With the decision in King v. Burwell looming, six former senior officials from HHS have written a letter offering advice to the governors and legislators in the 34 states that have not created their own state-based health insurance exchanges.
The purpose of the letter is to provide state leadership with analysis, which could be helpful for anticipating viable contingency options in the event the Supreme Court rules in favor of the plaintiffs later this month. The analysis, which was put together by Leavitt Partners, contains the combined opinions of the former HHS officials.
If the high court rules in favor of the plaintiffs in King v. Burwell, up to 8 million Americans in the 34 states could lose their health insurance subsidies.
The group of former HHS officials said states have four options in the event the Supreme Court rules in favor of the plaintiffs.
1. Do nothing and hope the inevitable political fallout is manageable. The humanitarian and political consequences of this option should be "unacceptable to public officials," the report stated.
2. Build a state-based marketplace under the existing rules. This option is problematic from a logistical, political and financial standpoint. This option may not be a viable one as "building an ACA-compliant marketplace in a few months and finding the money to do so is not feasible for many states," the report stated. Although it might be difficult, both Delaware and Pennsylvania have been conditionally approved to create their own health insurance exchanges.
3. Weigh in on the congressional debate and hope to craft a viable solution. Governors and state legislators, through their respective national organizations, should begin to weigh in on the congressional debate, according to the report. However, due to complex policy processes in place by organizations like the National Governors Association and the National Conference of State Legislatures that minimize partisan activity, it is unlikely an agreement could be reached on a solution.
4. Align with other states and identify points of flexibility the administration can authorize. Governors and state legislators could organize a bi-partisan effort among states to persuade the Obama administration to use regulatory power to simplify the process of establishing a sate-based marketplace.
The opinions of the following former HHS officials were incorporated into the analysis:
Micheal O. Leavitt, former HHS secretary; Thom Barker, former acting general counsel at HHS and CMS; Rich McKeown, former HHS chief of staff; Tevi Troy, former deputy secretary at HHS; Vince Ventimiglia, former assistant secretary for legislation at HHS; and Kerry Weems, former acting administrator at CMS.
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