Politico Hypes Story about Congress and the Affordable Care Act

Politico has a story posted late yesterday with the headline, “Lawmakers, aides may get Obamacare exemption.” There is some real news in the story; leaders in Congress are looking for ways to change the provision of the Affordable Care Act (“ACA”) which denies members of Congress and their staff health insurance under the Federal Employees Health Benefit (“FEHB”) Program once the insurance exchanges mandated by the ACA become operational. Therefore, members and their staff under this provision will be denied employer-provided health insurance and will need to find coverage through the exchanges. (On the MSNBC cable show, Morning Joe, Mike Allen of Politico hyped this story and did not receive any questions that would have forced him to explain what this is really about. Mike Allen’s appearance can be viewed at the end of this clip.)

Politico’s presentation of this story is misleading and will provide fuel to the anger many feel about the ACA without really understanding it. In fact, the provision in question is in fact an exemption from the requirement that employers over a certain size provide health insurance to their employees. The provision, which was introduced by Senator Chuck Grassley (R., IA), reads as follows:

“(D) MEMBERS OF CONGRESS IN THE EXCHANGE.—

(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).

(ii) DEFINITIONS.—In this section:

(I) MEMBER OF CONGRESS.—The term ‘‘Member of Congress’’ means any member of the House of Representatives or the Senate.

(II) CONGRESSIONAL STAFF.—The term ‘‘congressional staff’’ means all full-time and part-time employees employed by the official office of a Member of Congress, whether in Washington, DC or outside of Washington, DC.”

The ACA (or “Obamacare”) is, of course, more than the exchanges, and U.S. residents are subject to and affected by provisions of the ACA whether or not they obtain health insurance through the ACA exchanges. Employers, such as corporations or the federal government, are supposed to offer their employees health insurance. The reason the ACA contains this provision removing most members and their staffs from the FEHBP was political. Now Congress realizes that this causes a problem for recruiting and retaining staff, since the rest of the federal government will continue to use the FEHBP. The FEHBP insurance plans are likely to be more attractive than what it is offered on the exchanges. It is a political problem for them to fix this, but to say that they are seeking an Obamacare exemption is misleading.

There is some confusion about the meaning of the Congressional provision. It appears generally accepted, as the Politico article states, that the provision does not cover the staff of Congressional committees. More subject to debate is whether the provision extends to the staffs of the Congressional leadership. The Politico article also says that it does not extend to members of Congress currently receiving Medicare benefits. I cannot find any support elsewhere for this contention and cannot say whether Politico is correct about this.

With regard to Medicare, it seems as if the provision could be read to deny some members and their staff Medicare benefits. It could be construed that their eligibility for Medicare is based on their service in Congress, if they had no significant employment elsewhere, and that Medicare is a health care plan offered by the federal government. That obviously was not the intent of the law, and I doubt that it will be interpreted that way. This may need to be clarified at some point. However, unless Politico is relying on some provision of the ACA that I am unable to locate, it would appear that under current law members of Congress and their staff eligible for Medicare will need to look elsewhere than the FEHB to supplement Medicare coverage.

It also appears that this provision will remove one benefit of federal employment, to continue to receive FEHB insurance as an annuitant. Congressional staff members who were planning on that for retirement will likely seek employment elsewhere in the federal government if the provision is not amended or repealed.

Politico is obviously trying to gain readers by hyping this story. It is a legitimate story; Congress has a political problem in amending or repealing this provision though there are persuasive arguments to do this. But in presenting the story in this misleading way, Politico is doing more than reporting; it is becoming a political actor inflaming opponents of the ACA with a false story line. That is not what one should expect from a news outlet founded by former Washington Post journalists that wants to be taken seriously.