICATE OF SERVICE

 I hereby certify that, on this 23rd day of November, 2010, a copy of the foregoing 

Plaintiffs’ Response to Defendants’ Statement of Facts As to Which There Is No Genuine Issue 

was served on counsel of record for all Defendants through the Court’s Notice of Electronic 

Filing system. 

 /s/ Blaine H. Winship

 Blaine H. Winship 

 Special Counsel 

 

Case 3:10-cv-00091-RV -EMT Document 136 Filed 11/23/10 Page 28 of 28