January 10, 2014
This week, Senator Ron Johnson (R-WI) filed a lawsuit in U.S. District Court challenging the administration’s final rule that enables members of Congress and their staffs to receive an employer contribution from the federal government to help pay for the new health care plans they purchase through public exchanges under the Affordable Care Act. According to Sen. Johnson, by passing the ACA Congress "cut themselves off from the option of paying for health care with pretax dollars, the way many Americans will continue to do through employer-supplied plans." Yet, a final rule published last year by the federal Office of Personnel Management enables the federal government to continue to contribute to employee coverage that is purchased by members of Congress and its staff through a small business public exchange created by Washington, D.C.—in effect declaring the federal government, one of the country’s largest employers, to be a small employer, according to Sen. Johnson. Under the OPM rule, the federal government is the only large employer currently allowed to do so. The issue continues to simmer in Congress (see H.R. 3071 and S. 1497), and the lawsuit furthers the debate over why the employees of Congress are able to purchase subsidized health care in the ACA exchanges but not the employees of private sector employers. Should the courts ultimately uphold the rule, a precedent may be set for private sector employee subsidies in public exchanges.