The Dubious Legality of the Hill’s Obamacare Fix

Whitehouse.govWhitehouse.govLast week we found out that members of Congress and their staffers would get an administrative fix to their most personal Obamacare headache: the law’s requirement that legislators and Hill workers must get their health insurance through Obamacare’s exchanges.

Part of the fear was that they would have to switch out of their current plans, provided through the Federal Employee Health Benefits Program (FEHBP), and into new plans offered through the exchanges. But the bigger worry was that they would have to buy insurance from the exchanges without the benefit of their employer’s coverage contribution, which currently covers 75 percent of the cost of their premiums—a benefit equal to thousands of dollars a year for many staffers.

This week, the Office of Personnel Management (OPM), which administers federal employee health benefits, is expected to issue a rule stating that legislators and their staffers will still have to buy through the exchanges—but will be allowed to use the employer contribution toward plans purchased on the exchanges.

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 FEHBP. You can’t mix and match the two—and you can’t fund exchange plans with money meant to pay for FEHBP coverage.

Nor is it clear that OPM can easily allow a widespread employee cashout of benefits. That’s the sort of thing that usually requires legislation.

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.

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  • Palin's Buttplug||

    No byline?

  • Fist of Etiquette||

    Heaven fucking forbid the brain trust that brought us Obamacare in the first place loses a single functionary due to rising healthcare costs. Thank God they figured out the unique solution of shoveling tax dollars at the problem.

  • Drake||

    We talking about the people who should suffer the most under the shitty law THEY wrote. I would prefer they all have to leave DC completely broke.

  • anon||

    Hah! And what alternate timeline do you reside in where that might actually happen?

  • Ska||

    The fourth lighthouse where Elizabeth isn't even wearing a choker.

  • Anders||

    What kind of racist a-hole thinks Congress should obey the law? Or the Executive branch.

    When I read articles like this I realize there are still idiots who refuse to accept the innate benificence and magnificance of our Lords and Masters.

    Truly I say unto you. You do not deserve your masters. Just keep payin' those taxes and STFU or we will deal with you just like we dealt with the rest.

  • sarcasmic||

    In a republic that functions under rule of law, the law applied equally to everyone regardless of if they are a mere citizen of part of the political class.

    In a feudal system there are laws for the peasants and a different set of laws for the aristocracy and knighted classes.

    The costumes have changed, but the system remains the same.

  • The Late P Brooks||

    But the bigger question is whether it’s legal at all.

    You slay me, Suderman.

  • Jerryskids||

    But the bigger question is whether it’s legal at all.

    What difference, at this point, does it make?

    It depends on what the meaning of the word 'is' is.

    FWTY.

  • anon||

    In a republic that functions under rule of law, the law applied equally to everyone regardless of if they are a mere citizen of part of the political class.

    What a novel idea! Someone should try that someday.

  • sarcasmic||

    It's been tried several times. It works. For about a generation.

  • anon||

    If only there were a document somewhere that outlined the limits of government and laid out how laws should be applied...

  • Anders||

    Yeah, if only there were unicorns too. I like them too.

    But you know...they don't exist either right?

  • Scruffy Nerfherder||

    Screw you man. Unicorns do exist. You just have to believe.

  • Anders||

    That's the man I voted for and I am proud to call him our President.

    Some have called him a warfag - I call him the Unicorn of Justice. Or My Lord.

  • sarcasmic||

    Such a document is pointless if all branches of government collude to ignore it.

  • some guy||

    And all branches of government will collude to ignore the law unless a majority of voters threaten them with expulsion for doing so.

  • sarcasmic||

    And all branches of government will collude to ignore the law unless a majority of voters threaten them with expulsion for doing so.

    How would that help? Seriously. The power rests with the bureaucracy, not the talking heads. Bureaucracies are going to do what they're going to do, and no one who we elect can change that. Besides, the problem is with the type of people who seek power. Replace one crop of power hungry lawyers and you'll just get another crop of power hungry lawyers.

    I don't think a solution exists.

  • some guy||

    I think the people could solve the problem through elections, theoretically. Imagine if we had about 400 Ron Pauls in Congress and one in the White House. They could cripple the bureaucracy through lack of funding. We'll never have that many Ron Pauls in office, though, because the voters are way too human.

  • sarcasmic||

    They could cripple the bureaucracy through lack of funding.

    That would guarantee a revolution as the hundreds of thousands (millions?) of bureaucrats along with their dependents all hit the streets in protest.

  • some guy||

    Said revolution would fail miserably if the voters were of a mind to fill Congress with Ron Pauls. I realize I'm begging the question here.

  • VG Zaytsev||

    The power rests with the bureaucracy, not the talking heads. Bureaucracies are going to do what they're going to do, and no one who we elect can change that.

    Sure they can. They can eliminate the bureaucracies.

    The fact that our politicians are pussies who won't do that does not mean that they lack the power to actually do it.

  • anon||

    Sure they can. They can eliminate the bureaucracies.

    Ok, I laughed.

  • Killazontherun||

    When men make plans, the bureaucracies laugh.

  • anon||

    Such a document is pointless if all branches of government collude to ignore it.

    I am sincerely interested in how one could enforce such a document's authority despite those that would collude to disempower it.

  • Scruffy Nerfherder||

    I heard something about this once. As I recall, it was something about blood and a tree, yada yada yada.

  • anon||

    Wait, blood!?

    THE CONSTITUTION ISN'T A SUICIDE PACT!!!

    /progtard

  • sarcasmic||

    As I recall, it was something about blood and a tree, yada yada yada.

    There's the great conundrum. For a government to effectively govern, it must be powerful enough to put down an insurrection. But for liberty to exist, the people must have the power to replace their government. Hmmm.

  • anon||

    There's the great conundrum. For a government to effectively govern, it must be powerful enough to put down an insurrection.

    If an insurrection exists that exceeds the government's monopoly on force, I'd argue it's probably a justified insurrection.

  • Sevo||

    "Such a document is pointless if all branches of government collude to ignore it"

    Or if the Regent issues a royal decree.

  • Scruffy Nerfherder||

    We need a Sebelius Barbie doll.

    "Following the law is so haarrrd."

  • Anders||

    And then it would shoot lasers out of its eyes and acid out of its snatch.

    That would fly through FDA approval, guaranteed.

  • anon||

    To be fair, following 2800 pages of legalese would present a nigh insurmountable obstacle to me.

  • Robert||

    Know what this reminds me of? The rules proposed to regulate cigarets and other tobacco products as medical devices. No way could a legitimate regulatory rule be formulated by asserting the products' suitability for regulation without banning them entirely, but FDA tried to fit that square peg into a round hole.

  • Robert||

    Oh, I posted before I saw this was about exemptions for Congress. I meant it about the state exemptions.

  • Xenocles||

    I predict: "No standing, fuck you."

  • Ken Shultz||

    "Part of the fear was that they would have to switch out of their current plans, provided through the Federal Employee Health Benefits Program (FEHBP), and into new plans offered through the exchanges."

    Right, so they won't get to keep their doctor, even if they like their doctor, which is funny*, becasue Obama once said--on this very point:

    "It turns out that, in fact, people who like their health insurance are going to be able to keep their health insurance, that there's no government takeover. If they like their doctor, they will be able to keep their doctor."

    http://www.washingtonpost.com/.....02606.html

    I guess when he said that, he was just talking about congressional staffers?

    *Not "funny", Ha Ha.

  • rxc||

    Obamacare is just another way to get us used to living under a government that rules by decree. The EPA rules on global warming/climate change/global climate disruption/fear of fire are another. Eventually we will have to give up and accept Obama as president-for-life, like Marion Barry in DC, and Robert Mugabe in Zimbabwe.

    Get over it (h/t to M. Barry). It is not going to go away.

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