By Pete Kasperowicz - 03/03/14 06:00 AM EST
This year, members of Congress and thousands of their staffers are finally signing up for health insurance provided by an ObamaCare exchange, fulfilling their commitment to live under the same system that millions of other Americans will use.
But unlike those millions of Americans, members and staff have a way to opt out of ObamaCare — retirement.
Under a rule issued by the Office of Personnel Management (OPM) late last year, members and staff who retire will be able to revert back to health coverage under the Federal Employees Health Benefits Program (FEHBP). That's the same coverage thousands of other federal workers can use when they retire.
The OPM had not included a retirement escape clause in its August draft of the rule on congressional coverage. But this flexibility was added in its Oct. 2 final rule, after "numerous commenters" called on the OPM to reconsider.
The OPM ultimately agreed with those commenters and said that, when read closely, the law only applies to members and staff "while they are employed in those positions."
A Feb. 18 report from the Congressional Research Service (CRS) puts it plainly. "[T]he final rule allows members and designated congressional staff who are eligible for retirement to enroll in a FEHBP plan upon retirement," the CRS summarized.
The OPM decided that forcing members and staff to stay on ObamaCare would give them "broader health insurance options" than other federal employees upon retirement, which would be unfair.
"We make this change for the additional reason that, otherwise, Members of Congress and congressional staff would have broader health insurance options in the Exchange in retirement than are available to other Federal annuitants," the OPM said.
But while the OPM views the ability to leave ObamaCare after retirement as an issue of fairness, the rule has the potential to once again raise the question of whether Congress has an undue amount of flexibility under the law.
Members and staff are already allowed to continue receiving government subsidies to buy health insurance under ObamaCare. The OPM made that decision in its August draft rule that was upheld in its final October rule.
Those subsidies have already been widely criticized as being too generous for members and their staff. Supporters of the subsidies, which include many members, say they are needed to avoid "brain drain," or a sudden exodus of top staffers.
The origin of language that ropes members and staff into ObamaCare came from Sen. Chuck Grassley (R-Iowa), who insisted members should have to live by the same rules others would face. But the language Grassley helped to develop was silent on government subsidies for health insurance, and the ability to revert to an FEHBP plan after retirement.
Congressional aides agreed that the absence of specific language on these issues in the legislation gave the OPM the wiggle room to provide for these flexibilities by rule.
But these flexibilities would appear to go against Grassley's intent. In September, Grassley told Roll Call that the point of the language was to treat members like everyone else who had to use an ObamaCare exchange.
"My goal, regardless of how the amendment was worded … was that we need to go into the exchange so that we would have to go through the same red tape as every other citizen," he said.