In fact, while both the OPM rulemaking and media reports have focused on premium payments, there are really two questions facing Congressional staff: (1) will staff be able to remain in their existing Federal Employee Health Benefit Plan (FEHBP) coverage, or will they be forced out of that coverage into an exchange plan; and (2) if staff must get exchange coverage, can the federal government actually pay exchange premiums, or will those premiums have to be paid by staff out of pocket?

The rulemaking addresses the second question in a way that will allow the government to pay staff premiums.  But the more important question is whether staff even need to switch out of existing coverage into an exchange.  Indeed, as demonstrated by IRS official Danny Werfel’s candid testimony before the House Ways and Means Committee on August 1, federal employees, including Hill staff, should not want to leave the robust FEHBP coverage they enjoy today for uncertain exchange coverage in the future.

What is the argument for Hill staff keeping FEHBP coverage?  While section 1312(d)(3)(D)(i) of the Affordable Care Act suggests that Congressional staff may only have access to coverage “created under this Act” or through an “Exchange,” there is another provision in the same law – the grandfathering clause – that may be more relevant.

That provision, found in section 1251(a), states: “nothing in this Act (or an amendment made by this Act) shall be construed to require that an individual terminate coverage under a group health plan or health insurance coverage in which such individual was enrolled on the date of enactment of [the Affordable Care] Act.”  In other words, if you are in FEHBP today, nothing in the Act, including section 1312(d)(3)(D), should be allowed to terminate your coverage come January 1, 2014.  While it might be argued that the two clauses conflict, that is where an OPM rulemaking could do the right thing, and apply Agency discretion to have section 1251 trump section 1312 – at least for all staff who were on the payroll on the date of enactment, and, in OPM discretion, also to staff employed on December 31, 2013.  Things may be a bit more ambiguous for staff hired next year, but that can be fixed later.

The above analysis is not new – the Congressional Research Service laid out the arguments in an April 2, 2010 Congressional Distribution Memorandum, on page 11.   While CRS does a good job explaining the pros and cons, the roadmap to maintain coverage is more than there. OPM was aware of the CRS analysis and used it for other reasons.  Yet, on the more significant question of whether Congressional staff can remain in their FEHBP coverage, OPM has failed to pick up the argument, much less run with it.It is not too late.

Every Congressional staffer who wants to stay in his or her FEHBP coverage should submit a comment to OPM and should urge the agency to apply the Affordable Care Act.  Comments should urge OPM to read every section of the Act – not just section 1312, and to give meaning to section 1251 – the grandfather clause.  The agency has the ability to fix this. 

Where there is an agency will, there is a regulatory way.  OPM has the chance to get this right, and not only answer who can pay premiums, but answer the more important question of whether Congressional staff can keep their FEHBP coverage.  Every other American who has enjoyed employer-based coverage will get to keep their existing plan come January 1.  If Congress intended to subject itself and staff to the same rules as every other American, then Congressional staff should be able to retain their existing FEHBP coverage as well.  The agency has clear authority to make this happen.  For all those staff who serve above and beyond, OPM should give them the right answer.    

Farber is a partner in the FDA and Life Sciences practice at the law firm of King & Spalding, where he specializes in health care regulatory and policy issues.  The views expressed in this article are his alone, and do not reflect those of King & Spalding or its clients.