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Another HCR Mistake -- Confusion Over Congress' Insurance Coverage

April 13, 2010 - by Donny Shaw

The New York Times reveals the next embarrassing mistake with the Democrats’ drafting of the health care bill:

It is often said that the new health care law will affect almost every American in some way. And, perhaps fittingly if unintentionally, no one may be more affected than members of Congress themselves.

In a new report, the Congressional Research Service says the law may have significant unintended consequences for the “personal health insurance coverage” of senators, representatives and their staff members.

For example, it says, the law may “remove members of Congress and Congressional staff” from their current coverage, in the Federal Employees Health Benefits Program, before any alternatives are available.


“It is unclear whether members of Congress and Congressional staff who are currently participating in F.E.H.B.P. may be able to retain this coverage,” the research service said in an 8,100-word memorandum.

And even if current members of Congress can stay in the popular program for federal employees, that option will probably not be available to newly elected lawmakers, the report says.

The basic problem here seems to be that the requirement for members of Congress to drop their federal health benefits is in contradiction to the language in the bill that protects all individuals from having to give up their existing health care coverage. That section reads:

(1) IN GENERAL- Nothing in this Act (or an amendment made by this Act) shall be construed to require that an individual terminate coverage under a group health plan or health insurance coverage in which such individual was enrolled on the date of enactment of this Act.

So, it’s possible that incumbents could end up getting to keep their federal health care benefits while newly elected members have to buy their own insurance on the exchanges.

It’s a long bill — likely the longest ever passed by Congress — so it was bound to contain errors, and I’m not surprised to hear that the provision requiring members of Congress to give up their federal health care benefits and buy insurance through the exchanges is problematic. It was sort of just thrown in by the Finance Committee in October for political reasons after the bill was mostly written and after it had been reviewed by 4 of the 5 committees with jurisdiction. The language protecting existing coverage, on the other hand, has been in the bill since the very first iteration was introduced in the House last July. It had been vetted by 5 congressional committees and even got a good amount of blog discussion and public commenting.

Not surprisingly, the CRS report describes the provision as something done haphazardly and without much consideration of how it would work with other provisions of the law:

In its painstaking analysis of the new law, the research service says the impact on Congress itself and the intent of Congress are difficult to ascertain.

The law apparently bars members of Congress from the federal employees health program, on the assumption that lawmakers should join many of their constituents in getting coverage through new state-based markets known as insurance exchanges.

But the research service found that this provision was written in an imprecise, confusing way, so it is not clear when it takes effect.

The new exchanges do not have to be in operation until 2014. But because of a possible “drafting error,” the report says, Congress did not specify an effective date for the section excluding lawmakers from the existing program.

Under well-established canons of statutory interpretation, the report said, “a law takes effect on the date of its enactment” unless Congress clearly specifies otherwise. And Congress did not specify any other effective date for this part of the health care law. The law was enacted when President Obama signed it three weeks ago.

In addition, the report says, Congress did not designate anyone to resolve these “ambiguities” or to help arrange health insurance for members of Congress in the future.

“This omission, whether intentional or inadvertent, raises questions regarding interpretation and implementation that cannot be definitively resolved by the Congressional Research Service,” the report says. “The statute does not appear to be self-executing, but rather seems to require an administrating or implementing authority that is not specifically provided for by the statutory text.”

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