SACRAMENTO – California Attorney General Xavier Becerra and Michigan Attorney General Dana Nessel today led a coalition of 14 attorneys general in filing an amicus brief in support of the City of Chicago’s lawsuit challenging U.S. Health and Human Services (HHS) for failing to create a special enrollment period in response to COVID-19 for individuals in the 38 states that rely on the federal exchange, HealthCare.Gov, for health insurance. Millions of Americans have lost their job as a result of the pandemic. In the amicus brief, the coalition argues that there is both a critical need for and a legal obligation to create a special enrollment period on HealthCare.Gov to help these individuals obtain healthcare coverage. The 12 states that run their own exchanges, including California, have already instituted a special enrollment period in response to COVID-19, and thousands of individuals have benefited as a result.
“As this country faces dueling economic and public health crises, HHS’s refusal to open enrollment on HealthCare.Gov is absolutely unconscionable,” said Attorney General Becerra. “This is a time when we need our leaders to step up. Yet the Trump Administration continues to ignore the realities of millions of Americans who find themselves without healthcare in the midst of a devastating pandemic — once again putting its animosity towards the ACA over people. Enough is enough. It‘s time to protect our communities from having to choose between their health and bankruptcy. It’s time to fight for their right to healthcare coverage.”
The Affordable Care Act (ACA) provides HHS Secretary Alex Azar with the authority to create special enrollment periods outside of the normal enrollment period for hardships or special situations that may warrant it. HHS’s failure to open a special enrollment period means uninsured individuals in the 38 states that rely on the federal exchange for coverage may choose to avoid medical care or face massive bills as a result of seeking treatment. As a result of COVID-19, over 40 million Americans have lost their jobs, but under current regulations, only those Americans who already had health insurance with their job are eligible for a special enrollment period. Those Americans who did not have healthcare coverage through their employer, but experienced job loss, are left with no options.
On April 3, 2020, Attorney General Becerra and North Carolina Attorney General Josh Stein led a coalition of 22 attorneys general in sending a letter to HHS urging it to reconsider its shortsighted decision to deny a special enrollment period on HealthCare.Gov during the pandemic. HHS has also ignored repeated calls from Congress, the healthcare industry, and others to open a special enrollment period.
In the amicus brief, the coalition argues that HHS’s failure to open a special enrollment period violates the Administrative Procedure Act and is contrary to the text of the ACA and its regulations for opening special enrollment periods. The coalition urges the court to find HHS’s inaction unlawful and compel the agency to open a special enrollment period.
Attorneys General Becerra and Nessel are joined by the attorneys general of Connecticut, Delaware, Hawaii, Maryland, Minnesota, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, and the District of Columbia in filing the brief.
A copy of the brief can be found here.