Yes, It’s Legal for the Obama Administration to Create a Special Enrollment Period for Obamacare
Melissa Quinn /
The Obama administration is exploring whether to add a special enrollment period under Obamacare for those who are unaware of the fine for not having insurance.
However, following a long list of unilateral changes the White House has made to the law since its inception, some are questioning whether the administration has the legal authority to do so.
The law grants the Department of Health and Human Services secretary the authority to create special enrollment periods in “exceptional” circumstances, Timothy Jost, a professor at the Washington and Lee University School of Law, told The Daily Signal.
“The discretion of the secretary is almost unlimited to determine when there are special circumstances,” he said.
“The discretion of the [HHS] secretary is almost unlimited to determine when there are special circumstances,” said Washington and Lee University law professor Terry Jost.
Jost said such power has been exercised several times by both the George W. Bush administration with enrollment in Medicare Part D and the Obama administration with the Affordable Care Act.
But, he noted that Congress could pass legislation arguing the creation of this special enrollment period doesn’t qualify as an “exceptional circumstance.”
HHS Secretary Sylvia Mathews Burwell (Photo: Michael Reynolds/EPA/Newscom)
HHS Secretary Sylvia Mathews Burwell is debating whether to add a grace period to assist those who may not know they are required to pay a fine for not having health insurance. The window to enroll in health insurance under the Affordable Care Act ended Sunday, and the administration announced Monday that 11.4 million Americans have signed up for insurance so far.
>>> How One Nebraska Woman Lost Her Health Insurance Three Times Under Obamacare
“We’re going to analyze it. We’re going to think about it, and we’ll be back,” Burwell said Wednesday. “What we will try to do is focus deeply on the issue of the customer.”
She is expected to announce her decision within the next two weeks.
Burwell is under pressure from a group of Senate Democrats who sent her a letter asking to “allow certain individuals who were uninsured in 2014 another chance to enroll in 2015 health coverage.”
“Such a special enrollment period would increase coverage in affordable private health insurance and reduce the costs that the uninsured pass along to the insured,” the letter reads.
Led by Sen. Tammy Baldwin of Wisconsin, the Democrats who signed the message are: Sens. Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, Jon Tester of Montana, Claire McCaskill of Missouri, Jeanne Shaheen of New Hampshire, Angus King of Maine, Mazie Hirono of Hawaii, Mark Warner of Virginia, Chuck Schumer of New York and Debbie Stabenow of Michigan.
Americans must report for the first time this tax season whether they had health insurance in 2014. Those who do not face a penalty of $95 per adult or 1 percent of their annual household income. The Obama administration estimates approximately 6 million Americans will be forced to pay the fine this year.
Those who do not purchase health insurance in 2015 face a higher penalty next year during filing season: $325 per adult or 2 percent of their household income. The fines continue to increase each year.
The administration is allowing consumers who had technological issues with HealthCare.gov an additional week to purchase health insurance.
Photo: Newscom
Two states—Minnesota and Washington—added grace periods for residents to sign up for Obamacare through April, when filing season ends.
“This is the first year that residents may incur a tax penalty for not having health insurance under the Affordable Care Act,” Richard Onizuka, head of the Washington Health Benefit Exchange, said in a statement. “This special enrollment window will allow these individuals—as well as those who experienced difficulty completing their applications—additional time to get enrolled for 2015 coverage.”
Similarly, California, New York and Kentucky are considering their own grace periods aimed at consumers who may not have realized they will pay a fine for not having health insurance.
“This is a teachable moment,” Peter Lee, executive director of California’s exchange, Covered California, said. “This is the first time ever in our history that health care and taxes are totally intertwined.”
>>> Appeals Court Rules Against Geneva College in Obamacare Abortion Drug Case
Families USA, a nonprofit in favor of the Affordable Care Act, encouraged the Obama administration to create a special enrollment period for those who didn’t purchase insurance this year.
“This enrollment period is unusual because this is the first time people are facing tax consequences for not getting enrolled,” Ron Pollack, executive director of Families USA, told The Daily Signal. “This doesn’t mean it would happen again the following year.”
“The whole idea of passing the legislation is to give as many people coverage for the first time,” he continued. “If tax season offers the first opportunity for people to learn about subsidies and the potential penalty, there’s a chance many more people could get the coverage that would help themselves and their families.”
Some, though, argue extending enrollment sets a dangerous precedent.
According to The Hill, Rep. Marsha Blackburn, R-Tenn., opposes the special enrollment period. Instead, she called the penalty for not having insurance an “unwelcome reminder” of Obamacare.
Rep. Marsha Blackburn, R-Tn. (Photo: Heritage Foundation)
Similarly, Clare Krusing, a spokeswoman for America’s Health Insurance Plans, told the Huffington Post that the additional enrollment period needs to be explained by the administration.
“Special enrollment periods need to be clearly defined in terms of who qualifies and the start and end date to make sure that consumers understand and health plans can help these folks navigate that process,” she said.
Jost disagrees. He told The Daily Signal because this is the first year the uninsured have incurred a fine for not having coverage, it qualifies as an exceptional circumstance.
“For a lot of people who have not yet filed their taxes, and that includes most Americans, people are going to realize that this penalty is there,” Jost said. “As of next year, they will have already been through it once, and presumably they’ll realize that they’re going to have to get things together.”