My "Denny's Grand Slam" #Halbig/#King solution is looking like less of a joke today...
Of course, even if the SCOTUS does rule for the plaintiffs in the end, it's very likely that they'll include a note that basically tells Congress "You know, there's an easy way to fix this; just go over section 1401 with a dab of liquid paper and revise the sentence to read "...enrolled in through an Exchange established by the State or the Federal Government" or whatever.
That would be a completely reasonable solution...if there was a snowball's chance in Hell that Congress would do so. Obviously the GOP would never let it go through (assuming that they hold the House and/or take over the Senate), so the clusterf*ck would ensue.
However, depending on what "established by" and "facilitates" are defined as (see section 1311 as referred to in the passage above), it seems to me that there's a different, equally simple (if utterly stupid) possible resolution which would cost no more than $358.20!
Here's my point: Even the state-run exchanges such as CoveredCA, NYStateofHealth and so aren't run entirely on state resources. I don't know all the technical details, but I'm assuming that they have to hook into the IRS database (to prove federal income tax status), the INS database (to prove citizenship) and other federally-run systems, right? Yes, perhaps 90% of the back end of the start-to-finish "exchange" is handled at the state level, but there's some amount of federal involvement (beyond the actual startup funding, of course) for all of the exchanges.
So, the question becomes, just how much of the "establishment" has to be done by the state, and how much is allowed for by the Feds? For that matter, if "the state" contracts out the actual site development work to a private corporation, that's technically not being done by "the state" or "the Feds"...it's being done by a private company which is simply paid for their services by one or the other (ie, the Oracle debacle in Oregon; CGI Federal at the Federal level; Deloitte or Accenture in other states, etc).
In other words, what do "established by" and "facilitates participation" actually mean?
Depending on the answer to those and related questions, there could be an incredibly stupid-sounding solution.
I'm referring to domain names.
Yes, that's right: For just $9.95 apiece (or less, if you shop around), the United States Federal Government could simply ask the health departments of the 36 states in question to snap up a domain name along the lines of:
...and so forth.
Then, just set up those domain names to repoint to the appropriate sub-section of Healthcare.gov (healthcare.gov/alabama, healthcare.gov/alaska, etc.) Heck, Illinois is already set up this way.
Does that count as "establishing" an exchange? What about if the state threw in a little splashpage before you get redirected to HC.gov?
And no, I'm not being snarky. I'm dead serious...depending on the reasoning of the judges in question.
Now, the "domain solution" I describe above would still have one more hurdle, of course: You'd still have to get the individual states to agree to pony up $9.95 per year and set up a simple domain redirect. Illinois has already done so; presumably other blue-leaning states would follow. That would leave about 30 states, give or take, including Texas, Florida and so forth.
However, can you imagine the public outcry from residents of those states when they find out that they have to return thousands of dollars to the IRS because their own state government isn't willing to pay the price of a Denny's Grand Slam breakfast (with generous tip) to keep things in place? Somehow I don't think even ACA-hating residents of Oklahoma or Tennessee would stand for it.
Yes, I realize how insanely naive this sounds...but weirder things have happened, and most of them seem to have involved the ACA anyway.
Of course, I'm not a lawyer, nor have I read the entire law. I have no idea how naive I'm being here, and I'm sure it's a wee bit more complicated than just registering a domain name and repointing it to HC.gov.
However, many Very Important Legal People who know this stuff far better than I seem to think that I might not be so crazy after all:
Partnerships include DE (too small) and IL (failed to pass R legislature). Safe imho, even using http://healthcare.gov
So you're saying that my "$10 domain/splashpage" scenario could theoretically be a workaround for Halbig if it came to that?
Partnership states, (IL included) having taken fed estab money & submitted business plans, imho should be in the clear,
Fascinating. How about other states going forward; i.e., say Michigan chose to do so this summer (or after SCOTUS ruled)?
Leaves us with the FFM states... the ones that got establishment grants but then failed to launch... should be safe, right?
According to the last CMS report, that's 18 states? AZ, NJ, ND, AK, AL, FL, GA, IN, LA, MO, NC, OK, PA, SC, TN, TX, WI and WY
Many Federally Faciliated Marketplace (FFM) willfully tried NOT to implement ACA. Splashpage could only help the willing.
Maybe, the other way to measure if an HBX has been established is whether an HBX authority was chartered.
Sure, but where's the fun in that? :)
Yeah, I almost didn't even say it cause I thought it was such a buzzkill! By every measure, MI has establshed. Grants. Site. HBX authority. Enabling legislation. Moving to FFM doesn't undo it.
...the text of the ACA leaves enough room for a workaround. A state could, for example, establish an exchange and appoint a state-incorporated entity to oversee and manage it. That state-incorporated entity could then contract with Healthcare.gov to operate the exchange. On the ground, nothing would change. But tax credits would be available where they weren’t before.
I don’t see any legal obstacle to that approach. Larry Levitt doesn’t either; as he wrote on Twitter, “If Halbig stands, the administration could try to make it easy for states to set up state exchanges with a healthcare.gov back-end.” Switching would be pretty painless.
Gaba suggested that would be enough to have a state "establish" an exchange, without actually having to do the heavy lifting of enrolling them in coverage.
Moncrieff said that idea is not as harebrained as it might appear.
"It's possible that, yes, you could set up a fake portal website that redirects to HealthCare.gov," she said. "It's possible that this could be a very cheap, easy fix."
And even if that solution wasn't legal under the ACA, it could take years of new litigation to resolve that question—which would keep the subsidies flowing, she said.
So one important practical question Halbig raises is this: what makes a state exchange a state exchange? If the view of the 2-1 majority in Halbig were to prevail at the Supreme Court
(a prospect I’d still consider unlikely, because the reading of the statute is so wildly implausible), then what is the minimum a state can do that counts as a “state exchange” for purposes of receiving the federal subsidies?
Can a state pass a statute that says, simply: “We hereby establish a state exchange under ACA Section 1311, to be run by such and such ‘governmental agency or nonprofit,’ which is directed to work with HHS, which in turn will actually administer every aspect of our new state exchange as they have been doing up to now for our existing federal Section 1321 exchange.” Will that work?
It’s hard to see why not. If a state wants to set up an exchange, nothing in the ACA prohibits getting federal help. All the functions the ACA requires of state exchanges—maintaining a website and a hotline, rating health plans, keeping track of who’s enrolled and who’s getting tax credits, etc.—are things that one suspects HHS would be happy to help out with, if asked. Especially with a federal exchange up and running and doing all these things already in the state, why reinvent the wheel?