There's a looming Supreme Court case that could essentially gut the foundation of the Affordable Care Act next summer, striking out the subsidies that help most Obamacare enrollees afford health insurance. You might think that the Obama administration would want to prepare for this worst-case scenario, but its top health official insists things are business as usual.
Health and Human Services secretary Sylvia Mathews Burwell during a Tuesday morning press conference refused to say if the administration is drawing up contingency plans in case the Supreme Court in June rules against the subsidies in the 37 states that are relying on HealthCare.gov for enrollment in Obamacare marketplace coverage.
The plaintiffs in the case, King v. Burwell, insist that the ACA only intended to make insurance subsidies available in states that run their own exchanges — something that only 13 states and the District are now doing. The administration contends that the ACA intended for every state, regardless of who runs the exchange, to access the subsidies.
"When one is in New York, then one is in Florida, the idea that Congress intended for people of New York to receive these benefits for affordable care but not necessarily the people of Florida, we believe we have the right position," Burwell said.
It's hard to understate the potential impact of an adverse ruling for the administration. In 2014, almost 9 in 10 people who bought coverage through the federal-run exchange, or close to 5 million people, received financial assistance. If that suddenly goes away in June, when a ruling is expected, that instantly makes their coverage less affordable.
When I asked Burwell during the press conference whether the administration is preparing any contingency plans in case it loses the Supreme Court case, she wouldn't say.
"Nothing has changed in our open enrollment," she said. "We believe our position is ... correct and accurate."
Another reporter followed up, saying it seems irresponsible that the administration wouldn't be thinking about contingency plans, given the unpredictability of how the Supreme Court might rule. Again, Burwell offered a nearly identical response: the administration is focused on this enrollment period, and it believes its position is the right one.
It was basically a non-answer, which attracted the attention of Sen. Mitch McConnell's spokesman, who apparently was watching the webcast of the press conference:
Interesting, @SecBurwell refuses to say whether or not @HHSGov is doing ANY contingency planning for #KingVBurwell. @NoamLevey @JasonMillman
— STEW 🇺🇸🐶 ⚾️ 🚘 (@StewSays) December 23, 2014
I later asked Burwell whether that meant there are no contingency plans at all.
"I'm going to stick where I am," Burwell said, then essentially repeating her answer for a third time.
If the Supreme Court does rule against the administration, there is an obvious way for states to ensure that their citizens would be eligible for the Obamacare subsidies — they set up their own exchanges. It's not exactly an easy process and the politics would be complicated, but there are some ideas out there for how a state could quickly establish an exchange and perhaps before the start of the next enrollment period, scheduled to start in October.
But HHS right now won't publicly say whether it's thinking about any of those, or if it's looking at other options. It could be that the administration doesn't want to give the Supreme Court any indication that it could provide an easy fix to the law in the event of an adverse ruling. But it's hard to believe that people in the department aren't planning for this scenario.