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Herring challenges administration’s refusal to open a special enrollment period on Healthcare.Gov

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Attorney General Mark Herring has joined a coalition of 13 attorneys general in filing an amicus brief in support of the City of Chicago’s lawsuit challenging U.S. Health and Human Services for failing to create a special enrollment period in response to COVID-19.

Hundreds of thousands of Virginians and 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.

“We are living in unprecedented times and the reality is that hundreds of thousands of Virginians have lost their jobs because of COVID-19, which means most of them have also lost their health insurance,” said Herring. “It’s critical that individuals who have lost their health insurance have the ability to get coverage during this time to protect not only themselves but others as well. By not opening a special enrollment period, the Trump Administration is forcing millions of Americans to navigate a deadly pandemic without any kind of health insurance options, potentially leading to even more cases and loss of life.”

The Affordable Care Act 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 the COVID-19 response, 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, Herring joined a coalition of 22 attorneys general in sending a letter to HHS urging it to reconsider its dangerous 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.

Joining Herring in filing this brief are the attorneys general of California, Michigan, Connecticut, Delaware, Hawaii, Maryland, Minnesota, New Mexico, Oregon, Pennsylvania, Rhode Island, and the District of Columbia in filing the brief.

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