By Maggie Fox, NBC News
Updated at 5:50 p.m. ET, Nov. 9: There's nothing like a deadline to focus the mind and states have a good one coming up next week - they have to decide if they're going to run their own health insurance marketplaces, called exchanges, or have the federal government do it for them.
But they got a little break late Friday -- if they do decide to run their own exchanges, they'll have until December 14 to submit their plans to the federal government.
It's a big decision and a big responsibility. One of the main goals of the 2010 health reform law is to get more people covered by health insurance, so they can get medical care when they need it, and so they get care earlier, before easy-to-treat conditions like high blood pressure can cause expensive strokes or heart attacks.
The exchanges - think Travelocity for health insurance - will provide a mechanism for more people to buy insurance. They're supposed to provide a side-by-side comparison on price, what's covered and how much you might have to pay out of pocket for a doctor's visit. They'll also be a route for people to get a little extra cash from the federal government to buy insurance; the health care law provides for a generous federal subsidy for many, if not most, buyers.
The states had two good excuses this year to procrastinate on exchanges. First of all, there were three major challenges to the law that went all the way to the Supreme Court. Many governors and state legislators were gambling that the Supreme Court would declare the law unconstitutional. It didn't. Now the Nov. 16 deadline looms.
"This deadline is smoking the states out," says Dan Mendelson of consultants Avalere Health.
But Health and Human Services Secretary Kathleen Sebelius softened the deadline a bit late on Friday. "The deadline for a Declaration letter for a State-based exchange remains Friday, November 16, 2012," she wrote in a letter to governors. "However, today, in order to continue to provide you with appropriate technical support if you are pursuing a State-based exchange, HHS is extending the deadline for State-based Exchange Blueprint application submissions to Friday, December 14, 2012."
When it ruled in June, the Supreme Court said states could decide whether to offer Medicaid - the state-federal health insurance plan for the low-income - to more people. But the rest of the law stood, including the exchanges requirement. Still, there was another possible way out - the election.
Republicans promised that they'd repeal the entire health reform law if they won in this week's election. Now that Mitt Romney has lost to President Barack Obama and the Democrats have kept their control of the Senate, any chance of killing the Affordable Care Act is now dead.
"Obamacare is the law of the land," House Speaker John Boehner said in an interview with ABC News on Thursday.
So far, only 13 states and Washington, D.C. have said they'll build a health insurance exchange. Eight have said they absolutely will not, and 25 states have been sitting on the fence, says Kelly Barnes, U.S. health industries leader at PricewaterhouseCoopers.
"My administration will not partner with the federal government to create a state-federal partnership insurance exchange because we will not benefit from it and implementing it could cost Kansas taxpayers millions of dollars," Kansas Governor Sam Brownback said in a statement Thursday.
Some groups are also urging governors to defy HHS. "States can and do have the power to reject federal attempts to compel their action. Governors should use that power to tell the federal government 'no'," Nicole Kaeding of the group Americans for Prosperity said in a letter sent Friday. "By creating an exchange, states will serve as de-facto administrators of the federal government implementing its rules, regulations, and mandates."
States that don't set up their exchanges will have to submit to what the federal government does for them.
Avalere predicts 20 states will be ready to run their own exchanges when the bulk of the health reform law takes effect on Jan. 1, 2014. "The consumer will have access to an exchange by 2014," Mendelson said. "One way or another, this administration has to make sure that everyone who wants to purchase insurance can."
To make sure that people don't wait until they are sick to buy health insurance, the 2010 health reform law provides for fines on a sliding scale for people who don't buy. And people who want to switch from their employer's insurance can.
States may have been hoping to escape the looming responsibility, but that doesn't mean they have been doing nothing. "I think there are more contingency plans out there than probably people have declared," Barnes said. "A state like California, that has been planning all along, will have a higher level of organization."
Waiting on the rules
Some Republican governors have done a fair bit of planning, including Bob McDonnell of Virginia and New Jersey's Chris Christie. But many want the Health and Human Services Department to give them the rules for the exchanges, and to spell out what a federally run exchange would look like.
That would help them choose. Many have also asked if they can do a hybrid, with the state running part and the federal government running part of the exchange.
The federal government hasn't published those rules. They are currently awaiting approval at the Office of Management and Budget. "We intend to issue further guidance to assist you in the very near future," Sebelius wrote the governors."This administration is committed to providing significant flexibility for building a marketplace that best meets your state's needs," Sebelius added.
"It's driving the insurance companies crazy to not have any clarity about what they need to be offering in the exchanges," Mendelson said. "Having said that, when push comes to shove, the insurers want to be offering products in the exchanges. They will rise to the challenge." After all, the exchanges could mean more than 20 million new customers for insurance companies.
Right now, about 48 million Americans are going without health insurance, according to the Census Bureau. That's more than 15 percent of the population.
About 55 percent of Americans are covered through an employer; 31 percent have a public insurance plan such as Medicare or Medicaid, and 10 percent buy their own health insurance.
23 million likely will get insurance through exchanges
The Congressional Budget Office predicts that 23 million people who don't have health insurance now will get it on one of the exchanges. More than 18 million of them will qualify for a federal subsidy averaging $6,000 a year per person. People earning up to four times the federal poverty level can get a subsidy: that's an income of $92,000 a year for a family of four.
But it's going to be confusing, especially for people who have never had to wrangle with an employer's open enrollment process before. "If you have had employer-sponsored insurance, at least you are familiar with the terms," said Barnes. "But there is also a big tranche of buyers who have never had access to insurance before. It's a less sophisticated consumer."
Many people will go for bare-bones coverage, Barnes predicts. "Price is going to be the first selector in this round," she said. "When all else fails, you buy on price."
Some people who now have employer-covered insurance are doing that anyway. There's a clear trend for employers to offer less, and to require their employees to pay a bigger share of their health insurance coverage. "It is definitely true that employers are paying for less and less," Mendelson says.
"They are increasing co-pays and making it expensive for patients to use medical services. But even with those trends, the benefits available in the exchange are likely to be less generous and less robust than what employers offer today."
Nonetheless, Mendelson says the exchanges will set the standards going forward. "These are going to be solid commercial insurance products offered by leading health insurance companies," he said. "They are widely seen as the future."
It will pay, he said, for the companies to make it easy to understand what they're offering for sale on the exchanges.