The Supreme Court is expected to hand down a ruling in King v. Burwell sometime before the end of the month, but the Court’s policy of strict secrecy means that no one but the justices are sure exactly when the ruling will be announced. According to the Supreme Court online calendar, the court is currently scheduled to issue orders and opinions on Thursday, June 25; Friday, June 26; and Monday, June 29.
At issue in King v. Burwell is a glitch in the wording of the Affordable Care Act (ACA) that might be interpreted to mean that subsidies should not be available to customers of the federal Healthcare.gov insurance exchange. The majority of states opted not to establish a state insurance exchange, choosing instead to use the federally-facilitated Healthcare.gov; about six million consumers purchased subsidized insurance for 2015 through the federal exchange, with each enrollee receiving an average subsidy of about $272 per month.
Both sides argued their case in front of the Supreme Court on March 4, and the arguments were followed by a flurry of media speculation about the ruling and its potential impact on individual consumers, the individual insurance market and the insurance industry as a whole. As employers, consumers and insurance companies begin to prepare for 2016 open enrollment, the instability caused by a ruling against federal subsidies might affect far more people than just those consumers losing subsidies. The justices have been characteristically tight-lipped about the outcome of the case.
Politicians and policy makers on both sides of the aisle are debating what can be done if federal subsidies are struck down. Some propose extending subsidies for a limited period of time, others say amending the relevant passage in the Affordable Care Act may be possible and another school of thought favors attempting to repeal the ACA altogether in the wake of the ruling. A ruling against federal subsidies alone would not touch other provisions of the ACA, such as the individual mandate, employer mandate or ban on pre-existing condition exclusions. Regardless of the ruling, employers should keep an eye out for further changes to the ACA.
The Supreme Court is also expected to announce a ruling this month in Obergefell v. Hodges, the same-sex marriage case. If the courts rule that states cannot ban same-sex marriage, employers should examine employee benefit structures and employee policies. Summary Plan Descriptions and other documents may need to be rewritten to reflect the inclusion of same-sex legally married spouses. Additionally, employers may want to weigh the pros and cons of offering domestic partner benefits for unmarried partners, taking into consideration all state and local laws.