The Fight Over Congressional Health Care Stalls Another Obama Nominee

Lame-duck Sen. Dav­id Vit­ter isn’t back­ing down from his fight against Con­gres­sion­al health care, and OPM Act­ing Dir­ect­or Beth Cobert is the latest to feel the brunt of the Louisi­ana Re­pub­lic­an’s out­rage over what he calls the “Wash­ing­ton’s Obama­care Ex­emp­tion.”

Vit­ter has placed a hold on the nom­in­a­tion of Cobert to per­man­ently lead the agency, writ­ing in a let­ter re­leased Thursday that she failed to re­spond to his ques­tions. It’s not the first time Vit­ter has placed a hold on an OPM nom­in­ee be­cause of Con­gres­sion­al health care, a cru­sade the Small Busi­ness and En­tre­pren­eur­ship Com­mit­tee chair­man has been lead­ing for years.

The an­swer to what ex­actly Vit­ter is op­pos­ing can’t be ex­plained in one breath, but it can be found in just a few lines in the Af­ford­able Care Act. The law states “the only health plans that the fed­er­al gov­ern­ment may make avail­able to Mem­bers of Con­gress and con­gres­sion­al staff … shall be the health plans that are cre­ated un­der this Act … or offered through an ex­change es­tab­lished un­der this Act.”

But the law didn’t spe­cify which ex­change. So, OPM ended up rul­ing on the mat­ter, de­cid­ing that mem­bers and staff who wanted health in­sur­ance through their em­ploy­er were re­quired to opt in­to D.C.’s small busi­ness ex­change.

To Vit­ter, that’s the “Wash­ing­ton Obama­care Ex­emp­tion.” The small busi­ness ex­change al­lows em­ploy­ers to con­trib­ute to an em­ploy­ee’s health plan, and Vit­ter ar­gues Con­gress is a large em­ploy­er, and thus, mem­bers and staff should be re­quired to shop in the in­di­vidu­al mar­ket­place, which would make them in­eligible for em­ploy­er con­tri­bu­tions.

“As much as fed­er­al bur­eau­crats en­joy hid­ing be­hind lay­ers of red tape, we have now reached the point where OPM can no longer avoid ex­plain­ing how Con­gress was al­lowed to pur­chase health in­sur­ance as a small busi­ness – when it clearly is not,” Vit­ter said in a state­ment. “Ms. Cobert’s nom­in­a­tion will not move for­ward in any ca­pa­city un­til the Amer­ic­an people have re­ceived an­swers as to why Wash­ing­ton’s Obama­care Ex­emp­tion ex­ists.”

In Vit­ter’s let­ter, he men­tions that it re­cently came to his at­ten­tion that the U.S. Sen­ate Dis­burs­ing Of­fice and the House’s Chief Ad­min­is­trat­ive Of­fice con­sider Con­gress a large em­ploy­er for re­port­ing health cov­er­age. “I have writ­ten the Com­mis­sion­er of the In­tern­al Rev­en­ue Ser­vice re­quest­ing con­firm­a­tion that the Con­gress is a large em­ploy­er and wheth­er or not there have been any vi­ol­a­tions of the In­tern­al Rev­en­ue Code giv­en com­mu­nic­a­tions and reg­u­lat­ory lan­guage by two fed­er­al gov­ern­ment agen­cies that seem to be con­tra­dict­ory,” the let­ter said.

Vit­ter’s battle hasn’t been solely aimed at nom­in­ees. The Af­ford­able Care Act defined con­gres­sion­al staff as “all full-time and part-time em­ploy­ees em­ployed by the of­fi­cial of­fice of a Mem­ber of Con­gress”—a mat­ter Vit­ter took up with the Sen­ate Re­pub­lic­an con­fer­ence in Decem­ber 2014. He wanted to en­sure  all staff were on the ex­changes in­stead of the fed­er­al pro­gram, in­clud­ing com­mit­tee and lead­er­ship staff. However, the rule was non­bind­ing, and a Na­tion­al Journ­al sur­vey last Feb­ru­ary and March found that most—but not all—were par­ti­cip­at­ing.