Both the U.S. Senate and House of Representatives certified that they had only 45 employees each in order to sign up for the District of Columbia’s Small Business Exchange. But 12,359 – or 86 percent of the exchange’s enrollees – are members of Congress, congressional staff members, and their spouses and dependents, according to an appeal filed with the D.C. Court of Appeals by Judicial Watch.
The public interest law firm announced Monday that it is appealing the February dismissal of its lawsuit challenging congressional participation in the Obamacare exchange even though the D.C. Exchange Act limits enrollment to small companies with 50 or fewer employees.
“Congress obviously has far more than 50 employees,” Judicial Watch attorney Michael Bekesha pointed out in his opening brief. “It has thousands of employees.”
Congress enrolled in the small business exchange when its previous coverage under the Federal Employee Health Benefits plan was terminated by the Affordable Care Act (ACA) and congressional employees stood to lose thousands of dollars in “employer contributions” if they enrolled in the District’s individual exchange.
According to documents obtained by Judicial Watch through the Freedom of Information Act (FOIA), the U.S. Senate and the U.S. House of Representatives both certified that they “employ 50 or fewer full time equivalent employees.”
In October 2013, the Office of Personnel Management (OPM) issued a final rule that provides an “employer contribution” covering about three-quarters of the premiums of congressional employees enrolled in the small business exchange starting Jan. 1, 2014.
The OPM rule “allowed at least 12,359 congressional employees and their spouses and dependents to obtain health insurance through the Small Business Exchange… These 12,359 participants represent an astonishing 86% of the Small Business Exchange’s total enrollment,” the appeal states.
Judicial Watch filed the lawsuit last October on behalf of Kirby Vining, a D.C. resident since 1986, who objected to the expenditure of municipal funds to insure congressional employees in an exchange that was established specifically for small employers in the District.
“Congress authored the law [ACA], and is going to rather questionable lengths to avoid compliance with the law it drafted,” Vining said.
Although the D.C. Health Benefit Exchange Authority conceded that D.C. law limits participation in the exchange to small employers, it argued in court that “the local statute must yield to the extent the federal statute or regulation applies.”
In its motion to dismiss the case, the authority also stated that the exchange “has been funded exclusively by federal grants awarded to the District to establish its Exchange, and more recently, an assessment imposed on health carriers doing business in the District.”
In dismissing the lawsuit, D.C. Superior Court Judge Herbert Dixon ruled that Vining had no standing to challenge the OPM rule because he “has not demonstrated a reasonable inference that municipal taxpayer funds have been appropriated to defendant exchange authority to establish a cognizable injury to maintain standing to bring his underlying complaint.”
However, in a budget report submitted to Congress, the Exchange Authority’s actual budget for Fiscal Year 2013 ($10.9 million) and FY 2014 ($66.1 million) was identified as ” ‘municipal monies’ as originating from the District’s General Fund. No monies are identified as Federal Funds, Private Revenue, or Intra-District Funds,” according to the appeal.
“In Fiscal Year 2015, the Exchange Authority’s budget was reclassified from the General Fund to a newly created fund, separate and distinct from ‘Federal Funds’,” it continued.
Dixon also ruled that the OPM rule preempts the D.C. Exchange Act, noting that “allowing members of Congress and their staff to participate in the District’s small business health options program is authorized by federal regulations.”
But Judicial Watch argues in its appeal that the D.C. law cannot be preempted because it is “completely consistent and entirely compatible” with the federal law and in fact its “sole purpose is to implement various provisions of ACA.”
“In reality, the court ruled that a determination by a federal bureaucrat – in this instance, the director of OPM – trumps the 50-employee limit of the Exchange Act, at least with respect to Congress,” the group’s appeal brief stated. “No lawful regulation – much less a regulation that purports to delegate such authority to an agency head – can do that, and the Court cites no legal authority whatsoever for their astonishing conclusion that it can.”
Judicial Watch president Tom Fitton said that allowing Congress to enroll in an exchange meant for small businesses is both “unlawful and unethical.”
“It is an abuse of District taxpayers to use D.C. funds to subsidize illegal health insurance for Congress,” Fitton said in a statement. “It is unlawful and unethical for District officials to use local dollars to participate in Congress’s Obamacare fraud.
“The highest court in the District of Columbia must affirm the right of District taxpayers to protect their monies from being misappropriated by corrupt District officials.”