Maine Takes Steps Towards Becoming First State to Legislate Back-up Plan for King v. Burwell

As we get closer to a decision on King v. Burwell, attention is turning to the 34 states without a state-based exchange.   To date Maine has come closest to enacting a law, in the event of a decision for the plaintiff, with LD 1344, “An Act to Protect Maine Consumers in the Individual Health Insurance Market and Support Maine’s Economy”. Currently awaiting a final vote in the Senate, the bill allows the state to establish a state-based health insurance exchange should the U.S. Supreme Court strike down the ability for the Federally Facilitated Marketplace (FFM) to continue to provide subsidies to the 75,000 Mainers who rely on it for assistance in paying premium and cost sharing expenses.

The bill, which passed the House with strong bipartisan support authorizes Maine to partner with the federal marketplace and includes an automatic sunset provision to eliminate the law, should the Court rule in favor of the government and allow the FFM to continue to provide subsidies.

While Maine has come the closest to passing legislation that would allow for the creation of a state-based exchange in anticipation of the Supreme Court’s decision, 10 other states considered bills to do so this session and nine sought legislation to prohibit the state from taking such action. Bills to prohibit the creation of a state-based exchange have become law in both Arkansas and Arizona. In Pennsylvania, Governor Wolf has applied to the federal government seeking a contingency plan, should the Supreme Court rule for the plaintiff. Delaware has also recently submitted a plan to develop a state-supported marketplace and preserve marketplace subsidies. A State Refor(u)m chart outlines state legislative activity surrounding exchanges. In an issue brief earlier this year, NASHP identified considerations and policy options for states pending the outcome of King v. Burwell. A decision from the Court is expected later this month.