Administration Responds to City of Chicago’s Lawsuit as America’s COVID-19 Death Toll Surpasses 140K

New Court Filing Makes Clear Admin Lacks Sufficient Rationale for Unlawfully Denying Millions of Uninsured Americans Access to Health Care Amid the Coronavirus Crisis

Washington, D.C. — Late last night, the Trump administration responded for the first time to the City of Chicago’s lawsuit challenging its unlawful refusal to open an Affordable Care Act (ACA) special enrollment period (SEP) in response to COVID-19. The administration’s filing makes clear that it lacks a sufficient rationale for unlawfully denying millions of uninsured Americans access to high-quality, affordable health insurance amid a once-in-a-century pandemic.

To defend its unlawful decision, the Trump administration unconvincingly asserts:

That “a COVID-19 SEP is unwarranted” even though the government’s own records show that health insurers, governors, and experts adamantly disagreed.
  • The Trump administration claims that a universal special enrollment period “is unwarranted at this time” because, among other things, there’s a risk of adverse selection — in which sicker individuals buy health insurance while healthier individuals do not, thereby driving up costs for insurers. But the administration’s newly released Administrative Record shows insurers pushing back on this concern:
    • One insurer noted that “the cost of delaying action and leaving people uninsured seems higher than any adverse selection risk from a SEP.”
    • America’s Health Insurance Plans and Blue Cross Blue Shield made a forceful case for a special enrollment period to be opened and explained that it should be available universally in order to avoid the risk of adverse selection. “Under no circumstances,” they explained, “should the SEP be focused only on those diagnosed with COVID-19 as this would significantly increases [sic] adverse selection.”
  • In March 2020, a Jacksonville-based analyst at Florida Blue, part of the Blue Cross and Blue Shield Association, sent an HHS official “hard facts” about insurance coverage in Florida and made clear his belief that “up to 1.123m Floridians could use the SEP to reconsider their decision not to buy health insurance without worrying about financial hardship.”
  • As has been publicly reported, and as is again made clear in the Administrative Record, a number of Democratic and Republican governors and Members of Congress urged HHS to open a blanket special enrollment period.
That, although 30.7 million Americans are uninsured amid the pandemic, “there is insufficient information that [a blanket] SEP is necessary or justified at this time.”
  • The administration argues that a blanket special enrollment period is unnecessary because SEPs are available for “those who lost their employer-provided coverage as a result of job loss.” But that does not account for individuals who never had employer-based insurance coverage or individuals who were independent or part-time employees who have had sources of income disappear.
  • The Trump administration also falsely asserts that “direct reimbursements for COVID-19 testing and treatment of uninsured individuals” are an adequate replacement for health insurance. The administration’s response comes as it is reportedly pushing for cuts in COVID-19 testing.
  • As the President and CEO of the Alliance of Community Health Plans stated: “The nearly 30 million uninsured Americans and estimated 44 million underinsured should have the ability to enroll in health care coverage during a time of high anxiety and uncertainty. These individuals face two options: go untreated and risk spreading the virus or face unmanageable medical bills.”
That, despite President Trump’s clear opposition to a special enrollment period, the unlawful decision to refuse to reopen ACA exchanges “could change in the future.”
  • Randolph Pate, Deputy Administrator of the Centers for Medicare and Medicaid Services, told the Court that the Trump administration doesn’t currently believe a blanket SEP to cover uninsured Americans amid a raging public health crisis is “an appropriate remedy,” but that HHS “continues to consider whether to offer a COVID-19 SEP in the future.” Any such future change would not give Americans the health insurance they need now.

Background: The lawsuit seeks to ensure the Trump administration follows the law and opens a special enrollment period in response to COVID-19 for the 38 health insurance exchanges operated on HealthCare.gov. The ACA and its implementing regulations require the Trump administration to provide a special enrollment period when consumers face “exceptional circumstances,” like a global pandemic. But President Trump’s administration has refused to reopen enrollment despite calls from a diverse and bipartisan group of stakeholders to do so. The administration has no sound explanation for denying millions of uninsured Americans access to high-quality, affordable health care through a blanket special enrollment period. In fact, news reports make clear that the refusal to open a special enrollment is purely political — driven by President Trump’s personal desire to let the ACA “implode.”

The U.S. House of Representatives and 14 states filed amici briefs in support of the litigation.

When the lawsuit was filed on June 15, more than two million Americans were infected with COVID-19 and over 115,000 had died. Barely five weeks later, more than 3.8 million Americans have been infected and about 140,000 have died. Learn more about the suit here.

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Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.

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