Obamacare may not apply to all congressional staff after all.

If only all government regulations included a “decide whether you want to follow it” clause.

Hard as it is to believe, one such provision is included in the Obamacare regulation governing how the law applies to congressional staffers.

Under the proposed rule from the Office of Personnel Management (OPM), all congressional offices may decide whether their employees are subject to the requirements of the law. What’s more, the regulation explicitly states that the OPM “will not review or overturn these determinations.”


At issue is a disagreement over whether the requirement in Obamacare for congressional staffers to purchase health insurance through the exchanges applies to staffers in committee and leadership offices (as opposed to members’ personal offices). In the same announcement, OPM said it will continue subsidizing all congressional staffers’ health-care premiums, whether they remain on the federal-employee plan or move to the exchanges, though this wasn’t explicitly provided for in Obamacare. But even under the proposal, where staffers will be getting their insurance remains unclear.

According to a GOP aide involved in the matter, OPM has argued in behind-the-scenes discussions that committee staffers and leadership staffers are exempt from the requirement and can continue their current health-care arrangements. Republicans involved in the negotiations have contended the requirement applies to all staffers.


Rather than deciding one way or the other, OPM has put the decision on each office and said it won’t interfere with whatever decision they make.


“As part of their responsibility to make this determination, the employing offices shall be the final authority with respect to the determination for each individual. Under these proposed regulations, OPM will not review or overturn these determinations,” the regulation says.

While this is intended to address the disagreement over committee and leadership staffers, there’s nothing to prevent any individual congressional office from just deciding not to follow the law, since its decision would be deemed “final” and not be subject to any review.

The GOP aide says that Republicans have already decided internally that they will apply the requirement to purchase insurance from the exchanges to all staffers. But some Democrats are contemplating making use of the loophole. Senior Democratic aides for minority leader Nancy Pelosi and House Energy and Commerce ranking member Henry Waxman, including several who receive their health care through Medicare, have expressed deep anger in discussions over OPM’s regulation, the source adds.


A senior Democratic leadership aide says there is “no question” that your average, run-of-the-mill congressional aide — one working in a congressman’s personal office and paid solely out of his “Members’ Representational Allowance” — is bound by the requirements.


The aide adds that Democratic leadership is pushing for “all” staffers to abide by the requirements but says it is ultimately up to Republican leaders. “To some extent, this will be up to the speaker’s office and/or House administration chair about what determinant they use, but we believe everyone should go in as Senator Grassley’s poorly written amendment intended,” the aide says.

However, at least some Democrats disagree with their leadership and would like to leave certain aides unaffected, sources say, and the decision is causing dissension behind the scenes.

OPM’s just-issued regulation is currently only a proposal, and congressional offices will have time after it is finalized to make decisions on whom they deem the law applies to.

An internal GOP review of the OPM regulation produced by the House Ways and Means Committee and obtained by National Review Online also finds numerous and embarrassing flaws in OPM’s new proposal (emphasis added):

The proposed regulations and associated fact sheet and FAQs make one fact quite clear: OPM is still not ready and has not addressed many concerns: ‐ “Our goal is to ensure that Members of Congress and affected staff have as smooth as possible a transition …”


Further, the document explains, “OPM remains unclear on how Members of Congress and designated staff on Medicare will enroll in the Exchanges. ObamaCare did not contemplate coordination between the Exchanges and Medicare, and OPM has offered no guidance on how this will work.”

OPM “cannot answer” when staffers will be required to begin enrolling in the exchanges, the memo says, and “does not know how the Exchange enrollment process will work for Members of Congress and staff.”

— Jonathan Strong is a political reporter for National Review Online.