Policy Documents

Congress Accidentally Joins the Ranks of the Uninsured

April 14, 2010

A few weeks back, I wrote about how senior staff on committees and in leadership offices were likely exempt from the requirements of Obamacare, thanks to carveouts within a provision of the bill. As I noted at the time, the problem with the mashed-up version of a bill like this is that it's so vast and complex, no one really knows everything that's in it -- as Nancy Pelosi acknowledged.

Now the New York Times reports that Congress has unintentionally done away with its own health care coverage by passing the plan (whoops!). The problem is with the same section of the legislation I mentioned earlier -- this one requiring as follows:

(i) REQUIREMENT- Notwithstanding any other provision of law, after the effective date of this subtitle, 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 (I) created under this Act (or an amendment made by this Act); or (II) offered through an Exchange established under this Act (or an amendment made by this Act).

As the NYT notes (emphasis mine):

[The Congressional Research Service] found that this provision was written in an imprecise, confusing way, so it is not clear when it takes effect. The new exchanges do not have to be in operation until 2014. But because of a possible “drafting error,” the report says, Congress did not specify an effective date for the section excluding lawmakers from the existing program. Under well-established canons of statutory interpretation, the report said, “a law takes effect on the date of its enactment” unless Congress clearly specifies otherwise. And Congress did not specify any other effective date for this part of the health care law. The law was enacted when President Obama signed it three weeks ago.

If the CRS report is the correct interpretation -- and I have no reason to think it isn't -- expect lawmakers and staffers to scramble to fix this as soon as possible -- being forced into the exchanges in a few years is one thing, but losing FEHBP coverage right now is something no office wants to face, since they've lost the plan and the doctors they wanted to keep. Funny how that works.