“If the Supreme Court upholds the health reform law this summer, states could be forced to a moment-of-truth situation: Do they set up a health insurance exchange, or do they let the feds come in and run theirs?
The problem is that many legislatures could be long gone by the time the Supreme Court has an answer. That leaves special sessions as their main option for sorting out the exchange question — but state lawmakers and those working with these states aren’t hopeful about the chances of calling them in the aftermath of the court’s ruling.
With the court’s decision expected in June, a ruling that upholds most or all of the Affordable Care Act would put states on a tight timeline to assemble an exchange, if they choose to. The Department of Health and Human Services will certify exchanges in January, and enrollment is scheduled to start in October 2013.
A number of states have said they’re waiting on a Supreme Court decision before deciding their exchange fate, but many are expecting legislation to wait until 2013.
For GOP-led states that would prefer to set up their own exchange, their defense is predictable: It’s better than letting in the feds. Still, the politics of federal health reform won’t get any less toxic during an election year, even with Supreme Court approval.
“It’s hard for me to imagine that if something is politically difficult to do today, it is going to become less politically difficult to vote for an exchange … in August or September, when the campaigns are full bore,” said Maine state Rep. Sharon Treat, a Democrat.
Also, calling a special session isn’t something states really like to do. State lawmakers are usually eager to get back to their real-world jobs, and the rare special session could reignite other battles. And the sessions don’t come cheap, either — they can cost taxpayers tens of thousands of dollars per day.
Special sessions “are pretty rare, so I don’t know how often we’re really going to see that,” said a health care consultant who works with states. “I think states are reluctant to. Once you open up a special session, you open yourself up to a lot of things.”
Joy Johnson Wilson, who heads health policy for the National Conference of State Legislatures, said a few states mentioned the possibility of a special session a couple of months ago, but they haven’t said much about it since.
“I’m surprised that anybody even mentioned it,” Wilson said, adding that special sessions are especially rare in an election year.
Even after a court ruling, others skeptical of the ACA say there’s more reason to delay a decision without key exchange rules and guidance from the Obama administration.
“We’re waiting on HHS to provide us additional guidance through federal regulations that make very clear how they expect Obamacare to be implemented in the exchange,” Ohio Lt. Gov. Mary Taylor said in a recent interview.
While states are on an urgent timeline, the Obama administration’s creation of a “conditional approval” for a state’s exchange plan gives the states a bit more breathing room. States can still do their own exchanges if they prove by Jan. 1 that they could be ready in time, but the administration hasn’t revealed much about the standards for meeting conditional approval.”