Could North Carolina circumvent King v Burwell?

Adam Linker has an op-ed this morning in the News and Observer encouraging the North Carolina General Assembly and the Governor to:

re-establish(ing) state control over our insurance marketplace. In fact, most of the pieces are already in place. Our Department of Insurance is proactive about reviewing insurance policies. Our health care and insurance communities meet regularly and could easily form an oversight board. Our outreach and enrollment efforts are national models. All we need is for the governor to work with legislators to vest these organizations with the power to form a state marketplace.

I wrote a post last summer asking what does it mean for a state to establish an exchange with respect to the looming Supreme Court case that will determine if tax credits (515,000 North Carolinians have just signed up for coverage and are getting such subsidies) can legally flow to states using the federally facilitated exchange. My post is wonky and complicated, but health policy is wonky and complicated and runs through the various ways that States could move forward on a state-specific exchange.

However, I am less certain now than I was last summer that North Carolina could do something in the short run to definitely make the tax credits flowing to our state safe regardless of what the Supreme Court rules (there isn’t enough time to set up all the functions). It is unclear if a simple statement of establishing an exchange and then pointing to healthcare.gov for people to shop for coverage would be enough, in large part because of the uncertainty of what the Supreme Court may say (I know no one who predicted the mix of what they said in 2012). The North Carolina Attorney General Roy Cooper has already signed onto an amicus brief that argues that the actions taken by the State to use the federal exchange was made under the belief that the citizens of North Carolina would be able to receive such tax credits.

Even a simple statement of the intent of the North Carolina General Assembly to have the tax credits flow to our citizens with which to purchase private health insurance could prove important, and certainly wouldn’t hurt anything, if our leaders are worried about over half a million North Carolinians losing these tax credits.

About Don Taylor
Professor of Public Policy at Duke University (with appointments in Business, Nursing, Community and Family Medicine, and the Duke Clinical Research Institute). I am one of the founding faculty of the Margolis Center for Health Policy, and currently serve as Chair of Duke's University Priorities Committee (UPC). My research focuses on improving care for persons who are dying, and I am co-PI of a CMMI award in Community Based Palliative Care. I teach both undergrads and grad students at Duke. On twitter @donaldhtaylorjr

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