Republicans weigh alternatives if high court rejects federal health care

June 05--Sometime this month, the U.S. Supreme Court is expected to hand down a decision that could affect how tens of thousands of West Virginians pay for health insurance and is already putting Republican leaders in political spin mode.

A ruling in King v. Burwell, mostly likely to come during the last days of June, has the marbled halls and spacious offices on Capitol Hill filled with a number of viewpoints about what should happen if the high court decides to halt the tax credit section of the Affordable Care Act for workers who purchased insurance on the federal market exchange.

The court must decide if seven words -- "through an exchange established by the state" -- buried in nearly 1,000 pages voids the federal government from providing tax subsidies to employed individuals.

If the Supreme Court rules against the tax credits, tens of thousands of West Virginians could suddenly find themselves uninsured. Depending on who is asked, the number varies between 30,000 to 49,000. In West Virginia's 3rd Congressional District approximately 12,000 currently insured workers will lose $59 million in tax credits, according to the U.S. House Committee on Energy and Commerce minority report.

The ACA tax subsidy saves working West Virginians an average of more than $2,700 annually, said Perry Bryant, founder of West Virginians for Affordable Health Care.

Nationwide, the decision will affect working people in 34 states who receive subsidized insurance coverage under the act. The latest figures show nearly 11.7 million people signed up for the ACA. Of those, 6.4 million rely on the subsidy, according to data released Tuesday by the Center on Medicare and Medicaid Services.

If the justices decides the tax subsides are unlawful it could have a domino effect on the law. The first domino knocked down could make other parts of the ACA unworkable. That would knock the second domino down by causing other parts of the law to quickly unravel. The final domino would be health insurance becoming too costly for millions of working Americans.

When more moderate GOP members realized that could happen, their staffs quickly went to work on a strategy to keep millions of workers -- mainly low and middle income earners -- insured.

So after trying to kill the ACA 56 times in five years, Republicans are now divided on a strategy of how to handle the possible fallout if the court rules against the tax credits.

The two front-running ideas are kill the entire act now, favored by the more hardline GOP members, and an 18-month extension while Congress works on an alternative so millions of workers will not lose their health coverage. The latter option, lawmakers said, would give them time to enact broad overhauls to the 2010 law and has the backing of GOP members in both chambers.

To counter GOP hardliners, Democrats are pointing out to a number of reports finding the ACA is beneficial to working Americans, including studies conducted by the politically neutral American Academy of Actuaries, the folks who decide insurance rates.

"Eliminating subsidies in (federally facilitated marketplaces), states would have enormous consequences for insurance enrollment, premiums, and the viability of health insurance markets," writes Catherine Murphy-Barron, vice president of the Academy's Health Practice Council. "Policymakers should understand the implications of any policy proposal intending to address the disruption caused by the potential loss of subsidies. Of central concern, a viable health insurance system must attract a broad cross-section of risks and operate as a level playing field."

Another analysis by the AAA showed insurance premiums would spike if tax credits were eliminated and a short extension would only delay the impact.

"This analysis shows yet again when it comes to our health care system, Republican policy is to put politics first -- ahead of families who would lose access to affordable health care coverage and the face higher premiums and uncertainty under Republican proposals," Sen. Patty Murray, D-Wash., said in a statement.

Centrist GOP House members are supporting the extension. "We really need a thoughtful soft landing, an off-ramp solution" that will give the Republicans time for a shift to a more moderate health care plan, Martha McSally, an Arizona Republican, told The Wall Street Journal. "We don't need the whole thing blowing up on our watch."

Sen. Shelly Moore Capito, R-W.Va, continues to favor repealing the ACA, said Ashley Berrang, the senator's spokesperson, and replace it with an more affordable alternative.

"If the Supreme Court rules that the current subsidies are in violation of the law, (Senator Capito) does not want to see people currently on exchange plans lose access to health care and will consider an interim plan to protect that access," Berrang said.

Rep. Evan Jenkins, R-W.Va., is hoping for a third option, and directions on how to proceed from the Supreme Court if the justices deem the subsides illegal. Jenkins said the court's ruling could offer guidelines on when the subsidies expire.

It's not uncommon for the high court to set deadlines when deciding controversial cases, although at times it is a bit ambiguous, such as the court's Brown v. Board of Education's ruling that desegregation of schools should proceed "with all deliberate speed."

Both Capito and Jenkins said the ACA is a hindrance to million of Americans. They say it forced people off their previous health care policies, reduced choices and increased costs for individuals and small business.

If the Supreme Court decided to end the tax subsidies, Capito "will also work with her colleagues on long-term reform that results in better quality, more affordable health care," said Berrang.

On a recent episode of Decision Makers, Gov. Earl Ray Tomblin said the upcoming Supreme Court ruling could have an affect on more than 33,000 West Virginians -- 85 percent of whom receive the tax subsidies -- who have signed up for health insurance via the federal exchange.

During the show he said Insurance Commissioner Michael D. Riley is investigating what will happen to the 33,000 West Virginians if the Supreme Court makes an adverse decision against the health care act.

Tomblin, a Democrat, explained he made the decision not to start a state exchange because based on the low number of people who are eligible to join it was not financially feasible.

"We made a decision on what the IRS said the rules would be if our people would be eligible if we did a partnership with the federal government. And that is the reason we made the decision at the time," he said

While politicians wonder which way the justices will go, Bryant, of West Virginians for Affordable Health Care, believes the final decision will favor the ACA.

The court, he believes, will look beyond the seven words on which the plaintiffs argued their case. He believes the justices will look at the broader reading of the law. "I think the decision will be based on the law, not politics," Bryant said. "Also, in the past, the court has given deference to agencies when a law is ambiguous."

If the court does rule against the ACA and Congress approves an 18-month extension, West Virginia, he said, will struggle.

During that time, he said, West Virginia must build a website, set up a call center, create policies, hire professionals and more.

Eighteen months, Bryant said, is the shortest time in which setting up a state insurance exchange could be done.

Email: [email protected]; follow on Twitter @DanTysonRH

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