Members of Congress and their staff currently enjoy participation in the Federal Employee Health Benefits Program (FEHBP). This program covers about 8 million federal employees and provides its enrollees a range of coverage options from private insurance companies. FEHBP is administered by the Office of Personnel Management (OPM) which negotiates with health insurance companies, approves qualified health plans for participation in FEHBP, and contracts with insurance carriers.

The new law makes clear that Members of Congress and their staff should no longer be allowed to participate in the Federal Employees Health Benefits Program. Section 1312 of the law says: “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, (1) created under this act; or (2) offered through an exchange established under this act.” Since FEHBP existed before the passage of the new law, and because the law does not allow it to be offered through an exchange—exchanges are the new health insurance bureaucracies that will be established in every state by 2014—the clear reading of the law shows Members of Congress and their staff should no longer be participating in the Federal Employee Health Benefits Program.

In fact, an April 2010 memo from the nonpartisan Congressional Research Service (CRS) confirms this conclusion. “As drafted, Sec. 1312(d)(3)(D) appears to remove Members of Congress and congressional staff, as defined by the subsection, from FEHBP and, therefore, arguably from any health insurance provider under the rules, administration, and guidance of OPM.”

A regular interpretation of law would lead one to conclude that provisions without specified enactment dates become effective when a bill becomes law. The CRS memo concludes the same, saying, “… the Supreme Court has articulated, ‘absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment.’” The same memo goes on to say that while the language could be clearer, there is no reason to expect the provision is not effective. “… reference to, but lack of, a specific effective date for this provision creates uncertainty…[but] no ‘clear direction’ from Congress exists to delay this provision from becoming effective.”

Reporting on the findings of this CRS memo, the New York Times wrote “…the report says, the men and women who wrote the law may find that the guarantee of stability does not apply to them.” So, Congressional leaders and staff who drafted the law find themselves subjected to the disruption in coverage the law creates. As the Times noted, “These seemingly technical questions will affect 535 members of Congress and thousands of Congressional employees. But the issue also has immense symbolic and political importance. Lawmakers of both parties have repeatedly said their goal is to provide all Americans with access to health insurance as good as what Congress has.”

According to the clear reading of the language of the law, Members of Congress and their staff should have been removed from the Federal Employee Health Benefits Program upon enactment of the new health care law. But they were not. And, on April 16, 2010, President Obama’s appointee to head the Office of Personnel Management, John Berry, wrote to House Speaker Nancy Pelosi regarding Section 1312 of the new law. In direct contradiction to the findings of the to the CRS memo, he arbitrarily said that that Section 1312 “is not effective until the state exchanges…become operational.”

This certainly looks like an unelected Administration official is abusing his authority to misinterpret and misapply the law, despite the clear reading of the law and the findings of the Congressional Research Service. This decision is troubling because it appears an unelected official is colluding with the powerful to exempt them from the law. Americans expect leaders in Congress and the Administration to hold themselves to the same standards as other Americans, not give themselves special treatment.

Unfortunately, this decision reveals the double-speak coming from the majority in Congress. In their rhetoric, the majority says say they want Americans to have health insurance like Members of Congress, but in reality they continue to treat themselves better than other Americans. Nationally, the Federal Employee Health Benefits Program offers over 280 private plans in total, so Members of Congress and their staff easily have a dozen health care plans to choose from, with a wide range in benefits, premiums, and cost-sharing.

But the bill they shoved through Congress on party lines does not give Americans FEHBP-like insurance. Rather, it includes heavy-handed federal mandates that increase the cost of health insurance for millions of Americans. Furthermore, repeatedly during the health reform debate, Congressional lawmakers refused to give up their health benefits to experience the same health care as millions of Americans. Democrats in Congress rejected Republican amendments that would have enrolled Members in Congress and political staff in Congress and the Administration in the Exchange. They also rejected amendments that would enroll Congress in Medicaid, despite that half of the uninsured coverage numbers in the law come by enrolling low-income Americans in Medicaid.[1]

No politician the law, and no politician or politically-appointed staffer should get special treatment. Tragically however, this one example of an unelected bureaucrat at OPM issuing a ruling on Section 1312 is an example of precisely the kind of special treatment and insider dealing the American people reject. Though Dr. Coburn opposed the new health law when it was debated in Congress, he expects Congress to live under the laws it passes.

Click here to read the CRS full report.