In 2012 the Supreme Court ruled on a series of cases, cumulatively decided as Florida, et al., v. Department of Health and Social Services and concluded that the ACA was a tax and thus was constitutional. At that time Obamacare supporters were very happy and Obamacare opponents were furious with the Supreme Court for twisting their logic like a pretzel to find the ACA constitutional as a “tax”.
Fast-forward three years later and another case is being heard in front of the Supreme Court, and this one too could derail the ACA. A series of cases known collectively as King v. Burwell is being decided in the Supreme Court to determine whether the language of the Patient Protection and Affordable Care Act of 2010 allows the federally-run health insurance exchanges in the 34 states which are letting the federal government build exchanges to offer federal taxpayer subsidies. In the ACA it specifically says that only states who set up their own health insurance exchange for those who cant get health insurance from their employer or the government are eligible to offer taxpayer subsidies to the new enrollees. In addition to the subsidies, the Court could find both the employer and individual mandate are unconstitutional in those 34 states which dont have a state-run exchange. (see sources below)
If the Supreme Court rules in favor of the plaintiffs, this could eliminate Delawares health insurance exchange program at Choosehealthde.com. Delaware has a hybrid federal-state partnership to run the program but the exchange itself is federally-run. Further complicating matters was the states decision to expand Medicaid availability to those at or below 138% of the federal poverty level happened before the PPACA was signed, so legally Delaware is not eligible to receive federal subsidy support for the "new" access to Medicaid currently being offered.
I think Delawares best bet may be to take the $35 million grant they received from the federal government to bring "healthcare innovation" to Delaware and use that money instead to set up a state exchange. The problem with this though is the inevitable end result, which will expand government control over healthcare and move us further towards a socialized single-payer system. In the long run we would like to see ACA repealed and replaced with a series of reforms including tort reform and Health Savings Accounts, but in the short term thats not going to help Delaware help ensure all people can afford healthcare. We have an interesting Petrie Dish experiment here in Delaware.
The big decision will come this June. assuming the Supreme Court rules on the literal interpretation of the law, Delaware will lose its federal subsidy funding. I hope we can start a conversation before then to find the best ways to help all Delawareans get access to healthcare without increasing government control over the private sector.
Chris Casscells, M.D.
Director, Center for Healthcare Policy
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