If Supreme Court rules against Obamacare, states have few options

Health and Human Services Secretary Sylvia Mathews Burwell has warned members of Congress that the Obama administration's options would be limited if the Supreme Court strikes down a key part of the healthcare law.

March 2, 2015 3 AM PT

Reporting from WASHINGTON — With Supreme Court arguments in the latest challenge to the Affordable Care Act just days away, a sense of impending crisis has hit state officials and patient advocates in many parts of the country. Many worry they have no good options.

If the justices rule in favor of the challenge, it would wipe out insurance subsidies for millions of consumers in nearly three dozen states that use the federal HealthCare.gov marketplace established through the health law.

Although consumers could still get aid in states that run their own marketplaces, officials in states that rely on the federal government fear they don’t have the time or resources to set up their own exchanges, even if they could overcome local political opposition.

“The recurrent nightmare for us is … ‘What do we do?’” Dr. William J. Hazel, Virginia’s health secretary, said at a recent conference in Washington. “We’re starting from zero. And all of those states like us will probably start at zero.”

The Obama administration, meanwhile, has provided states little guidance, a strategy many believe is calculated to pressure the Supreme Court not to sow chaos by invalidating the aid.

Congressional Republicans also have not advanced alternative plans to help states, though some senior GOP lawmakers say they might restore aid to consumers if the president agrees to change the health law commonly called Obamacare. The deeply divided party hasn’t agreed on what changes to seek, however.

The marketplaces — now in their second year — allow Americans who don’t get health benefits at work to shop online among plans that must all offer basic benefits and cannot turn away customers, even if they are sick.

Americans making less than four times the federal poverty level — or about $94,000 for a family of four — qualify for subsidies to offset the cost of their premiums.

The law’s challengers argue that a strict reading of the statute makes those subsidies available only in states that established their own marketplaces, rather than having the federal government operate the marketplace for them.

The Obama administration, the law’s congressional architects and many outside legal experts disagree.

The justices are likely to decide the case in late spring. If they rule against the administration, nearly 90% of health plan enrollees in 34 federal marketplace states — an estimated 7 million people — would lose aid.

To restore it, a state like Virginia could conceivably set up its own marketplace.

Virginia Gov. Terry McAuliffe, a Democrat, has repeatedly supported expanding coverage, calling it a “key component of building a stronger Virginia economy.” About 400,000 Virginians have health plans through HealthCare.gov.

Several other governors, including a few Republicans, have indicated they don’t want to let hundreds of thousands of their residents lose coverage.

“If the court rules, and we find half a million Ohioans without insurance, it’s something we’re going to have to deal with,” Republican Gov. John Kasich of Ohio said recently.

Building a state marketplace isn’t likely to be easy, however, especially if the Supreme Court rules in June that subsidies must be terminated immediately.

The Health and Human Services Department operates a complex online system for states through HealthCare.gov. The federal agency staffs call centers with thousands of workers. And in some states, federal officials are regulating health plans, traditionally a state job.

States that set up their own marketplaces spent years preparing for the job at a cost of almost $4 billion in federal aid.

California, whose Covered California marketplace is considered one of the most successful, spent more than $1 billion, according to federal data. Kentucky, which prided itself on operating one of the leaner marketplaces, spent more than $250 million.

The federal grants that helped those states are no longer available, however.

“That money will be gone,” said Hazel, the Virginia health secretary. “So I think we’re going to be looking for private funding, foundation funding. We will probably go back to the administration and beg again, to try to ensure that we can at least keep the folks enrolled.”

Hazel won’t get much help from the state’s Republican-controlled Legislature.

Dr. John O’Bannon, a Republican legislator who chairs a health subcommittee in the Virginia House of Delegates, said lawmakers had no interest in setting up a costly state marketplace.

“The bottom line is that this is a federal problem,” he said. “If the law is upended by the federal courts, the federal government is going to have to fix it.”

Republican resistance would probably be an issue nearly everywhere.

Of the 37 states that rely on HealthCare.gov, only Delaware and Oregon have a Democratic governor and a Democratic legislature.

In some places, such as Missouri, state law explicitly prohibits state employees from implementing the Affordable Care Act.

Oregon and two other states, Nevada and New Mexico, have technically established their own marketplaces but use HealthCare.gov, which probably protects their residents’ access to subsidies.

The widespread Republican opposition and technical barriers to establishing a state marketplace have some supporters of the health law hoping the Obama administration will unilaterally enact a fix.

The administration might, for example, issue regulations that make it easier for states that are already cooperating with the federal government to become state-based marketplaces, even though they would continue to rely on the federal HealthCare.gov site.

Seven states, including Illinois, are currently “partnership” states that provide consumer assistance to residents shopping for health coverage. Another seven help oversee the health plans being sold on HealthCare.gov in their states.

But simply using a federal regulation to label these “state marketplaces” when state leaders have not affirmatively indicated that they want to operate their own marketplace would almost certainly provoke a backlash from opponents of the law.

Last week, Health and Human Services Secretary Sylvia Mathews Burwell warned members of Congress that the Obama administration’s options would be limited.

“We know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage to our healthcare system that would be caused by an adverse decision,” she said.

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Wes Venteicher in Chicago contributed to this report.