ObamaCare fix for Congress may be illegal

Members of Congress and their staffers may have gotten a reprieve from ObamaCare, but legality of the “fix” is in question.

Thanks to a soon to be issued ruling from the Office of Personnel Managment (OPM), those who work on Capitol Hill will still receive nearly 75% contribution from the federal government to help pay for their health insurance coverage. That was at risk due to a provision of ObamaCare that required members of Congress and their staffers to be subject to the law.

Had OPM not relented to pressure from President Obama and leaders from both parties in Congress, members would have seen their health insurance premiums skyrocket because the subsidies provided through ObamaCare wouldn’t have been enough to make up the difference.

But the legality of the fix is being called into question, as Peter Suderman explained yesterday at Reason:

It’s not clear how this will work: Will staffers simply get the cash value of the employer contribution? Or will OPM put the money toward the exchange premium?

But the bigger question is whether it’s legal at all. As Robert Moffit, Edmund Hailsmaier, and Joseph Morris note in a report released last week, OPM is only allowed to authorize payments to plans with which it has contracted through a specified negotiation process. It has no stated authority to pay the government’s share toward other plans—like, for example, plans bought through Obamacare’s multiple exchanges.  In addition, the authors note that the standards and requirements for exchange plans are different than the standards for OPM-contracted plans. The exchange plans are not technically qualified to be offered through the [Federal Employee Health Benefits Program]. You can’t mix and match the two—and you can’t fund exchange plans with money meant to pay for FEHBP coverage.
Adding another wrinkle, a staffer for Senate Majority Leader has indicated that each individual Hill office will be allowed to decide whether its staff will be allowed to use the federal contribution to help pay for exchange coverage. So is each office going to be making potentially unauthorized policy decisions on its own? Can OPM confer authority on individual offices to make benefits changes that OPM is not allowed to make? If this goes awry, expect Congress to continue to look for ways to avoid Obamacare’s more personal complications. This fix may end up requiring another fix.

Let’s get this straight, the law, which was passed three years ago, is apparently so complicated that Congress can’t even figure out how to properly implement it. The sad thing is that this is just a detail of the law, a minor provision that caused relatively few headaches.

There has already been a one-year delay of the employer mandate and states are reportedly having big problems implementing the insurance exchanges, which are slated to go live at the beginning of October. Oh, and insurance premiums are rising as a direct result of the law and it’s causing employers to scale back full-time employment.

There are more than just speed bumps along the way with ObamaCare, it is, as Sen. Max Baucus (D-MT) called it — a “train wreck.”

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