As the country braces for a decisive U.S. Supreme Court ruling on the future of the Affordable Care Act, some states are taking steps to prepare for the potential fallout.
But not Missouri.
Hampered by a law that was adopted before the current legal challenge took shape, Missouri officials are left to scratch their heads as health insurance for 200,000 residents hangs in the balance.
At issue is whether the Affordable Care Act allows government subsidies for buying insurance to all consumers. The administration of President Barack Obama says yes, but plaintiffs in the case before the high court say the law limits subsidies to those who live in states that operate their own insurance exchange.
Missouri and nearly three dozen other states do not operate their own exchange and instead rely on the federal HealthCare.gov platform. A ruling in the case could come as early as Thursday, though it’s not expected until later this month.
In anticipation of a ruling striking down the subsidies in their states, many are rolling out proposals to limit the fallout. Health policy experts say a decision against the Obama administration would likely put health insurance out of reach for those currently receiving subsidies and would drastically raise prices on other consumers.
The quickest way for states to ensure subsidies continue to flow to their residents would be to set up their own exchanges. On Tuesday, Pennsylvania, Delaware and Arkansas all received conditional approval from the federal government to do just that if the court rules against the subsidies.
Other states are considering ways to continue to use HealthCare.gov but in a way that gives them more control, satisfying the requirement that states operate an exchange for continued access to subsidies.
Illinois’ hospital association put forward a proposal this week to “rent” HealthCare.gov, an arrangement already in place for New Mexico, Oregon and Nevada.
“It looks like [federal officials] are making some plans to have some sort of lease-option available,” said Caroline Pearson, a senior vice president at consultant Avalere Health. “That is the most viable option on the table.”
But the options to create its own exchange or lease HealthCare.gov are a long way off for Missouri, if possible at all.
Seeking to stop the creation of a state-based exchange before the law took effect, lawmakers in 2012 sent voters a measure to block the governor from creating such an exchange on his own. It passed overwhelmingly.
Under the law, only the Legislature or voters through the petition process can authorize a state exchange. It also blocks the governor and other state officials from providing any support to enrollment efforts.
Sen. Rob Schaaf, R-St. Joseph, a physician, sponsored that law. In an interview Tuesday, he said he would not be in favor of creating a state exchange if the subsidies are struck down.
“It is not the place of government to redistribute wealth and that’s all these subsidies are,” he said. According to the most recent federal statistics, about 200,000 Missourians receive an average monthly subsidy of $278 per month to purchase coverage.
Schaaf said he thinks Congress would address the subsidy question. But health advocates say that is easier said than done and that states should have their own options ready.
“Even though it is most effective and efficient, it is not easy to predict that Congress will get the job done,” said Ron Pollack, executive director of Families USA, a pro-Affordable Care Act advocacy group.
“We do hope the states make decisions as promptly as possible to run state-based marketplaces.”
Missouri is hardly alone. According to the National Conference of State Legislatures, nine other states have similar laws.
Running a state-based marketplace isn’t an easy proposition. Many have had financial and operational difficulties. An arrangement to use the infrastructure and systems of HealthCare.gov could be a way around those issues for many states.
But experts say even that arrangement would require at a minimum the approval of a state’s governor and could not be carried out unilaterally by the Obama administration.
Missouri’s Republican-led Legislature, long hostile to the law, would likely need to sign off on such a plan.
Another option, to allow nonprofits to operate exchanges, would require similar approval.
When contacted by the Post-Dispatch on Tuesday, Missouri Gov. Jay Nixon’s office would say only that they are continuing to monitor the situation.
In a 2013 letter to then-Health and Human Services Secretary Kathleen Sebelius, Gov. Jay Nixon said the state would be unable to establish an exchange because of Missouri’s law.
Schaaf agrees with that assessment and said there is no way around the Legislature if subsidies are struck down.
“It absolutely, 100 percent guaranteed stops the governor from acting unilaterally to create the exchange,” Schaaf said.
This report was prepared in collaboration with Kaiser Health News, an editorially independent program of the Kaiser Family Foundation.