Among the 36 states, the level of federal involvement varies. That means states see gray areas to work with, if they want to, though the ultimate decision about their status would likely hinge on additional court decisions and determinations by the Obama administration.
For example, two states, Idaho and New Mexico, had intended to set up their own exchanges but turned to the federal government to handle their technology in May 2013. The Obama administration has described them as "federally supported state-based" exchanges and often issues data on their behalf, in which it groups them with the other 34 states with "federally facilitated" exchanges.
Two other states, Nevada and Oregon, are currently considered to be among the 14 "state-based" exchanges, but have had technological problems and are now looking to the U.S. to operate their technology for the coming year.
Idaho, Nevada and Oregon have issued statements in recent days saying they are state-based exchanges, regardless of who operates their technology. New Mexico didn't respond to inquiries.