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King v. Burwell: Knowns and Unknowns

The Academy Health National Health Policy Conference weighs in on the lawsuit.

Nothing gets a bunch of public health, public policy, and health care economics professionals quite as excited as prediction and speculation on the upcoming Supreme Court case: King v. Burwell.

Source: Tim Sackton (Flickr/CC)

Source: Tim Sackton (Flickr/CC)

At the heart of the lawsuit is whether or not the Affordable Care Act (ACA) permits the IRS to distribute subsidies to individuals in states that did not set up their own health insurance marketplaces. Proponents of the suit point to language in the bill that subsidies shall be distributed to individuals “enrolled in through an exchange established by the State.”

While much has been theorized about the effects of possible SCOTUS rulings, the Academy Health National Health Policy Conference featured a great deal of discussion regarding side effects of the existence of the case itself. In fact, a large proportion of the closing plenary, “Straight Talk on the Priorities and Politics of 2015 Health Policy,” focused on this issue.

Avik Roy of the Manhattan Institute argued that the case has forced conservative lawmakers to create their own health care plans rather than simply oppose the ACA.

Citing polling data that indicates Republicans would largely be blamed if a King decision stops federal subsidies, Roy pointed to several new Obamacare replacement plans. A recent example of this may be the publication of the book “Overcoming Obamacare” by conservative Philip Klein.

At the state level, The Morning Consult’s Michael Ramlet had the most interesting quote of the afternoon when he stated, “The interesting part of King v. Burwell is the mass chaos of preparation leading up to the decision.” Ramlet noted that many states don’t have legislative sessions past June. Hence, when the court’s decision is released, states may be forced into special legislative sessions to quickly address any changes required by the ruling.

Of course, one may contend that it is in states’ best interest to act now to develop contingency plans in the event that King v. Burwell is upheld. This question was asked directly by an audience member to the opening plenary panel featuring several state-level policymakers. However, the answers provided little insight into the development of any such plans.

One panelist summarized the situation best with the quote, “There’s not too much to say. There’s lots of speculation.” Granted, the answers may have been intentionally vague given the circumstances and political realities of disclosing such discussions.

While many panelists throughout the two-day conference offered insight on the various policy and political aspects of King v. Burwell, the consistent theme remained the same: uncertainty. Nearly all panelists admitted that predicting SCOTUS rulings has become increasingly difficult. In addition, while all admitted that a win for the plaintiffs would be disruptive to American insurance markets, the magnitude of the disruption and available policy options will remain unclear until the day the ruling is released.

In the meantime, the policy world would be wise to brace itself for a variety of possibilities and develop a range of potential solutions.

commentary by Kyle Fischer, MD, MPH

Kyle Fischer, MD, MPH
About Kyle Fischer, MD, MPH

Kyle Fischer is a practicing emergency physician in Maryland. He received a combined MD/MPH from the University of Wisconsin School of Medicine and subsequently completed an emergency medicine residency at Drexel University. Dr. Fischer possesses legislative health policy experience in both the Wisconsin and Maryland state legislatures and the United States House of Representatives. Broadly, his interests lie in health system and payment reform, integration of public health measures into emergency care as well as targeted interventions of high-risk populations, particularly victims of violent injury. Of note, he participates as the policy liaison for the National Network of Hospital-Based Violence Intervention Programs. He is currently a health policy fellow in the University of Maryland Department of Emergency Medicine and tweets at @KBFischer. Contact: Website | Facebook | Twitter | Google+ | More Posts