Submitted by achenault on Tue, 01/27/2015 – 5:49pm
In November of 2014, the U.S. Supreme Court agreed to hear the case of King v. Burwell. The case challenges the subsidies paid to those enrolled in Qualified Health Plans in states with a Federally-Facilitated Marketplace (FFM), such as Ohio. Subsidies help make health insurance affordable for those with low and moderate incomes.
The Court did not have to review this case. The case does not present a constitutional issue, and there was no disagreement among the federal Courts of Appeals that first heard the case. Why did four justices (the minimum number needed to accept a case) decide to take this case? Many think the Supreme Court wants to reverse the Court of Appeals ruling that protected the subsidies in the majority of the states.
If so, will they find their 5th vote to throw the subsidies of over 150,000 Ohioans into doubt? Not if UHCAN Ohio and thousands of consumer activists across the country can persuade them otherwise, through the powerful stories of people currently getting subsidies in Ohio and the 26 other affected states. If you are a person who is getting a subsidy in the Marketplace or know someone who is, we want to hear from you. Email us at kgmeiner@uhcanohio.org
The Supreme Court will hear oral arguments on March 4, 2015, and a decision is anticipated by the end of June 2015.
The following Q&A will help you understand what this case is all about.
1. Who is King and who is Burwell?
David King is the first among four plaintiffs who are Virginia residents. These plaintiffs, for whatever reason, do not wish to purchase comprehensive health insurance and do not want to pay a penalty. According to the opinion written by the federal Fourth Circuit Court of Appeals (that handles cases coming out of Virginia), “Without the premium tax credits [subsidies], the plaintiffs would be exempt from the individual mandate under the unaffordability exemption.”
Sylvia Burwell is the Secretary of the U.S. Department of Health and Human Services (HHS). She is the first defendant, and the other defendants include the Department of HHS, the Secretary of the Treasury, the Treasury Department, the Director of the Internal Revenue Service, and the IRS.
2. What is the legal argument that people in Federally Facilitated Marketplace (FFM) states, such as Virginia and Ohio, should not be entitled to a subsidy under the Affordable Care Act?
The ACA creates subsidies for persons between 100% and 400% of the poverty level in State Exchanges (Marketplaces). The ACA contains a provision for the federal government to run the Exchange in the states that don’t create one. The plaintiffs argue that Congress should have said that the subsidies also apply to the federal marketplaces, and that without having said that, no one in an FFM state can claim a subsidy.
3. What is the legal argument that persons insured in the FFM states should be entitled to a subsidy?
The ACA defines an Exchange as a health insurance marketplace run by the state. The ACA then provides that the federal government will run an Exchange if the state does not. The federal government is acting on behalf of the state when it runs the Exchange, so there is no reason that the subsidy shouldn’t go with it. As Families USA notes on its website, it would make no sense for the federal government to undertake the responsibility of running a state’s Exchange if all the moderate- and low-income residents were not eligible for a subsidy and thus could not afford health insurance.
4. How will King v Burwell affect Ohioans who are getting subsidies in the individual Marketplace?
If the Court rules against David King and the other plaintiffs, everything will continue as is. If the Court rules in favor of King and against the government, the State of Ohio must decide if it will run an Exchange and save the subsidies of more than 160,000 Ohioans. This decision may depend on whether the State could run its own Exchange but still use the federal web site and application processing system. Congress could also amend the language of the ACA, but politically that is a challenge.
5. Would there be any other effects from a bad decision in King v Burwell?
If subsidies go away, it could also hurt the whole individual insurance market. Who would stay in? Primarily those who use a lot of medical services. This would cause health premiums to go up and threaten the stability of the individual market.
6. Should we be worried?
We should pull out all the stops to make sure that decision makers know the stories of those who are getting subsidies. The legal argument in favor of continuing the subsidies is very strong. What is troubling is that the Court took this case, and that is why advocates are being vigilant.
7. Should people continue to enroll before February 15, 2015?
Yes! Ohioans should continue to enroll in coverage up to the February 15th deadline. The Supreme Court’s opinion is expected in June. Anyone not enrolled by the deadline would not get another chance to buy insurance in 2015 and would be subject to a penalty. See Question 4 above as to what might happen after a negative ruling. If the Court rules against the subsidies, consumers will NOT have to pay them back.
8. What are UHCAN Ohio and Ohio Consumers for Health Coverage doing to fight against a bad decision in King v Burwell?
We are looking for stories of people currently receiving subsidies whose health and financial situation would be harmed if they were taken away. We are sharing those stories with the organizations filing “Friend of the Court” briefs and with the media. We will hold a press conference the day before the March 4th oral argument where people who are going to be impacted by this decision can share their stories. Want to help? Contact kgmeiner@uhcanohio.org.
