CLAIM: Congressional employees illegally skirt Obamacare’s terrible premiums

Obamacare opponent Michael Cannon believes that if the Department of Justice investigates D.C.’s health exchange, it could find grounds for criminal charges.

Cannon, the director of health policy studies at the libertarian Cato Institute, and John Malcolm, a legal expert at the conservative Heritage Foundation and former deputy assistant attorney general in the Department of Justice’s Criminal Division, have been investigating a program through the D.C. Health Benefit Exchange Authority (DCHBX).

They argue that the DCHBX enabled employees of Congress, and others, to illegally enroll in a program meant for small businesses. The argument stems from documents obtained under the Freedom of Information Act (FOIA), through which Judicial watch and the Cato Institute obtained the information.

Cannon and Malcolm wrote about their concerns in a Washington Examiner opinion piece. In it, they write:

“Congress’ ongoing failure to repeal Obamacare means ordinary citizens will continue to suffer that law’s rising penalties, wage cuts, reduced choice, rising premiums, eroding coverage, administrative burdens, and collapsing markets, even as members of Congress enjoy special exemptions and illegal subsidies that spare them from the burdens of that law.”

According to the FOIA documents, members of Congress and their staff may have filled out “inaccurate personal information on an application for health insurance,” the Washington Examiner reports. Within the material they obtained is a letter from an official at the DCHBX. The letter states that the agency does not verify information, and no one would be denied coverage through the district’s small business exchange. It is, therefore, possible to complete a form without entering the correct information.

Falsifying information would allow congressional applicants to qualify for coverage meant for small business benefits for employers who have less than 50 workers.

“If an employer puts down false information, then the D.C. exchange didn’t bother to look it up,” Cannon said. “Not only could ineligible large employers be participating, but they could have been doing it beforehand.”

According to the report, under Obamacare, members of Congress and their staff were no longer allowed to be in the Federal Employees Health Benefits Program (FEHBP), which is the program other government workers use. The new arrangement would require them to receive the same coverage as people on the Obamacare-mandated insurance exchanges, and prohibit members of Congress and Capitol Hill aides from getting subsidies worth thousands of dollars for their health insurance.

“When members learned that they and their staff would be losing the employer contributions they had under FEHBP, which add up to as much as $12,000 a year, the Obama administration through the Office of Personnel Management created a workaround that allowed them to keep the contributions and sign up through the small business exchange,” the report states.

Cannon is opposed to this arrangement, calling it illegal and noting middle-class people, who don’t receive subsidies under Obamacare, were forced to pay the new premiums with no workaround.

“Why is it that these people over here get a pay cut, and they don’t get a workaround?” Cannon said. “If members are concerned about it, they can pass a bill that increases salaries for staff that would allow an equivalent of what they would have gotten from FEHBP.”

The investigation led by Cannon and Malcolm alleges that in November 2013, members of Congress and their aides were asked to fill out forms for health insurance, and they answered several questions inaccurately. “They had to attest that they had fewer than 45 members and 45 employees, even though Congress has 535 members overall and employs thousands of staffers,” the Examiner states.

The report continues:

“The document also asked applicants to check a box attesting that they employ 50 or fewer full-time equivalent employees. As ’employer type’ they selected ‘State or Local Government,’ and wrote in ‘U.S. House of Representatives’ or ‘U.S. Senate’ rather than their names, provided dates of birth that cannot be verified with a specific name and had to attest they didn’t have any dependents.

“At the end of the application they were prompted to type in an electronic signature next to the statement, ‘I’ve provided true and correct answers to the questions on this form to the best of my knowledge. I know that if I’m not truthful there may be a penalty.'”

Cannon and Malcolm say inaccurately answering the questions could lead to criminal charges, including:

  • healthcare fraud
  • wire fraud
  • falsifying documents
  • making false statements to federal officials
  • triggering false claims from the federal treasury
  • conspiracy to defraud the U.S.

Nicholas Bagley, an administrative law expert and professor at the University of Michigan School of Law, disagrees. He says that the Office of Personnel Management (OPM), under the Obama administration, intended for the applicants in question to receive the small business coverage, known as SHOP.

“It’s nuts … to argue that congressional officials may have violated criminal laws in applying for SHOP coverage,” he reportedly told the Examiner in an email interview.  He says other legal experts aren’t taking the claim seriously “for good reason.”

“It’s not criminal for members of Congress and their staff to rely on an authoritative rule to maintain their health coverage,” Bagley said. “And OPM’s rule is the law until it’s superseded or a court strikes it down.”

Senator Ron Johnson (R-Wis.) has recently called for an end to the workaround. He’s asked the OPM for more details about how the rule for Congress was developed.

President Trump has also suggested changes to the health insurance benefits members of Congress receive. When the repeal and replacement of Obamacare failed in July, he tweeted: “If ObamaCare is hurting people, & it is, why shouldn’t it hurt the insurance companies & why should Congress not be paying what public pays?” and, “If a new HealthCare Bill is not approved quickly, BAILOUTS for Members of Congress will end very soon!”

The small business rule can be changed through administrative action, the Examiner reports.

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