Should we be concerned about losing health insurance subsidies via the Supreme Courts Ruling?
You may have seen the headlines, there is currently an argument that made it clear to the Supreme Court, somehow, about whether people without STATE SPECIFIC EXCHANGES might lose their subsidies for health insurance. 4 words in the Affordable Care Act are the basis for the challenge.
First I will clarify that this doesnt affect California because our state DID establish an exchange, Covered California. But, the courts ruling may affect our friends and family in other states IF they choose to rule against the ACA because of the poor phrasing.
The Supreme Court case, King v Burwell, is dealing with those states that did not build their own similar exchanges but instead used the one provided by the US Government. There are only 16 states that did choose to set up or "establish" their own insurance exchanges. The rest were "established" by the federal government. When the IRS drafted its rules, it provided the tax credits to people who bought health insurance on both state AND federal exchanges but based on the literal reading of the law, anyone who uses a federal exchange to buy health insurance should not qualify for a federal subsidy.
"Established by the state" are the 4 words in the Affordable Care Act that gave the legal team the fuel needed for taking this clear up the legal chain because the act says that to get the subsidies you have to have bought insurance from your state, not the federal government. America loves to redefine words, so it will be interesting to see how the justify redefining "established". By not creating their own state exchances the way California & 15 others did, the fear is that states may have left their citizens with no rights to subsidies.
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My thoughts? I am personally NOT worried that the Supreme Court would hold the ACA to it's seemingly poor phrasing. I think that the states who did not "establish" their own exchanges will have been considered to have adopted the exchange that was established for them. Afterall, why would the federal goverment establish an exchange if the states were not intended to be able to consider the government's exchange as their own? Who would then use that exchange if no states decided to? Each state would have had to make a conscience decision to "establish" a relationship with the goverment that allows it to use its exchange...
To put this into typical perspective, it is similar to the average persons use of the city's water... to be considered a habitable place, we must have running water. Not all of us live on plantations or ranches with wells, so we "establish" a water source by making an arrangement to use our city's water instead of drilling our own wells on our small properties. That IS considered "establishing" running water much the same way I think the Supereme Court should consider those states who adopted the federal exchange as having "established" an exchange. To "establish" doesnt necessarily mean "build a new one". Right? So, we will see how this goes, but I do not think anyone should worry one little bit. Our President, whether we agree with his policies or not, has shown that he isn't afraid of us and we are NOT the boss of him. If the phrasing is poor, so be it, he will revise it for clarity but he will not let anyone lose their subsidies or throw out his mandate. There have been many mistakes and misspoken and absolutely broken promises, but the POTUS will defend this law to his death, if need be, and no one is going to destroy it by hitching their lawsuit on 4 isolated words. But they sure will try.
Both sides of this lawsuit are half-right, the law says one thing and means another. The challengers may have a clear sense of what those four words mean out of context, but they are blind to the meaning of the law as a whole, and the Supreme Court is not. I am still very surprised this has made it all the way into their hands. And, let's see if I am surprised by their ruling this week.
