In it, but not of it. TPM DC

How The White House Could Still Save Obamacare Even If It Loses In Court

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AP Photo / Jacquelyn Martin

The experts told TPM that the mechanics of how the workaround could be done aren't completely clear, but the crux would be this: States could continue using HealthCare.gov but pass a bill or otherwise indicate that the website functions as their state-based insurance exchange. Creating a website from scratch had been one of the biggest impediments to states creating their own exchanges.

But with HealthCare.gov now built, states could latch onto it as their technical platform and avoid having many of their citizens pay higher premiums because they don't have a state-based exchange.

Joel Ario, a former Health and Human Services official who nows works at Manatt, Phelps and Phillips, told TPM that HHS Secretary Sylvia Mathews Burwell "could make it much easier for a second generation of state exchanges to be established now that the federal government has a viable IT platform for both state and federal exchanges to use."

Ario noted that Oregon and Nevada, two state-based exchanges, planned to connect with HealthCare.gov in 2015 after their own software failures this year.

White House and HHS officials declined to comment on whether any such contingency planning had taken place. But similar solutions were offered by other outside experts.

"I imagine the administration would try to make it as easy as possible for states to set up exchanges, possibly including having the nuts and bolts still operated through HealthCare.gov," Larry Levitt, vice president at the non-partisan Kaiser Family Foundation, told TPM.

"If the ruling were upheld, the Administration is likely to pursue a fix that would circumvent the court decision," Caroline Pearson, vice president at Avalere Health, an independent consulting firm, told TPM by email. "One such scenario would be for HHS to effectively deem all of the exchanges to be state-based, but continue operating them through HealthCare.gov."

Such administrative action might still require some action by the states. They might, for example, have to file some kind of paperwork with HHS, Pearson said. The National Review reported that one health policy expert at Duke University estimated that as many as 20 states would be willing to pass legislation stating that HealthCare.gov functioned as their state exchange.

It's possible these administrative fixes could also be subjected to legal challenges, though Pearson said that a legally permissible way to address the problem probably exists.

However it happens, experts agreed that the 36 states using HealthCare.gov would face significant pressure to do something. As many as 4.7 million people would stand to lose financial help under the law if the subsidies were prohibited.

"With this obstacle removed, pressure would be intense on governors to act to keep tax credits flowing and avoid huge disruption for consumers and providers," Ario told TPM.

About The Author

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Dylan Scott is a reporter for Talking Points Memo. He previously reported for Governing magazine in Washington, D.C., and the Las Vegas Sun. His work has been recognized with a 2013 American Society of Business Publication Editors award for Best Feature Series and a 2010 Associated Press Society of Ohio award for Best Investigative Reporting. He can be reached at dylan@talkingpointsmemo.com.