Health chief Burwell hints at planning for ObamaCare decision

Secretary of Health and Human Services Sylvia Mathews Burwell on Wednesday hinted at the administration’s planning for the looming ObamaCare Supreme Court case. 

In previous testimony before Congress, Burwell had repeatedly declined to discuss any administration plan for King v. Burwell, which could invalidate subsidies that help 6.4 million people afford insurance in roughly three dozen states using the law’s federal exchange.

{mosads}But Burwell said Wednesday before the House Ways and Means Committee that the administration would do “everything we can” to deal with the fallout from a ruling against the law.

“We’ll do everything we can, we’re working to make sure we are ready to communicate to the states and do everything we can,” Burwell said. 

Still, Burwell emphasized that most of the solution would lie with Congress and the states, because only they could restore the subsidies if the Supreme Court ruled that they cannot be distributed through the federal exchange.

“The critical decisions will sit with the Congress and states and governors to determine if those subsidies are available,” she said.

Burwell’s comments came on the heels of an interview she gave last week to The Wall Street Journal, where she pointed to states like Nevada that rely on the federal IT system for their exchanges already. 

Should the high court rule against the law, one option for the administration would be partnerships between the federal government and states that set up their own exchange to keep subsidies flowing to their residents.

HHS spokesman Kevin Griffis said Wednesday that HHS has already been in touch with Pennsylvania and Delaware, two states that have signaled they will seek to set up their own exchanges, while still partially relying on the federal government’s capabilities, if the court strikes down the federal subsidies.

Griffis said HHS is in contact with states “all the time” and is also preparing to communicate with consumers about the effects of a ruling once it is announced. 

The high court case is likely to set off a pitched political battle in Washington, should the justices strike a blow to the law.

President Obama this week made the case that Congress could resolve any issues stemming from the case by passing a one-sentence bill restoring the subsidies. 

“A, I’m optimistic that the Supreme Court will play it straight when it comes to the interpretation,” Obama said at a press conference Monday. “And, B, I should mention that if it didn’t, Congress could fix this whole thing with a one-sentence provision.”

Sen. John Barrasso (R-Wyo.), who leads the Senate Republican planning effort for the decision, immediately ruled out that option, calling it a “fake fix.”

The option of states working with the administration on a joint exchange also faces a hurdle in Republican-run states. Some Republican governors have already ruled out action on their end, and others have not made clear how willing they would be to work with the administration on an exchange. 

“My hunch is if a state wants to play ball, at least as a stopgap, that HHS may find a way to make it happen,” said Mike Adelberg, who was a senior official in the administration’s Centers for Medicare and Medicaid Services until three months ago, and is now a consultant at FaegreBD. “If a state doesn’t want to play ball, then there’s probably very little that can be done for the consumers in that state.”

Caroline Pearson, vice president at Avalere Health, a consulting firm, said that the states working with the Obama administration on an exchange is “probably operationally the only scenario that allows subsidies to continue without disruption.”

But it is unclear whether the court’s ruling will address how much the federal government can help before the exchange would no longer be considered a state-based exchange. 

“Legally whether that’s permissible is going to depend on the specificity of the ruling,” Pearson said.