Congressional Staff Obamacare Coverage Continues to Flaunt Statute

The idea from the start was that Congress and its staff would have to live under the same Obamacare rules as the rest of us.  Senator Grassley’s (R-IA) amendment to PPACA added Section 1312, requiring that they move from the enviable employer-sponsored Federal Employee Health Benefit Program to the sub-par coverage offered on the Obamacare exchanges:

(D) MEMBERS OF CONGRESS IN THE EXCHANGE.—…the only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are…offered through an Exchange established under this Act….

A good idea indeed, but one that has become a farce in practice.

First, OPM came out with the original exemption for Congress that preserved the 75% employer contribution from the federal government for exchange coverage, rather than the same subsidies available to the rest of us.  Then we learned that this congressional Obamacare exemption would be illegally offered on a tax-free basis.  Harry Reid followed this up by exempting some of his staff from the Obamacare exchange train wreck (earning multiple pinocchios for his explanation).

Last week, we learned that congressional staff represents 98% of enrollment in the D.C. Small Business Health Options Program (SHOP) exchange.  In case you missed that, there should be an emphasis on the words SMALL BUSINESS.  The federal government has roughly 2.7 million employees.

The SHOP exchange is available only to small employers.  PPACA Section 1312(f)(2)(A) defines a “qualifying employer” as “a small employer that elects to make all full-time employees of such employer eligible for 1 or more qualified health plans offered in the small group market through an Exchange that offers qualified health plans.” (emphasis added)

PPACA Section 1304(b)(2) defines a “small employer” as having 100 or fewer employees (emphasis added):

(2) SMALL EMPLOYER. The term ‘small employer’ means, in connection with a group health plan with respect to a calendar year and a plan year, an employer who employed an average of at least 1 but not more than 100 employees on business days during the preceding calendar year and who employs at least 1 employee on the first day of the plan year.

Prior to 2016, states can choose to limit this cap to 50 employees. (PPACA Section 1304(b)(3)).

HHS issued final SHOP regulations last June, which state (emphasis added): “The SHOP is limited by statute to employers with at least one but not more than 100 employees. Until 2016, States have the option to reduce this threshold to 50.”  The regulations include a familiar stamp of approval:

Approved: May 15, 2013
Kathleen Sebelius,
Secretary, Department of Health and Human Services.

Healtcare.gov has a section titled “What is considered a small business?” What does it teach us? “If you have 50 or fewer full-time equivalent (FTE) employees you’re considered a small business under the health care law.  As a small business, you may get employee insurance through the SHOP Marketplace.”

DC Health Link’s Small Business Market, the Obamacare SHOP exchange website for our nation’s capital that’s used by congressional staff, mirrors this statutorily-mandated definition of a small employer: “DC-based small businesses with 50 or fewer full-time equivalent employees (FTEs) are be able to see all health insurance policies and prices and make choices to best meet their needs and budgets.”

The federal government has millions of employees.  So how is it that congressional staff can participate in the DC SHOP exchange?  According to OPM’s final regulations, the administration has deemed it to be “appropriate”:

SHOPs are designed to provide employer-sponsored group health benefits and are, therefore, the appropriate environment in which to provide an employer contribution to Members of Congress and congressional staff.

What about the small problem that the federal government is not a small employer?  There’s a one-page release from CMS that holds the answer to that riddle: (emphasis added)

CMS clarifies that offices of the Members of Congress, as qualified employers, are eligible to participate in a SHOP regardless of the size and offering requirements set forth in the definition of “qualified employer” in the Exchange final rule….

In other words, it’s yet another way the Obamacare rules don’t apply to Congress.


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