By Paul Demko, Crain News Service
WASHINGTON (March 10, 2015) — During oral arguments before the U.S. Supreme Court on March 4 in King v. Burwell, Justice Samuel Alito suggested that there is a relatively simple fix to the problem of residents in up to 37 states that haven't established their own exchanges potentially losing access to premium subsidies.
“It's not too late for a state to establish an exchange,” Justice Alito said. “So going forward, there would be no harm.”
Justice Alito is correct in the hypothetical sense. If the Supreme Court strikes down subsidies in states without their own exchanges, those states could remedy the fallout by establishing their own marketplaces. But realistically, the logistical, financial and — perhaps most crucially — political hurdles would so significant that few states seem capable of overcoming them.
The only state with plans to develop its own exchange is Arkansas, but that state's Senate voted unanimously on March 4 to put exchange plans on hold until after the Supreme Court delivers its ruling, expected in June.
At least 11 states have legislation pending to authorize the establishment of an exchange, according to the National Conference of State Legislatures (NCSL). They include Florida, Ohio, Pennsylvania, Texas and Virginia, which combined had roughly 4 million enrollments through HealthCare.gov during the sign-up period that concluded last month.
But that shouldn't suggest that those states are on the verge of establishing their own insurance marketplaces, or even that they would do so if the Supreme Court strikes down subsidies. Three of them — Missouri, Tennessee and Virginia — also are among at least 10 states that have legislation pending that would explicitly prohibit establishment of a state-based exchange, according to the NCSL.