Correction: An earlier version of this article incorrectly said that the federal poverty level for a household of four is $35,923. The actual figure is $30,656. The higher figure is for a household of five. This version has been corrected.
Now that nearly all of the new national health-care law has been deemed constitutional by the Supreme Court, the question of what happens next could depend to a large extent on where you live.
The three jurisdictions that make up the Washington area are as good a place as any to see how much variation there is. They represent the full spectrum of a country in which some states are moving quickly to implement the law, others continue to resist and still others fall somewhere in between.
Few states have been as enthusiastic about the Affordable Care Act as Maryland. It has the scaffolding in place for a marketplace in which small businesses and individual consumers can purchase coverage beginning in 2014.
Virginia, which was at the forefront of the legal challenge, has done extensive planning but has yet to implement any of it — and may not even now, although continued inaction means it could be forced to accept an insurance marketplace dictated by Washington.
“We’ll see,” Virginia Gov. Robert F. McDonnell (R) said shortly after the court decision.
McDonnell, who has frequently been mentioned as a possible running mate for Republican presidential challenger Mitt Romney, indicated that he may be willing to gamble on the results of the November election: “I think there’s a fair bet that if there’s a new president — and I hope there will be — that this policy will not stand.”
The District of Columbia, meanwhile, is not as far along as Maryland in its planning, but it intends to come up with its own exchange — an ambitious undertaking given its small size but one that would build on the extraordinary progress that the District has made over the past decade in providing coverage to the uninsured.
How well the health-care law works will hinge in large part on how willing and successful the states are in carrying out the two major challenges it presents.
The first is in setting up individual state exchanges. If they work as intended, the systems would be the equivalent of shopping malls for health coverage, bringing together the purchasing power of large numbers of small businesses and consumers, who ideally would be able to select among a variety of health plans vigorously competing for their business.
It is a new role for states, said Maryland Lt. Gov. Anthony G. Brown (D), who is spearheading the effort in Annapolis. “We regulate markets,” he explained. “We have never created markets.”
The second big role for the states — one that was thrown into greater question by the Supreme Court ruling — is in the expansion of Medicaid programs to cover people earning up to 133 percent of the federal poverty level, which for a family of four would be those making $30,656 or less.
As the law was written, states that fail to cover those people, 17 million in all, would lose all their federal funding for Medicaid, which for most states is the second-largest program after elementary and secondary education. But the court ruled that Washington could not put “a gun to the head” of the states to force them to expand their rolls.
But the law includes a generous offer for states that agree to allow more people to go on Medicaid: The federal government will pay the entire cost from 2014 to 2016, and 90 percent after that.
The court’s ruling has clarified many options states must consider as they move forward, but questions remain, as the varying situations of Maryland, Virginia and the District demonstrate.
Just one day after President Obama signed the health-care law on March 24, 2010, Maryland Gov. Martin O’Malley (D) ordered his state to get to work on implementation. As a result, Maryland was the first in the nation to hire a director, Rebecca Pearce, for the insurance exchange that is supposed to be open for business in 2014; she has about a half-dozen people working for her.
Maryland has applied for the law’s federal Medicaid funding.
The state expects about 146,000 people to enroll in the exchanges in 2014, a number that is projected to grow to 175,000 by 2020. The latest forecast has the number of the state’s citizens on Medicaid expanding by 102,000 in 2014 and reaching an additional 188,000 six years later.
Maryland has made some decisions about its exchange. For instance, small businesses and individuals will participate in a single marketplace rather than two separate ones. And legislation passed in April established a “navigator” program, in which insurance brokers and community outreach workers will be authorized to assist people in enrolling.
Expected this year are decisions on whether to require insurers in the Maryland exchange to offer a more generous benefits package than spelled out under the federal law. Ensuring effective competition in the marketplace will mean striking a balance between providing citizens the most generous coverage possible and creating an environment attractive enough that insurers will be drawn to doing business in the state.
There are other practical concerns as well, such as making sure the state’s information technology is up to speed, the lieutenant governor said. That is particularly challenging with the Medicaid program, where beneficiaries’ circumstances can change rapidly, making them eligible for coverage one month but not the next.
“I’m confident we will be successful,” Brown said, “but it doesn’t come without a healthy dose of concern that when this thing goes live, it will do what it is intended to do.”
If Maryland’s leadership is among the most eager to implement the new law, Virginia’s represents the opposite. Five minutes after Obama signed the legislation, Virginia Attorney General Ken Cuccinelli II (R) filed the first lawsuit challenging its constitutionality. Cuccinelli’s suit was thrown out, but other states’ challenges of the law wound up before the Supreme Court.
Now that the challenge has failed, Virginia faces new decisions as deadlines close in. If the state does not have its exchange ready in time, its citizens will have to be part of the federal one, assuming the law stands.
“If we have to choose between accepting another new federal bureaucratic monstrosity of a federal health-care exchange versus a state exchange where we can determine what goes in there — if that’s the Hobson’s choice we’re faced with — my inclination is we ought to have a state-based exchange,” McDonnell said. “But I think even a state exchange is a bad idea. It’s more bureaucracy.”
That stance surprised some officials because the Virginia Department of Health has been preparing to apply for a federal grant that would pay for planning the exchange. It had planned to submit the application just ahead of a Friday deadline set by the federal Department of Health and Human Services.
“They’ve intentionally put us under the gun with some of these deadlines,” McDonnell said. “My guess is, like some of the deadlines already, they will be extended.”
His guess was right. HHS announced Friday that the funding deadline had been extended, although states have only until November to let the federal government know whether they intend to start their own exchanges.
The governor declined to say whether Virginia would opt out of the Medicaid expansion. He noted that Medicaid is the fastest-growing item in the Virginia budget, consuming 21 percent of state spending. It accounted for only 5 percent three decades ago.
Virginia Sen. John Watkins
(R-Powhatan), chairman of the Commerce and Labor Committee, said it would be a mistake for Virginia not to get moving toward implementing the law.
Watkins said he is no fan of the law, but “there are some that feel like we’ll just wait until November and see what happens, and that’s really putting all your eggs in one basket. I’m very concerned about us waiting. If that’s going to be the law of the land, I want Virginia in control of its own exchange.”
In some ways, the District starts the process in an enviable position.
Thanks to the efforts it made to expand health coverage in the wake of the 2001 closure of D.C. General Hospital, it has cut the rate of the uninsured by more than half, to 7.6 percent of the city’s population in the 2010 census. Massachusetts, which passed a health-care law similar to the federal one in 2006 when Romney was governor, is the only place that boasts a greater proportion of its population with coverage.
The District was one of the first two jurisdictions to take advantage of the law’s expansion of Medicaid. It covers people with income up to 200 percent of the federal poverty level. The option is attractive because Medicaid is less expensive to the District and offers more generous benefits than the alternative, a program known as the D.C. Healthcare Alliance.
The District expects 60,000 to 125,000 people to enroll in its exchange.
On Friday, the city council’s health committee approved seven nominees for the exchange board, with a vote by the full council expected July 10.
It was fitting that a day after the Supreme Court decision, “we should be pushing ahead with implementing the reforms articulated by President Obama’s legislation,” health committee Chairman David A. Catania (I-At Large) said in a statement. He expressed confidence that the exchange will ultimately reduce health-care costs and make insurance more understandable.
That could be a tall order, however, given the District’s relatively small size.
Delaware, whose population is about 50 percent larger than the District’s, decided it would be more efficient and less expensive to cast its lot with the federal exchange, rather than trying to set up its own.
“It’s not at all based on ideology,” Delaware Gov. Jack Markell (D) said in an interview. “It’s based on math.”