Judicial Watch Asks Trump Administration to End Congressional Obamacare Exemption

(Washington, DC) – Judicial Watch requested the Trump administration stop members of Congress and their staff from unlawfully purchasing, with taxpayer subsidies, health insurance through the District of Columbia’s small business exchange.  The Judicial Watch request was made on June 14, 2017, to the Centers for Medicare Medicaid Services (CMS) as part of a process set out by the Department of Health and Human Services to reform the Patient Protection and Affordable Care Act (ACA), otherwise known as Obamacare.

Judicial Watch wrote:

The ACA requires states to create at least two exchanges: a small business exchange (referred to as “SHOP” in the ACA) and an individual exchange. It also requires certain members of Congress and congressional employees to purchase insurance on an exchange created either by their state of residence (or by the District, if they are a D.C. resident) or by the federal government, if their state of residence did not establish an exchange. 42 U.S.C. § 18032(d)(3)(D)(i). Because the ACA limits the purchase of insurance on a small business exchange to employees of small businesses – and Congress is not a small business – the ACA unequivocally requires that certain members of Congress and congressional employees purchase insurance on an individual exchange created either by their state of residence (or by the District, if they are a D.C. resident) or by the federal government for that state.

Nonetheless, OPM promulgated 5 C.F.R. § 890.102(c)(9), which purportedly authorized congressional employees to purchase health insurance offered by an appropriate small business exchange, and the OPM Director subsequently issued guidance stating, “OPM has determined that the DC SHOP . . . is the appropriate SHOP from which Members of Congress and designated congressional staff will purchase health insurance in order to receive a Government contribution.” Federal Employees Health Benefits Program: Members of Congress and Congressional Staff, 78 Fed. Reg. 60653, 60654 (Oct. 2, 2013).

Similarly, CMS issued guidance stating, “Consistent with the OPM rule, this guidance clarifies that offices of the Members of Congress are considered qualified employers eligible to offer coverage to Members and designated Congressional staff through the appropriate SHOP as determined by OPM. 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, provided that the office offers coverage to those full-time employees who are determined by statute to purchase health insurance from an Exchange for the

purpose of the government contribution.” CMS, Affordable Insurance Exchanges Guidance (September 30, 2013, available at [URL REMOVED]

Because certain members of Congress and congressional employees are enrolled in a small business exchange, the government is contributing monies contrary to the ACA. If OPM’s and CMS’s regulation and guidance were revoked, the government would save monies being expended unlawfully to provide contributions to the approximately 20,000 members of Congress and congressional employees. In addition, the rule of law will be enforced.

“Congress, through fraud, is violating Obamacare to get taxpayers to pay for its health insurance,” said Judicial Watch President Tom Fitton. “If the Trump administration required Congress to follow the law, taxpayers would be saving money, pure and simple. We hope the Trump administration will end this clear violation of law by Congress.”

Judicial Watch previously uncovered false applications filed by the U.S. House of Representatives and Senate with the D.C. Exchange Authority showing that the House and Senate claimed to have only 45 employees each. They also show that the House and Senate attested to having “50 or fewer full-time equivalent employees.” Congress employs upwards of 20,000 people. The applications also falsely state that the House and Senate are “local/state governments.”

Judicial Watch’s is also challenging the unlawful Obamacare subsidies for Congress through a taxpayer lawsuit in the Superior Court of the District of Columbia (Kirby Vining vs. Executive Board of the District of Columbia Health Benefit Exchange Authority (No. 14-0006496)).

The case is currently before the D.C. Court of Appeals.

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