Today, January 28, 2021, President Biden signed an executive order establishing a new special enrollment period for the Affordable Care Act’s marketplaces in most states, in order to increase health coverage during the COVID-19 pandemic.  The special enrollment period will begin February 15, 2021 and run through May 15, 2021 and like the annual open enrollment period, will likely be available to anyone who is eligible to purchase a marketplace plan. (The special enrollment period will apply in the 30 states with federally-facilitated marketplaces and the 6 states with state-based marketplaces using the federal platform.  In these 36 states, the annual open enrollment period for 2021 had previously closed on December 15, 2020.  The remaining 15 states and the District of Columbia with state-based marketplaces could potentially reopen enrollment through new special enrollment periods as well but that will be a state-by-state choice.)

This special enrollment period could facilitate the enrollment of many more people in marketplace plans, particularly if it is supported by a coordinated, well-financed advertising, marketing, outreach and consumer assistance campaign.  Such an effort would significantly increase public awareness of the new special enrollment period and help guide families through the application, enrollment and plan selection process.  According to the Kaiser Family Foundation, in 2021, nearly 9 million people are estimated to be eligible for subsidized marketplace coverage but remain uninsured.  But a Kaiser Family Foundation poll in December 2020 found that only 14 percent of Americans who buy insurance on their own or are uninsured were aware of the annual open enrollment period deadline for the marketplaces in their state.

This is due, in part, to the Trump Administration’s significant reduction in spending on marketing, outreach and consumer assistance activities related to the Affordable Care Act over the last four years.  As a result, new marketplace enrollment has fallen each year since 2016.  The Trump Administration’s failure to reverse course during the COVID-19 pandemic was particularly egregious, as millions of families lost their jobs and their employer-sponsored insurance.  (While overall enrollment in the federal marketplaces grew between 2020 and 2021, that was the result of more existing enrollees renewing coverage, rather than any increase in new marketplace enrollees despite the greater need.)  The Trump Administration also did not make any concerted effort to increase awareness of marketplace coverage options, or of coverage under Medicaid and the Children’s Health Insurance Program (CHIP), especially among individuals and families who had employer-sponsored insurance, who may have lost jobs or income in the pandemic and have no prior experience with the marketplaces, Medicaid or CHIP.  The Trump Administration also did not open a broad special enrollment period for federal marketplaces in 2020 in response to the pandemic, or even extend the 6-week annual open enrollment period for plan year 2021, even as 12 states with their own marketplaces reopened enrollment and many extended their annual open enrollment periods.

The new special enrollment period will essentially be a new 3-month open enrollment period, with anyone who is eligible able to newly purchase a marketplace plan.  (While there is an existing special enrollment period in the federal marketplaces for people who have lost their employer-sponsored insurance, they must have been previously insured and enroll within 60 days of the loss of coverage.)  Moreover, the Kaiser Family Foundation points out that there is likely well over $1 billion in funding available to the Biden Administration to support advertising, marketing, outreach and consumer assistance related to the enrollment period.  This funding comes from accrued user fees collected from marketplace insurers that were not spent by the Trump Administration.  While the executive order does not spell out what the Biden Administration plans to do to support this new special enrollment period, it is widely expected that the Biden Administration will use some of these available budgetary resources to finance a campaign to maximize enrollment.  The three-month duration of the special enrollment period should allow the Biden Administration sufficient time to get this effort up and running.

The special enrollment period thus provides a critical opportunity to increase enrollment in marketplace plans, especially for those with low- and moderate-incomes who are eligible for subsidies, to ensure that more individuals and families have health coverage during the pandemic.  Combined with the advertising, marketing and outreach effort to promote the special enrollment period, it also has the added benefit of increasing enrollment among individuals and families who are eligible for Medicaid and CHIP.  That is because those applying for coverage and subsidies through the marketplaces are also screened for Medicaid and CHIP eligibility.  For example, while the marketplaces are not a major source of coverage for children, with only about one million children enrolled in 2020, 57.4 percent of uninsured children are eligible for Medicaid and CHIP but remain unenrolled.  Some families with eligible children may be identified as part of the marketplace application process or generally encouraged to enroll because of the advertising, marketing and outreach campaign.  As a result, this executive order could help increase enrollment in marketplace, Medicaid and CHIP coverage and offset a modest portion of the likely, very large increase in the uninsured resulting from the COVID-19 economic downturn.

Finally, President Biden’s executive order also directs federal agencies to reexamine policies “that reduce affordability of coverage or financial assistance, including for dependents.”  This could mean that the Biden Administration will revisit the “family glitch.”  Under the Affordable Care Act, marketplace subsidies are not available to people with an offer of affordable coverage through their employer.  This “firewall” requirement has been interpreted — incorrectly under my longstanding view — to restrict the availability of marketplace subsidies for families (spouses and dependent children) when the cost of self-only coverage for the employee is affordable even when the cost of family coverage is not.  The family glitch has likely resulted in children ending up uninsured because their parents could not afford job-based family coverage for them but earn too much for Medicaid and CHIP.