On March 4 the Supreme Court heard oral arguments in King v. Burwell. A ruling is expected in late June – though it’s possible it could come earlier. The plaintiffs argue that the health insurance subsidies should only be available to people living in states running their own Affordable Care Act health insurance exchanges or marketplaces, not the 34 states using the federal exchange via HealthCare.gov. They cite four words in the text of the law “established by the state” to make this argument. The Administration says it’s clear from reading the full text of the 906 page law that subsidies were to be available in all 50 states, no matter what kind of exchange they have.
By Steve Petteway, Collection of the Supreme Court of the United States (Roberts Court (2010-) – The Oyez Project) [Public domain], via Wikimedia Commons
So the Supreme Court has heard the King v. Burwell challenge to the Affordable Care Act.
Much of the coverage suggested that the March 4 oral arguments seemed to favor the administration, particularly because Justice Anthony Kennedy, often the deciding swing vote on the court, asked some questions showing skepticism of the plaintiff’s case.
But all that tells is precisely that – he asked some questions showing skepticism. He won’t necessarily vote that way. He backed scrapping the entire statute back in 2012 and made clear at that time that he detested the law.
Oral arguments are interesting and important – but rarely decisive. If you think you know how the court will rule – well you have a 50-50 chance of being right.
A few things did come out that health journalists should note. Continue reading
With oral arguments in King v. Burwell scheduled for tomorrow, the Supreme Court will likely rule in late June.
The case challenges whether subsidies, in the form of tax credits, can go to people in states using the federal exchange, or only to those in the states running their own health insurance marketplaces.
After the state cases and 2012 National Federation of Independent Business case, it is the third case that poses an existential threat to the Affordable Care Act. (Hobby Lobby and other contraception-related cases wouldn’t unspool the structure of the whole ACA, only that aspect of women’s preventive health care.)
This case isn’t about whether the Affordable Care Act is constitutional. (The 2012 case was.) This is about interpreting the text, and whether the language of the law allows the subsidies in the federal exchange states.
Learn more about the landmark Supreme Court case in this new tip sheet.
A recent Health Affairs blog post by Heather Howard (a familiar name to AHCJ members who have attended the panels or webcasts she’s done for us) and her colleague Galen Benshoof at the State Health Reform Assistance Network (housed at Princeton) outlined an aspect of the coming King case on exchange subsidies. The information was new to me, and may be unfamiliar to other reporters too. I’ve summarized the key points below and included story ideas at the bottom. You can read the original (more detailed) post here.
The Affordable Care Act (ACA) encourages state innovation in many ways, but one of the most significant is the “Wyden waivers” or the State Innovation Waivers program in section 1332 of the law. They become available in 2017, although planning can start earlier.
Some states are thinking about taking these waivers, which include “exchanges, benefit packages, and the individual and employer mandates.” States can get all the federal money that would have gone into those provisions – hundreds of millions or even billions of dollars – but they have to provide comparable coverage and it must be affordable. HHS and Treasury have released some guidance but not a whole lot of detailed rules and instructions.