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Attorney General William Tong

06/22/2020

Attorney General Tong Files Brief Challenging the Trump Administration’s Refusal to Open a Special Enrollment Period on HealthCare.Gov in Response to COVID-19

(Hartford, CT) – Attorney General William Tong joined a coalition of 14 attorneys general filing an amicus brief in support of the City of Chicago’s lawsuit challenging U.S. Health and Human Services (HHS) refusal 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 American have lost their jobs 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 Connecticut, have already instituted a special enrollment period in response to COVID-19, and thousands of individuals have benefited as a result.

Connecticut’s Access Health CT exchange held a special enrollment period in response to COVID-19. During Access Health CT’s special enrollment period between March 19 and April 17, 5,629 people enrolled in private plans and 26,773 enrolled in Medicaid.

“The ACA explicitly grants HHS the authority to create special enrollment periods under extenuating circumstances. A global pandemic not only warrants, but requires, such an enrollment period. We need to be doing everything we can to ensure each and every person has access to health care right now,” said Attorney General Tong. “Connecticut’s open enrollment period helped thousands of people access health insurance, and people in every state deserve that same opportunity.”

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 seeking necessary health 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 Tong joined 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.

Attorney General Tong joins the attorneys general of California, Michigan, Delaware, District of Columbia, Hawaii, Maryland, Minnesota, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, and Virginia.

A copy of the brief can be found here.
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