In King v. Burwell, there is a huge emphasis being placed by the government regarding its “intent” to make premium assistance available to all enrollees in Obamacare. But it is argued here that the Affordable Care Act does consider INTENT but that the relevant intent is that of the States.
In my post, TWICE ESTABLISHED? 5 Reasons the Supreme Court Should NOT Uphold Premium Tax Credits for All, http://conoutofconsumer.blogspot.com/2014/12/twice-established-5-reasons-supreme.html, I put forth my belief that based on the language of 1321, which addresses the “FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS,” there are two instances where the federal government steps in and that in the case where a state fails to implement an exchange that it can be deemed to have established (under 1311) and continue to have its residents eligible for premium assistance (under 36B) if it is a state that has taken STATE ACTION under 1321 that renders it an ELECTING STATE under 1321.
Based on the heading of 1321 that provides for failure to establish OR implement, and based on 1321’s continued distinction throughout between states that elect (under 1321 (b) which requires STATE ACTION) and states that do not elect under 1321 (b), it is evident that the ACA considers STATE ACTION as the distinction between a state that is deemed to have established under 1311 thus making its residents eligible for premium assistance.
This distinction between a state that has shown its intent through action and states that have shown intent through inaction is also present in 1311. Under 1311, states that put off taking establishment steps before January 1, 2015 are precluded from obtaining grants under 1311. However, States that did take steps to establish that already received grants are also eligible for renewals of such grants if they are “making progress,” (1311).
Under 1321 entitled, “(c) FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS, it is therefore obvious that in the instance where a state’s efforts have so far been insufficient to implement, that these states did not fail to establish but rather failed to complete the implementation necessary for them to operate their own exchange.
Therefore, although the federal government facilitates state exchanges in the event a State fails to implement, it does not ESTABLISH since there is no provision for TWICE ESTABLISHED under the Act, where a State has established but not implemented the federal government cannot ALSO establish, at most it can operate and implement under 1321.
There is no “punishment” of states that don’t choose to take any action but there are in the provisions of 1311 and 1321 different treatments of those states depending on the state INTENT gleaned from the States’ action or inaction.
All the States have the same option of taking steps or not under the ACA. If they don’t, they are not “punished” by losing the opportunity to take steps to establish, this does not appear in the Act, but they are ineligible for the grants described in 1311. They can still choose to ESTABLISH.
This is consistent with the text of 36B and its limiting language, specifically describing when premium assistance is available which does not punish individuals who don’t qualify for premium assistance but instead clarifies the conditions that must be met to obtain premium assistance, one of them being that individuals enroll in an “…Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act,” (36B). All individuals have the same opportunity to obtain premium assistance IF they meet the criteria listed in 36B, including enrollment in and “Exchange established by the State under 1311…”
If in the future individuals who are not currently eligible for premium assistance experience life changes that bring them within the criteria established for eligibility for such premium assistance, including if their State chooses to take steps to establish an Exchange under 1311, one of the criterion of 36B, then they can obtain premium assistance.
This is the consistent reading of the provisions of 1311, 1321 and 36B. Again, 36B does not prevent States from having an Exchange established under 1311 at some time in the future if they choose to do so. The option to establish is open to all States, and then the provisions of 36B, specifically the availability of premium tax credits to residents in States with an Exchange established under 1311 of the Act, would also be available to enrollees in Obamacare plans who meet the other criteria.
The money provisions of 36B, in terms of availability of premium assistance, provide for the circumstances as to when the premium assistance is available they do NOT bar any individual from enrolling through an Exchange who is not eligible for premium tax credits. Throughout the government’s publications and the text of the Act, premium assistance is not guaranteed but is a “maybe” that is available to some individuals who meet all the criteria laid out by the Affordable Care Act. It is specifically NOT required for enrollment through an Exchange in an Obamacare plan.
There was never any language that indicated that “EVERYONE WHO ENROLLED” was to be eligible for premium tax credits because there were always conditions as to WHO was eligible. Whether or not an individual lives in a State that established or not under 1311 of the Act is simply another condition that must be met for the availability of such premium assistance.
Conversely, by expanding eligibility for premium assistance to all enrollees, the IRS not only did not follow its own 36B, but undercuts the provisions of the ACA that are very clear that STATE ACTION is used to determine STATE INTENT regarding establishment of an Exchange and that where there is NO ACTION taken States will have a different experience of the Affordable Care Act from States that do take Action.
Arguing that all enrollees should have access to premium tax assistance regardless of one of the conditions laid out by the IRS in 36B as a requirement for such eligibility is an unfair broadening of who can get such premium assistance which would certainly indicate that other limitations as to who or how much an individual can get in premium assistance under the provisions of 36B should also be negotiable by individuals who are ineligible for premium assistance.
Further, by permitting all enrollees to be treated similarly whether they enroll via an Exchange in a State that has not established or a State that has established the IRS would render virtually meaningless the provisions of the Act prescribing requirements for an Exchange, flexibility accorded the States in establishing their Exchange and would support INACTION by the States, exactly the opposite of what the ACA does. This was never intended by the Act that provides for federal action as a last resort when a state has failed to establish or implement.
Such an interpretation that there must be NO DIFFERENCE between a State Exchange and a federally facilitated Exchange would not only overlook the clear distinctions placed between the two in the Act, and the preference for the former through a commitment of federal funds, federal assistance, and federal flexibility but might very well discourage States that have already taken some action from pursuing the completion of the implementation of their Exchange.
Although a ruling against the government in King v. Burwell would increase the number of people who could not “afford” health insurance and therefore would be exempt from the individual mandate in States that did not elect, did not take action and did not establish (because the amount individuals pay for health insurance to calculate its affordability is reduced by premium assistance provided by the government), this is insufficient reason to permit the IRS interpretation of its own provision against the language and other provisions of the ACA.
Even with the increased number of individuals who would not be eligible for premium assistance, individuals could still use their federally facilitated exchange to enroll in an Obamacare plan. Premium assistance is not tied to the right to do so. Currently 15% of enrollees receive no premium assistance. There is nothing to stop residents in non-electing, non-establishing States from enrolling in an Obamacare plan, the same as the 15% of Obamacare enrollees currently who do not receive premium assistance.
There is a difference incorporated throughout the Act in terms of the treatment that States that show their INTENT to establish through actions taken in accordance with 1321 as electing States and those States that show their INTENT to take no action and are not electing under 1321. All States have the option of choosing which type of State they are.
Instead of arguing what the government INTENDED, we should be looking at the way the Affordable Care Act treats States depending on their INTENT as evidenced through their ACTION or INACTION.
