This morning, the Obama Administration released a proposed rule by the Office of Personnel Management (OPM) that has the effect of allowing Members of Congress and their staffs to buy health insurance coverage in the new exchanges (as required by Obamacare) and use the large, tax-free subsidy that they receive for their current coverage under the Federal Employees Health Benefit Program (FEHBP) to pay for their new exchange coverage.

As my colleagues and I pointed out in our paper last week, the federal government doesn’t actually have legal authority to pay for health coverage for federal workers in a plan that is not one of the plans contracted for by OPM under Title 5 Chapter 89 of the U.S. Code—which authorizes OPM to operate the FEHBP.

In its new regulation, OPM points to the general definition of a health plan in 5 U.S.C. 8901(6), which reads:

“health benefits plan’’ means a group insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or similar group arrangement provided by a carrier for the purpose of providing, paying for, or reimbursing expenses for health services;

OPM then blithely states:

Although, pursuant to its authority under chapter 89 of title 5, OPM will have no role in “contracting for” or “approving” health benefit plans that are offered through the Exchanges, there is no doubt that such plans fit within the definition of “health benefit plan” under 8901(6).

Pardon me, but in fact there is a doubt. The definition OPM cites specifies group plans, but the exchange plans will be individual plans—that is how they will be regulated by state insurance departments and how they will be treated under all of the other provisions of Obamacare that apply to exchange plans.

Furthermore, the real issue is not the definition of a “health plan,” but rather the (lack of) legal authority for the federal government to pay for health plans through FEHBP that OPM has neither “contracted for” nor “approved.”

OPM concludes by proposing to amend the Code of Federal Regulations as follows:

§ 890.201 Minimum standards for health benefits.

(d) Nothing in this part shall limit or prevent a health insurance plan purchased through an Exchange, pursuant to section 1312(d)(3)(D) of the Patient Protection and Affordable Care Act, Public Law 111-148, as amended by the Health Care and Education Reconciliation Act, Public Law 111-152 (the Affordable Care Act or the Act), by an employee otherwise covered by 5 U.S.C. 8901(1)(B) and (C) from being considered a “health benefit plan under this chapter” for purposes of 5 U.S.C. 8905(b) and 5 U.S.C. 8906.

Presto! According to OPM, anything that meets the general definition of a health plan is now also “a health benefit plan under this chapter” for which the federal government can pay the FEHBP subsidy for a federal employee—even if it is not a plan that OPM “contracted for” or “approved” in FEHBP, and even if it is an “individual” plan and not a “group” plan as required by the statutory definition that OPM relies on.

It was bad enough that Congress had to pass the law to find out what was in it. Now, the Administration is ignoring the law when they don’t like what they find.


Congress in the Obamacare Trap: No Easy Escape