Baffled by Health Plan? So Are Some Lawmakers;Congress losses Their Health Plans?

By ROBERT PEAR Published: April 12, 2010

WASHINGTON — 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.

The confusion raises the inevitable question: If they did not know exactly what they were doing to themselves, did lawmakers who wrote and passed the bill fully grasp the details of how it would influence the lives of other Americans?

The law promises that people can keep coverage they like, largely unchanged. For members of Congress and their aides, the federal employees health program offers much to like. But, the report says, the men and women who wrote the law may find that the guarantee of stability does not apply to them.

“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.

Moreover, it says, the strictures of the new law will apply to staff members who work in the personal office of a member of Congress. But they may or may not apply to people who work on the staff of Congressional committees and in “leadership offices” like those of the House speaker and the Democratic and Republican leaders and whips in the two chambers.

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.

Congress must now decide what steps, if any, it can take to deal with the problem. It could try for a legislative fix, or it could adopt internal policies to minimize any disruptions.

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.”

The White House said last month that Mr. Obama would voluntarily participate in the health insurance exchange, though the law does not require him or other administration officials to do so. His participation as president may depend on his getting re-elected in 2012.

Representative Jason Chaffetz, Republican of Utah, said lawmakers were in the same boat as many Americans, trying to figure out what the new law meant for them.

“If members of Congress cannot explain how it’s going to work for them and their staff, how will they explain it to the rest of America?” Mr. Chaffetz asked in an interview.

The provision governing members of Congress can be traced to the Senate Finance Committee. When the panel was working on the legislation last September, Senator Charles E. Grassley, Republican of Iowa, proposed an amendment to require that elected federal officials and all federal employees buy coverage through an exchange, “rather than using the traditional Federal Employees Health Benefits Program.”

A scaled-back version of the amendment, applying to members of Congress and their aides, was accepted in the committee without objection.

The federal employees program, created in 1959, now provides coverage to eight million people and, according to the Congressional Research Service, is the largest employer-sponsored health insurance program in the country.