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Attorney General Nessel Files Brief Challenging the Federal Government's Refusal to Open a Special Enrollment Period Online in Response to COVID-19

LANSING – Michigan Attorney General Dana Nessel along with California Attorney General Xavier Becerra has led a coalition of 14 attorneys general in filing an amicus brief supporting the City of Chicago’s lawsuit challenging the U.S. Health and Human Services’ (HHS) failure to create a special enrollment period in response to COVID-19 for individuals in the 38 states that rely on the federal exchange for health insurance. In the brief, filed late Monday, the coalition argues that there is both a critical need for and a legal obligation to create a special enrollment period on the official health care marketplace website to help millions of individuals obtain health care coverage.

“Thirty-eight states, including Michigan, rely on the health care marketplace to run our health care exchanges and while we continue to face an unprecedented public health crisis, the federal government should want to ensure all who live in this country have access to the care they need to mitigate the spread of COVID-19,” said Nessel. “Michigan has been significantly affected by this pandemic, with an unemployment rate that now exceeds 22% and positive cases surpassing the 60,000 mark. It is vital that our residents and all individuals across the 38 federally-run exchanges have access to the coverage they need to keep themselves and those around them safe.”

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 – including front line workers who often lack health insurance and sick leave – 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 health care coverage through their employer, but experienced job loss, are left with no options.

The 12 states that run their own health care exchanges, including California, have already instituted a special enrollment period in response to COVID-19, and thousands of individuals have benefited as a result.

“I am grateful to my colleague, Attorney General Becerra for co-authoring this brief with me. California – a state that runs its own health care exchange – has seen more than 100,000 residents obtain health insurance during their special enrollment period. Although he serves a state that may not face the same challenges, he recognizes this fight is for all who call this nation home – especially with a virus that does not discriminate or consider one’s access to health care before infection,” Nessel added.

On April 3, a coalition including both Nessel and Becerra sent a letter to HHS urging it to reconsider its shortsighted decision to deny a special enrollment period on the health care marketplace website during the pandemic. HHS has also ignored repeated calls from Congress, the health care industry, and others to open a special enrollment period.

In the 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.

The attorneys general of Connecticut, Delaware, the District of Columbia, Hawaii, Maryland, Minnesota, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, and Virginia join the attorneys general of California and Michigan in filing the brief.

A copy of the brief is available here.