Officials from at least 16 states met in early May for a confidential, unannounced meeting to discuss options available to their states if the Supreme Court rules against the Obama administration in the King v. Burwell case.
The Wall Street Journal disclosed the meeting. According to reporters Louise Radnofsky and Stephanie Armour, the officials concluded they would have no practical way to respond to a ruling that would strike down subsidies in the 34 states that do not operate their own health insurance exchanges.
The plaintiffs in the King case argued that subsidies can only be provided to consumers who live in states that have “established” their own exchanges for the purchase of insurance.
The administration counters that, despite the law’s repeated use of the phrase “established by the state,” the clear intent of the legislation was to make subsidies also available to consumers in states that don’t operate their own websites and instead use the federal exchange.
A decision by the Justices is expected before July. The Obama administration has not announced any contingency plans in the event the court rules against it.
If subsidies are barred, the administration has stated, millions of lower-income Americans in the 34 state would be unable to afford health insurance. Insurers would have fewer healthy customers, but would still have to sell coverage to individuals with serious medical issues without charging them higher premiums, putting their financial stability at risk.
According to the newspaper article, state officials “flew to Chicago in early May for a secret 24-hour meeting.” Although the article did not disclose the date of the meeting or the precise number of states represented by the attendees, the reporters learned such specifics such as that the agenda included an evening reception, a day of presentations and a Mexican buffet dinner.
At the close of the meeting, according to the newspaper, “some of those officials concluded their options are likely unworkable.”
The states without exchanges could not quickly set up websites, given their cost and complexity, participants in the meeting told the Journal reporters. In addition, the officials “said it was extremely unlikely” that state governors, legislators, and insurance commissioners could quickly agree on a course of action that would preserve existing subsidies for residents of their states.
Even if the federal government agreed to hand over to the states the software that powers its Healthcare.gov website at no cost, many Republican-dominated state legislatures, and some Republican governors would likely object to implementing the exchanges, the reporters noted.
The article stated the Milbank Memorial Fund, a health-policy foundation, organized the meeting and covered the cost of plane fare and hotel rooms for the state officials.
