- Timing. When do states have to decide to opt-out? The expansion is 1/1/2014, but a lot a planning is required.
- Scope. What are they opting out of? Title II of the ACA? Just the expansion of nondisabled adults to 133% FPL? Can they accept the enhanced reimbursement levels in Medicaid primary care (rising to Medicare levels) while rejecting the rest? Roberts didn’t give these details.
- Changes. Can a state opt out now and change later, or the other way around?
- The new donut hole: in opt out states, citizens under 100% FPL can’t qualify for refundable tax credits for coverage under a qualified health plan in the exchanges. So a new donut hole is created: desperately poor parents are covered (in Texas, up to 26% of FPL), then the ever so slightly less poor are not covered (in Texas, 26% – 99% FPL), then tax credits in the exchanges can kick in above 100%.
- Legal immigrants get the donut, not the hole. The ACA assumed citizens under 100% FPL would have Medicaid, but did not assume that for legal immigrants. So legal immigrants under 100% FPL excluded from Medicaid due to their alien status escape the new donut hole, and are eligible for the exchange subsidies even if below 100% FPL.
Full employment for health care lawyers. See also Austin’s Medicaid questions.
The best discussion of the Red state opt out in the amicus briefs was the Health Law & Policy Scholars brief for 11-400. I was counsel of record. Start on p.23, but esp. pp. 38-42.