In a little over a month, the Supreme Court will hear arguments in the King v. Burwell case, and then sometime this summer we should find out if government subsidies are in fact legal in states using the Federally Facilitated Marketplace. This means, of course, that we’ll spend the next few months trying to guess what the Court will decide.
The decision, as we all know, will have a huge impact on the way we do business, but guessing what the Court will do isn’t so easy. In making their decision, the Justices will take a look at the Affordable Care Act itself to determine if Congressional intent is clear. It isn’t – or at least that’s what most lower courts that have examined this issue have concluded. Therefore, the Court must try to figure out what Congress intended, and to do that it will look at several pieces of “evidence”.
One piece of evidence the Court will certainly consider is that the Congressional Budget Office issued 68 reports before the ACA was passed and never once considered that the subsidies might only be available in some states. Of course, the CBO isn’t Congress. If we look at the bill that was put together by the Senate HELP Committee (which didn’t pass), it did consider offering subsidies only through state exchanges. So, at this point, it’s pretty difficult to predict what the Supreme Court will do.
It would be a good idea, though, for agents to become familiar with the arguments – as we get closer to the hearing, and certainly afterwards, our clients will be asking what we think. And even if they don’t, agents need to try to guess what’s going to happen because that will affect their strategy going forward.
There’s a great piece on the California Healthline website about the case that’s certainly worth taking a look at. Written by Anthony Wilson, the article discusses whether the subsidies are legal, what happens if the subsidies are limited by the Supreme Court ruling, and if there’s a simple workaround that would allow states currently using the Federally Facilitated Marketplace to continue offering premium tax credits and enforcing the employer mandate. Take a look: Examining the Questions Surrounding King v. Burwell
The good news for HPA partners, as we’ve explained in previous posts, is that, regardless what happens, agents will need an individual solution. The King v. Burwell decision and the 40 hour workweek bill together could push millions of Americans to the individual market. If you haven’t yet set up an individual private exchange site, you should take a minute to learn about the benefits.