King v. Burwell Oral Arguments THIS WEEK: A View from California

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Judi Hilman

Director of Policy Research and Communications
Organization: Health Access

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This post originally appeared on the Health Access Blog.

Tomorrow, the Supreme Court will hear oral arguments on King v. Burwell, a case that contests the subsidies available in the 36 states that have federally facilitated marketplaces or FFMs. The case is based on a hyper-literal, politically motivated mis-reading of Section 1311 of the Affordable Care Act (ACA), which says that subsidies are available to people “enrolled through an Exchange established by the State under 1311.” At stake is nothing less than affordable coverage for 8 million Americans (See Kaiser Family Foundation’s helpful overview of King v. Burwell here).

No matter how it gets decided in June, King v. Burwell will have no impact in California – end of story. But it is fair to say that an adverse decision will create two health care Americas – one that provides peace of mind for its residents (California) and another that will put families right back where they started: at risk of ‎not receiving the health care they need.

States like California that are implementing the ACA in good faith are already demonstrating that the ‎law effectively increases health coverage, aids the long-term effort to lower costs, and creates helpful competition – something that could be achieved elsewhere if only a state had the will to implement the statute effectively.

Covered California, our state-based exchange marketplace, has bent over backwards to promote the subsidies, with the result that 89% of Covered California enrollees are using them – compared to 87% nationwide. It bears noting that communities of color are particularly benefitting from the premium subsidies and that they will be disproportionately impacted by an adverse decision in the federal marketplace states.

In California we fully understand that without the subsidies, young and healthy people would not enroll, leaving older and sicker consumers behind in the risk pool and thus driving up premium costs. From here the marketplaces would spin into a “death spiral” – and it’s game over for the ACA, at least in the FFM states.

Heading into Wednesday, we can take comfort in the amicus briefs filed on the case – most strongly support Burwell and the current disposition of subsidies in FFM states. The best we’ve seen argues that none of the FFM states had notice that their decisions to delegate marketplace operations to the federal government would have any impact on the availability of subsidies for their residents (see more on the amicus briefs).

Any adverse decision would have no leg to stand on, least of all any notion that FFM states could somehow turn their ships around overnight and become state-based exchanges. It took years of painstaking effort (and upwards of $1 billion in planning grants for California) to craft the consensus for a robust, state-based exchange. It is therefore not reasonable to expect FFM states to scramble to assemble their own exchanges. By the time they sort out the politics or funding of this, it will be too late for their marketplaces and the consumers in those states will pay the price.

In fact, given how groundless and outlandish the case is (if you can stomach the details from Mother Jones, click here), we can do this case justice by stepping up outreach and enrollment efforts all across the land, not just for the Special Enrollment Periods (SEPs) but for anyone still needing to enroll.

Since California has a state-based exchange, subsidies are not at risk here – not at all.

  • If you are receiving a subsidy in Covered California now, you can rest easy.
  • If you work with individuals who are using a subsidy in Covered California, please get the word out that they, too, have nothing to fear.
  • If you are providing outreach or enrollment assistance in California, DO NOT LET THE KING V. BURWELL CASE DISTRACT FROM THE WORK AT HAND. Remember that Covered California has introduced a new special enrollment category for people who recently learned about the tax penalty for being uninsured — we’re guessing that’s a lot of people who could get covered through April 30.

Beyond that, plenty of folks are eligible for a SEP, especially the Young Invincibles who are the most likely to experience a qualifying life event.

To follow the King v. Burwell hearing tomorrow (March 4th):