Maine is one of 36 states where residents could lose subsidies to buy health insurance through the Affordable Care Act if a Washington appeals court ruling last week becomes the law of the land.

Some states are considering immediate fixes to avoid the possiblity of losing the subsidies. Whether Maine will join those efforts to prevent the subsidies from disappearing is unknown, although Gov. Paul LePage’s administration is taking a “wait and see” approach.

Maine is among the states that allowed the federal government to operate its marketplace through healthcare.gov, where families and individuals can shop for health plans and apply for subsidies to help pay for it. Fourteen states established state-run websites where residents could sign up for benefits.

The appeals court ruled that the subsidies created by the federal law, because of wording in the bill, applied only to state-run marketplaces. Some experts say the case could be headed to the U.S. Supreme Court, although others doubt that the nation’s highest court would take the case. Other courts — including a Virginia appeals court that released a decision on July 22, the same day as the Washington decision — ruled that the subsidies were legal in all states.

The rulings have no immediate practical effect, as the Obama administration announced last week that all subsidies would remain in place despite one court ruling against the subsidies.

But some states are making preparations to ensure that residents can keep the subsidies regardless of future court rulings, either by creating state-run marketplaces or by setting up an administrative workaround, according to news reports.

So will Maine create its own marketplace, craft an administrative workaround to protect the subsidies or wait for the court cases to resolve? The answer could depend on the outcome of the November gubernatorial election, when LePage faces Democratic U.S. Rep. Mike Michaud and independent Eliot Cutler.

Meanwhile, an advisory board formed by the Legislature to monitor the health insurance marketplace will examine the issue in the coming months, said Mitchell Stein, a Cumberland health policy consultant who sits on the board.

The subsidies are key to making the insurance bought through the marketplace affordable for low- to middle-income families. The subsidies are available on a sliding scale for families that earn 100 percent to 400 percent of the federal poverty level, or up to about $90,000 for a family of four. Premiums would increase by an average of 78 percent for Mainers who buy through the marketplace if the subsidies were to disappear.

Stein said it’s unlikely that the Washington appeals court ruling would win in the end. It clearly went against common readings of the law that intended for the subsidies to be available everywhere, he said, and it contradicts three other court rulings.

Still, some states are preparing for a “doomsday” scenario by looking into creating a state marketplace from scratch or contracting with the federal government so that that the federal website would qualify as a state program under the law.

He said if a state signed a contract with the federal government to use healthcare.gov for sign-ups and renewals, residents wouldn’t notice the changes.

“It would be a hybrid, but for the consumers there may be nothing different or very little different than the federal marketplace,” Stein said.

Stein said building an entirely new system to sign up for health benefits seems redundant and wasteful now that healthcare.gov is working. Some state-run marketplaces had websites that worked effectively, while others, such as Oregon, were plagued with glitches that continued even after healthcare.gov’s problems were solved late last year. Oregon is reverting to the federal website.

Yet, Oregon state officials maintain that they are a state-run marketplace and not in danger of losing subsidies. Stein said because Oregon and a few other states using healthcare.gov declared themselves a state-run marketplace, the administrative workarounds would pass legal muster.

LePage spokeswoman Adrienne Bennett wrote in an email response to questions that the administration is taking a wait-it-out approach.

“The legal status of portions of the bill (as demonstrated recently) remains unresolved, and there are too many unanswered questions,” she wrote. “Complex technicalities make interpretation challenging, and unknown financial obligations — at a time when we face a fiscal crisis that we have yet to resolve — become extremely burdensome to businesses and families.”

Michaud wrote in an email that the state should look at creating its own marketplace, a position he has held since the Affordable Care Act went into effect in 2010.

“We always have to be prepared for every possible scenario. I’ve always been in favor of Maine creating its own state-run (marketplace) that meets our state’s own unique challenges and demographic needs,” Michaud wrote.

Yet the deadline by which the state could qualify for millions in federal grant dollars to launch its own marketplace is in October, before the gubernatorial election, Stein said.

Cutler told the Press Herald that while he favored creating a state marketplace, he’s leaning toward administrative fixes that still would protect the subsidies.

“We ought to do everything we can to protect Maine people from losing the subsidies. We ought to create a safe harbor,” Cutler said.

Rep. Drew Gattine, D-Westbrook and a member of the health and human services committee, said an administrative fix is an “interesting option” and he would support examining ways to protect the subsidies.

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