The Patient Protection and Affordable Care Act (the “Act”) calls for the establishment by 2014 of “American Health Benefit Exchanges” (or, simply, “exchanges”), the principal purpose of which is to provide eligible individuals and small businesses with access to affordable health insurance under “Qualified Health Plans” (“QHPs”). Individuals will only be eligible to enroll in an exchange plan if they are not enrolled in Medicare, Medicaid, or other acceptable employer coverage as a full time employee, and certain low-income individuals may qualify for a tax credit toward their premium costs and cost-sharing subsidies that will be available only through an exchange. Small businesses will be able to provide their employees with access to QHPs through one or more Small Business Health Options Program (SHOP) exchanges, which may be combined with, or operated independently from, other exchanges.

As envisioned by the Act, States may — but they are not required to — establish one or more “state-based exchanges.” Where a state declines to do so, the Act directs the Department of Health and Human Services (HHS) to establish and operate a “federally-facilitated exchange.” Alternatively, a state may elect to administer and operate certain exchange-related activities associated with plan management and/or consumer assistance under a “state partnership exchange.” With respect to state partnership exchanges, however, HHS has observed that...