Category: News Feeds

• Zimbabwe Peace Project (ZPP)
• Media Institute of Southern Africa (MISA)
• Zimbabwe Lawyers for Human Rights (ZLHR)
• Counselling Services Unit (CSU)
• Zimbabwe Association of Doctors for Human Rights, (ZADHR)
• Zimbabwe Human Rights Association (ZimRights)

6.         Legal Matters
The Judicial Services Commission (JSC) published the Practice Direction 3 of 2020, advising that the courts in the country will open at full capacity from 11 May 2020.  The courts will operate on the following rules;

• Court Registries will be open for litigants, legal practitioners and the public on weekdays from 8am until 3pm.
• Filing of court documents will proceed in terms of existing court rules, legislation or as directed in court orders
• All matters are to be determined expeditiously without delay; this is to limit contact and attendance at courts by litigants
• The Sheriff will continue to serve all court process and orders, but will not carry out evictions, executions or conduct sales in execution for the duration of the lockdown period.
• The Marriages registry will remain closed in the lockdown period

• urges security forces to respect human rights as they are enforcing the lockdown.
• urges the government to investigate allegations of partisan distribution of food aid
• urges community members to adhere to the lockdown and to exercise social distance
• urges local authorities to step up efforts to provide clean and potable water for communities.
• urges the government to provide personal protective equipment to health workers on the frontlines

Post published in: Featured

Post published in: Featured

According to data collected by ALM for their 2020 Am Law 100 ranking, which Biglaw firm notched the greatest gain in gross revenue?

Hint: The firm went up an impressive 16.3 percent in gross revenue, landing it in the 65th spot overall.

See the answer on the next page.

The Justice Department’s effort to prove that actually, Christians are a persecuted minority, targeted for their faith by evil Democratic governors, continues apace.

“We are going to keep an eye on all these actions that restrict people’s liberty,” Bill Barr told Fox’s Laura Ingraham last month, in a wide-ranging interview during which the nation’s top lawyer opined that the media was on a “jihad” against supposed miracle drug hydroxychloroquine. (How’d that one work out again?)

DOJ spox Kerri Kupec promised that the Department would prioritize the First Amendment right of all Americans to assemble in holy contagion as tens of thousands of their fellow countrymen are dying of disease.

And apparently they meant it, since the Justice Department has now waded into multiple cases where the state government failed to grant a special carve-out in the stay-at-home order for religious assembly. Which, in the DOJ’s telling, is exactly the same as targeting religious people for discrimination.

How can governors let heathens spend five minutes picking up beer at the Liquor Mart if they won’t allow unlimited numbers of the faithful to assemble for hours on end in close proximity? Clearly this bespeaks a hostility toward religion, rather than a zeal to protect public health!

This has been the Department’s position in motions supporting the right of persecuted churches in Kentucky and Kansas to assemble despite statewide stay at home orders. By amazing coincidence, Kentucky Governor Andy Beshear and Kansas Governor Laura Kelly are both Democrats, and so is Ralph Northam in Virginia, the site of this week’s entry into the grievance sweepstakes. All three of these states have Senate seats up this cycle, and inventing a war on religion by Democratic governors might well gin up the faithful to vote red in November.

So yesterday, the DOJ filed a motion in support of the Lighthouse Fellowship Church of Chincoteague, Virginia, whose pastor was criminally cited on April 5 for holding an in-person service for 16 people. In a May 1 denial of the plaintiff’s request for a TRO, U.S. District Judge Arenda L. Wright Allen noted that the church could have adapted its worship through electronic means, or even by holding two in-person services, splitting its 16-strong throng of parishioners in half to abide by the 10-person limit:

Plaintiff faces the choice between adapting to current circumstances by utilizing a combination of small group worship services multiple times per day and week, broadcasting worship services on its Facebook page, sending emails to members, calling members, making house visits to members, and mailing communications to members, or risking arrest by inflexibly continuing on with its usual modes of religious worship. Although this may not be how Plaintiff wishes to practice its religion under ideal circumstances, these are not ideal circumstances. The equities, in the context of a deadly pandemic, tip in Defendant’s favor.

But according to the DOJ, Judge Allen “erred” in refusing to allow the Plaintiffs to argue their case before denying the TRO. Although the brief cautions that “the United States does not take a position on the ultimate question of whether the Commonwealth may have a legally sufficient justification for treating Plaintiff differently from non-retail businesses or other permitted assemblies that may be comparable,” it urges the court to force Virginia to “demonstrate that it has compelling reasons to treat Plaintiff differently than similar non-religious businesses, and that it has pursued its objectives through the least restrictive means.”

Virginia Solicitor General Toby Heytens filed a response last night, in which he also demanded time to brief the court. Not only to demonstrate the falsehood of the Plaintiff’s claim that Governor Northam’s order “exempts all non-retail businesses, including professional services, from the mass gathering limit,” but also assert the state’s claim to Eleventh Amendment sovereign immunity from federal suit, lest it be waived before the case reaches the Fourth Circuit on appeal.

So, to recap, the Justice Department isn’t saying that Governor Northam hates Christians. But it’s not NOT saying it, either. And if that Obama judge knows what’s good for her, she’ll go back and rectify the situation STAT.

States rights for me, but not for thee ….

THE UNITED STATES’ STATEMENT OF INTEREST IN SUPPORT OF PLAINTIFF’S MOTION FOR AN INJUNCTION PENDING APPEAL [Lighthouse Fellowship Church v. Northam, No. 2:20-cv-00204-AWA-RJK (E.D.V.A. May 3, 2020)]
ORDER [Lighthouse Fellowship Church v. Northam, No. 2:20-cv-00204-AWA-RJK (E.D.V.A. May 3, 2020)]
DEFENDANT’S NOTICE OF INTENT TO FILE RESPONSE TO PLAINTIFF’S MOTION FOR INJUNCTION PENDING APPEAL AND UNITED STATES’ STATEMENT OF INTEREST  [Lighthouse Fellowship Church v. Northam, No. 2:20-cv-00204-AWA-RJK (E.D.V.A. May 3, 2020)]

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

COVID-19 has forced a lot of Biglaw firms to take a hard look at exactly how and where they are spending their money. And one firm that has been taking an axe to expenses is Nixon Peabody. Unlike some other firms that cut expenses and salaries as the first austerity measures to combat the economic upheaval surrounding the novel coronavirus while keeping as many people as possible gainfully employed, Nixon Peabody went right for cutting jobs.

As we’ve previously reported, the firm laid off/furloughed approximately 10 percent of non-partner attorneys and did massive staff layoffs. Now we’re hearing from law school students that were supposed to start work as summer associates at Nixon Peabody that the firm has left them, “shit out of luck.”

As tipsters report the firm has canceled their summer program. While that isn’t, unfortunately, unheard of in these times, Nixon isn’t extending the summer associates offers of future employment (either after graduation for 2Ls, or next summer for 1Ls). That is bound to sting, especially when the majority of other top law firms are making their summer associates offers. And, yeah, based on the emails Above the Law is receiving, folks are angry indeed:

Only a few weeks before I was slated to move, they called telling me I’m basically shit out of luck and no guaranteed offer…. They didn’t even have the decency to let me know back in early April. They had to do it only a few weeks before the program was supposed to start to fuck everyone over with housing and zero notice to look for a new summer internship. And now with NO 2L summer job, I likely will have to head into 3L hiring. It’s so annoying because I was good enough of a student to have landed a biglaw summer associateship! I had other options but I CHOSE these guys and completely got shafted. RIP.

When reached for comment, a spokesperson at Nixon Peabody confirmed the cancellation of their summer program and noted the firm will offer summer associates a $5,000 stipend and 1L summer associates will be considered for next year’s summer program.

Best of luck to those that now find themselves without a clear career path due to COVID-19.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

It’s become clear that in dealing with COVID-19 and its effect on the world around us we may all be in the same storm, but we are certainly not in the same boat. Our current situations — how we are able to respond to the virus and shutdowns — vary enormously. When you’re caught in a storm, it makes a difference whether you’re on a raft, inflatable boat, canoe, kayak, or jet ski; similarly, several qualities about your company will affect its experiences in this new reality. Some have been able to weather the storm better than others, and based on my informal survey, those more successful ones tend to share three basic and fundamental factors:

One, do employees and members of your legal department have a laptop? This simple decision to distribute laptops to employees makes the difference between freedom to work from anywhere and being chained to a desk. It turns out that in the pandemic, having a portable office that allows your employees to transition seamlessly to remote work without you, the general counsel, needing to purchase and distribute laptops is a major time and resource saver. Not to mention the effect it has on the company’s morale and anxiety level.

Two, do employees and members of your legal department have access to stable, reliable internet. One general counsel explained to me that he feels completely unsupported because his executive assistant does not have an internet connection from home and therefore could not be helpful. Ignoring for a moment the first world problem here, the realization that not all your employees may have a stable, reliable internet is powerful. Believe it or not, it is absolutely a reality in the 21st century United States that not everyone has internet at home. This is even true in Silicon Valley, where I am located.  Whether an employee has access to stable, reliable internet at home may be a personal decision, but it will most definitely have implications on your legal department’s success in the pandemic. Perhaps ensuring that employees have access to stable, reliable internet should be part of the modern onboarding process.

Three, your company and members of your legal department are more likely to fare better in crises if you plan for disasters and do tabletop exercises. Practice really does make perfect. It turns out that if you went through an exercise of thinking of what could possibly go wrong and ways to address that, in addition to writing the robust force majeure provisions in your contract, your company will be in a much better position today.

As we enter the reconstruction efforts, modern general counsels are shifting their attention from the basics to what makes long-term success for a company and legal department. Two efforts stand out — culture and sustainability. It turns out that the focus on creating a culture where employees can thrive and the company can do the right things for its employees, customers, and the world positions the company for long-term success.

That’s why Sharon Zezima and Kelly M. Slavitt, two well-known and highly regarded general counsels, emphasize the importance of culture and sustainability. This is where general counsel and in-house lawyers can lead, build long-term value, and engage the boards. That is where they can truly be impactful — in the short term, in an unprecedented emergency, and in the long normal, once the “new normal” kicks into gear.

Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

After the New York Board of Law Examiners indicated that, because of seating constraints, it would be offering priority seating at the upcoming Fall administration of the New York bar exam to graduates of New York law schools, we started hearing deans from out-of-state schools cry foul. A total of 21 deans have now signed onto a letter addressed to New York Court of Appeals Chief Judge Janet DiFiore lodging their objections to the plan. Earlier today, Above the Law also published Dean Vik Amar’s monthly column outlining his problems with the New York response to the crisis. And there is a conversation that needs to be had about whether or not New York has adopted the best approach to serve both the public and bar applicants.

But with all the rhetoric flying around, let’s make a few things clear off the top so we don’t lose anybody:

1.) There is nothing in this proposal suggesting that out-of-state applicants cannot or will not be admitted to the bar;
2.) No, this isn’t “protectionist”;
3.) It’s definitely not something we should be calling “discriminatory” with a straight face; and
4.) Yes, New York should ultimately junk this plan.

To be abundantly clear, two things can very much be true. First, New York’s decision to prioritize seating for graduates of New York law schools for the upcoming Fall administration of the exam can be an entirely prudent and responsible course of action, and second, it can be entirely silly to insist on having an in-person bar exam at all at this point. We’ve been pretty upfront around here with our support for a diploma privilege plus program — at least temporarily, if not permanently — and, failing that, encouraging any sub-optimal solution that recognizes the folly of forging ahead with an in-person bar exam. Given the scheduling changes states have had to endure and the likelihood that applicants will need to be even further distanced when an exam really does happen, putting even further strains on the process, this is the conclusion everyone should have reached by now.

Accepting that these are independent points, the problem with legal academics tossing around terms like “protectionist” and “discriminatory” is that it not only fails to provide a useful solution, it’s downright counterproductive and smacks of a haughty presumption that’s unbecoming of these schools.

But, I guess if you’re constitutional hammers, everything starts to look like a precedential nail.

Over the weekend, former Northwestern dean Dan Rodriguez called this plan “protectionist” and Dean Amar’s column calls it “favoritism,” which strikes at the same thing. The problem is, this is not protectionist. New York is not banning out-of-state applicants. New York is not putting a quota on out-of-state applicants. New York is not instituting a different cut score for out-of-state applicants. The state said that, in a world where we still take an in-person bar exam, the in-state examinees will take the test first with out-of-state applicants to follow. No one will be denied access to a license and no benefit is inuring to New York-licensed attorneys at the expense of future examinees.

After all, we have no problem with Wisconsin, which recognizes one rule — diploma privilege — for its law schools that isn’t accessible to those outside the state. That’s far more “protectionist” than anything proposed by BOLE since it actually sets up completely distinct paths to securing a license for in-state and out-of-state examinees.

Dean Amar’s column points out that it’s unconstitutional for a state to reserve bar membership to citizens of the state, which is probably why that’s explicitly not what New York is suggesting. It’s a fundamental right to be allowed access to a law license and stripping someone of that would invite strict scrutiny. Is that right fundamentally impaired by having some students take the exam in September and others in February? That’s a significant leap getting glossed over.

The deans’ letter notes:

Still, as you can imagine, the news of your approach has fallen hard on the many students who had planned to sit for the bar in New York this summer or fall, a number of whom have already physically returned or relocated to New York during this pandemic.

But the New York bar exam already requires many students who have relocated to their upcoming jobs in Manhattan to travel to Albany to take the exam and, let’s be honest, traveling to Albany is traumatic in the best of times.

The point is, if the alternative is taking the UBE in New Jersey or heading to Albany, the out-of-state examinee is now better off on this score. Assuming, of course, that other states are going to allow applicants to crowd their testing halls to take an exam with no intention of securing a license in that state, which they probably won’t. That’s another knock on BOLE’s plan, but a knock wholly apart from suggesting that it’s unfair to make out-of-state applicants travel for the exam. [UPDATE: Oh, and it just strikes me that staggering the administration in this way increases the odds that an out-of-state student may be able to take it in Manhattan when the time comes which is another benefit.]

But as bad as “protectionist” rhetoric is, co-opting the language of racial and gender injustice to complain about bar exam seating is really uncalled for. Obviously treating in-state and out-of-state applicants differently for administration dates is technically “discrimination” but when that rhetoric is tossed around in letters like these it’s intended to evoke struggles that really don’t belong in this conversation.

From the deans’ letter:

And we worry that the resulting delay in the exam’s administration and admission to practice will fall hardest on the most economically vulnerable of our graduates and on those whose continued presence in the United States will be compromised by the delay…

This is a vitally important consideration but one that seems misplaced. If a Biglaw firm has hired a graduate on a visa to perform legal work, that job isn’t going away because the attorney-to-be didn’t get to take the bar exam on the first post-pandemic administration.

Perhaps unintentionally, the concern over the economically vulnerable gets to the heart of BOLE’s rationale for prioritizing the graduates of New York schools. Dean Amar writes:

What about the possibility that New York-based law school graduates are less likely (than graduates of out-of state schools) to take their UBE score and leave the state to practice elsewhere?

This is getting to the issue, but not quite there. The Stanford grad taking the New York bar is far more likely to be joining a global Biglaw firm that will allow the graduate to be employed and receive benefits while working as a supervised law clerk. The population of graduates who depend on passing the New York bar as a lifeline to earn their livelihood as future solo practitioners or at tiny shops that can’t carry an employee without a license are more likely products of local New York schools. Someone may be graduating from Duke with a plan to work slip and falls in Utica, but probably not. The graduates most likely to be economically at risk based on a modest delay are the graduates of New York-based schools. Add in that these attorneys are more likely to be serving economically underprivileged sectors than, say, Exxon and Goldman Sachs, and the value of speeding in-state examinees in a staggered schedule is a lot more compelling.

So that’s the purpose of the New York plan. It isn’t cutting off bar admission to anyone; it’s a reasonable effort to stagger the schedule in a way that minimizes pain. That it’s not perfect is probably a good reason to abandon an in-person exam, but if we’re stuck here then we’re stuck here.

In their letter, the deans make four suggestions for BOLE of varying degrees of plausibility.

• Offering a second date for New York’s administration of the UBE in the September 30-October 1 sitting that will be offered by the National Conference of Bar Examiners;

Would that they could. Unfortunately, the NCBE has shown no interest in allowing a second administration of the test as part of the entity’s overarching worry that someone might get a slim unfair advantage. We expect to hear more about NCBE’s plans for September with a promised update tomorrow, but barring some loosening out of the NCBE, New York’s hands are tied.

• Increasing seating for New York’s September 9-10 administration of the UBE by adding new locations within New York State;

• Creating seats for New York’s administration of the UBE outside of New York State, including, potentially, using some of our schools as possible venues;

Adding more seats! Wow, why didn’t New York think of that? Some 10,000 people take the July administration of the New York bar every year and almost half of them take it in the Javits Center, Manhattan’s sprawling convention center. All of these venues, but especially the Javits Center, are locations booked far in advance and boast a near constant stream of hosting obligations. It’s highly unlikely that the state can secure all of these seats on a dime for a September administration (nor would they necessarily be wise to do so as it’s equally unlikely those venues would permit a second wave of COVID triggering an impossibility clause which could leave the state on the hook for a massive bill if it relied on these commercial venues) and assuming some manner of social distancing will still be either required (or at least preferred by neurotic law grads), BOLE is potentially staring at a more extreme real estate need.

And while some out-of-state schools have offered up their campuses to help out, this only creates a new problem. As the deans themselves just explained above, students have already relocated to New York so forcing them to return to the West Coast to take a test does little to address that problem. It also privileges students at the out-of-state schools capable of servicing their graduates while applicants in New York proper are likely still going to be turned away in September for lack of space even with these provisions. The whole thing reeks of the privilege that graduates of top schools that have secured Biglaw jobs should obviously not be inconvenienced by a global catastrophe. If it makes the deans feel any better to know that the U.S. News rankings won’t ding them on bar passage within nine months over this, we could try to make that happen.

• Working to develop an on-line bar exam, either in conjunction with the NCBE or as a freestanding New York exam.

Yes. This.

This is the only viable proposal in this letter and it’s one that New York should not only consider but one that the state should use its considerable clout to pressure the NCBE to accommodate. The NCBE already balked at an online exam and prompted Massachusetts to start writing its own exam. Add New York to that list and the folks in Madison probably couldn’t stand up to the mounting pressure.

Bar applicants shouldn’t have to sit for an in-person exam this year. Period.

Despite this September plan, there’s still no certainty on timing. There’s no obvious path for prep courses to move forward. There’s a seating demand that is frankly untenable. And it just sucks to ask graduates to take time out of their new jobs to go back and cram for and take a test. The fairest solution is one that requires everyone to take it online at once or no one have to take an exam portion at all. At the point you find yourself dancing around with how New York should better allocate limited seats for an in-person exam, you’ve completely lost the plot.

But here’s the thing that my weekend interactions with legal academics showed me — they just don’t get how silly these arguments sound under the circumstances and, consequently, how badly their strategy undermines the effort to get some useful reform.

(Check out the deans’ letter on the next page.)

Earlier: Law School Student Governments Petitioning For Diploma-Privileged Admission
NY Bar Exam To Be Limited To NY Law Schools, Other Law Schools… Displeased
NY Bar Exam Encounters New Hurdle — Not Enough Space To Test Everyone
The New York Bar’s Misguided Discrimination Against Out-Of-State Law Schools

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

The true cost of the Covid-19 pandemic is nearly impossible to quantify. The human toll, surpassing the Vietnam War last week at 60,000 deaths, is difficult to comprehend. The number of people who have lost their livelihoods, at 30 million, is as yet incomplete, as many face long waits to file for unemployment. And we still don’t know the long-term effects on the economy or how the crisis will end, as experts warn that the novel coronavirus may well return in the fall.

But health insurance companies are less worried about the cost of the pandemic. As they prepare premium rates for 2021, a bigger problem than the cost of care will be the uptick in uninsured.

“The reality is that once we get the pandemic better under control, there’s a very real concern that there is going to be a longer-term economic downturn,” said Jocelyn Guyer, a managing director with Manatt Health. “The question of where people are getting coverage is going to be with us for a long time.”

How much does covering Covid-19 cost?
Calculations on the cost of care for the average Covid-19 case vary by a wide margin. One estimate by Covered California pegged the average cost per admission at $72,000, with patients admitted to the hospital staying for an average of 12 days. Less sick patients can rack up $600 in the average cost for an outpatient visit.

Centene CEO Michael Neidorff said the company had not yet seen enough claims data to estimate the average cost of Covid-19 treatment for Medicaid patients.

“It’s not been significant. It’s been more the testing — and we haven’t seen a lot,” he said during a Tuesday earnings call.

Even with most insurers covering out-of-pocket costs for Covid-19 testing and treatment, they may see savings in the end as patients suspend other care during the pandemic. Healthcare providers from orthopedic surgeons to dentists were forced to cancel all non-emergency procedures for the last month. Analysts with Moody’s Investors Service estimated insurers will see a decrease in utilization between 20% and 40% per month from non-essential procedures.

The postponed hip replacements and stent procedures are expected to come back, but when that will happen is anyone’s guess. Some states have already begun to lift restrictions on healthcare services, but patients, worried about getting sick, may still be hesitant to seek care.

“If you think about yourself personally, you wouldn’t feel comfortable walking into a hospital, a dentist’s office or an outpatient facility. When you think about the higher risk folks that need cardiac [surgeries] done, they’ll come in first,” Moody’s Assistant Vice President Stefan Kahandaliyanage said in a phone interview. “You’ll have this gradual pacing. We don’t expect a huge comeback of patients.”

Whether or not the cost of Covid-19 treatment will inflate premiums next year is still up in the air. Covered California estimated that premium increases could range from 4% to 40% next year, though the latter would be a high estimate.

Rita Numerof, co-founder of healthcare consulting firm Numerof & Associates, said she expected to see rate hikes next year, as insurers anticipate cancelled procedures will be rescheduled. But if premiums are too high, “I think there will be enormous pushback from businesses,” she said.

Dean Ungar, a vice president and senior credit officer with Moody’s, said it depends on how the rest of the pandemic plays out.

“It seems like we’re more on the mild side of things, but we don’t really know yet,” he said. “We don’t know what happens when we start to relax social distancing and lockdowns. It’s a little bit early to say.”

Where will people go for insurance?
The bigger question, for the moment, is where people who have lost their coverage will go for insurance. As many as 35 million people — including workers and their families — could lose employer-based health insurance during the pandemic, according to a report by Health Management Associates. As a result, Medicaid enrollment would increase by 11 million to 23 million, and another 1 million to 2 million people would get individual insurance, largely through the ACA marketplaces.

Health Management Associates estimated insurance coverage based on three different unemployment scenarios. In the worst-case scenario, 35 million people would lose employer-sponsored coverage.

States that manage their own ACA marketplaces are reporting a boost in enrollment. Since many of them have also opened special enrollment periods that allow the uninsured to get coverage, it’s difficult to know how much of the increase is from people who recently lost jobs.

• In New York, roughly 200,000 people enrolled through the New York State of Health exchange since the beginning of March, for a total of 5.1 million.
• In California, 84,000 people signed up for its marketplace plans after March 20. That’s more than 2.5 times as many people as enrolled during the same period last year.
• In Colorado, more than 12,200 people enrolled in marketplace plans. During the same period last year, just 1,861 people enrolled.
• In Minnesota, more than 9,482 people enrolled through its state-run marketplace and more than 13,700 people applied for public health insurance programs between March 23 and April 21.

“That’s going to be an important lifeline for folks,” Manatt’s Guyer said.

On the other hand, the federal government has not opened a special enrollment period for HealthCare.gov, meaning that in many states, people who were already uninsured couldn’t gain coverage through a marketplace plan. For instance, if an Uber driver lost their job, they would see no benefit.

“If you lose job-based coverage, you can sign up. But not if you just lose a job. Someone from the gig economy, if they have no health insurance right now, it does not allow them to enroll in the marketplace in federally managed states,” she added.

Looking to the Great Recession
More people would likely get coverage through Medicaid, though again, this depends on the state. During the Great Recession, when unemployment rates rose sharply to 10%, the U.S. saw major enrollment increases in Medicaid. In turn, states received increased Medicaid matching rates to help cover the cost. Congress has already increased Federal Medical Assistance Percentage (FMAP) to states by 6% since the pandemic started, and there may be another push to increase it to 12%, Guyer said.

“It does look like the economic impact of this could be worse and more sustained. The Great Recession is a good reference point in understanding things,” she said. “(States) are not going to be able to tax their way into covering these costs and they can’t borrow.”

Executives with Anthem are also looking back to the Great Recession as they try to determine what the future will hold. In 2008, commercial and individual customers made up nearly 75% of its membership compared to less than 30% today. Since then, the company has expanded its government footprint, operating Medicaid plans in 23 states and Washington D.C. It also offers plans on the individual exchanges in 14 states.

“We do expect that we will see, because of the potential high unemployment, some impact on our commercial enrollment. The early stages have been muted because of what’s happening with furloughs,” Anthem CEO Gail Boudreaux said in an earnings call. “We have a much more diversified business than we historically had.”

Boudreaux said she expects to see about 40 to 50% of members that had lost their employer-based insurance to get coverage through Medicaid, and another 30% or so to go into the individual exchanges.

In general, large, national insurance carriers will be better positioned to withstand the crisis, said Joel Ario, a managing director with Manatt Health. For example, companies like UnitedHealth Group, which have a mixture of employer-based and government plans, will be able to recapture members.

“They are across all of these markets so when people move from one market to the other, they tend to have the same members,” Ario said.

Smaller regional or local carriers, especially if they’re in an area that has been harder hit, will have a tougher time. Companies like Centene and Molina Healthcare, which have a big presence in the individual marketplaces and Medicaid plans, are expecting an uptick in members. In an earnings call, Centene CFO Jeffrey Schwaneke said the company had already seen some early membership growth in April, particularly in states that had open special enrollment periods for marketplace plans.

More insurers may look to bolster their presence in the ACA marketplaces in the coming years. UnitedHealthcare CEO Dirk McMahon said the company had already begun to look at participating in more exchanges prior to the pandemic, which it had largely exited in recent years.

“We’re still in the process of going through market by market, evaluating the relative efficiency of our network, our ability to compete, and states where we would like to extend Medicaid,” he said.

Keep your old plan

Payers are also pushing to make it easier for the newly unemployed to stay on their old plan. It’s an option that many patients would like — and is also more profitable.

Humana CFO Brian Kane said the company expected to see Medicaid membership grow, offset by reductions in large group plans and terminations of some small group plans. He expects small businesses “will disproportionately be impacted by the pandemic.”

To help them, Humana is proactively identifying companies that might be at-risk and helping them find more affordable coverage options.

A survey by LIMRA said carriers are also tweaking their benefit eligibility policies to extend coverage for employees that might have been affected by the pandemic. Of the surveyed carriers, 42% said they would continue coverage for all employees for a specific period of time, and another 22% said they would extend eligibility on a case-by-case basis.

Insurance groups are also lobbying for COBRA subsidies, which would help offset the cost for laid off employees to stay on their old health plan. Without their old company helping cover the cost, premium payments through COBRA can be staggering. The House of Representatives is currently weighing this strategy as part of its next Covid-19 relief package.

In the meantime, most insurers have kept their profit forecasts for the end of the year.

Photo credit: Joe Raedle, Getty Images.