A key issue in King v. Burwell, the health care reform case argued before the Supreme Court in early March, is whether Congress intended to make certain subsidies available to eligible people across the country or only to those living in states that created their own health insurance exchange.
Sam Stein and colleagues at the Huffington Post filed public record requests with several key states, including some in which prominent GOP governors did not establish exchanges. The reporters also reviewed records from the U.S. Department of Health and Human Services and more than 50,000 previously released emails from the Oklahoma governor’s office. The requests covered a period between the March 2010 passage of the Patient Protection and Affordable Care Act and August 2011, when the IRS ruled that the subsidies should be available in all states.
How much discussion did Stein find about the risk of losing subsidies?
Not a word.
Among all the emails, letters and press releases reviewed, there was not a single instance of an administration official warning that if states decided not to run their own health care exchanges, their citizens would not be eligible for the tax credit subsidies. Nor was there a single instance of a state official recognizing or anticipating such consequences. As states faced the choice of establishing their own exchange, creating a hybrid exchange with the federal government, or letting the federal government have full control, no one appeared to be discussing what plaintiffs now say is the most consequential financial element of the whole arrangement.
The issue didn’t get attention until later – after conservative authors, advocates and think tankers began talking and writing about it. That started the path that led the plaintiffs to court.
Huffington Post acknowledges the limits of its search:
To be clear, just because HuffPost couldn’t find evidence of any discussion on the topic doesn’t prove those discussions never took place. Public-record caches aren’t always comprehensive, and there are states whose public records we did not examine. Moreover, there is evidence – slim, but still there – to suggest that officials did imagine subsidies being used as an incentive. The most famous example is a set of since-disavowed comments by former HHS adviser Jonathan Gruber that were made well after the IRS ruling.
But if the subsidies were, in fact, structured in a coercive way, then the lack of warning from the federal government makes little sense, and the lack of any debate or apparent distress among state officials is truly remarkable.
The Huffington Post’s search was broad, and its story quoted and reproduced enough documents to show what the state officials were concerned about. The subsidy issue apparently just didn’t register.
The Supreme Court is likely to rule on the case by late June.
My thoughts exactly. At the time, none of the discussion or guidance included any variation of “if you don’t build your own health insurance marketplaces, your residents will lose out on subsidies.” It was a dramatically different tone than the discussion and guidance surrounding the Medicaid expansion.