Congress Exempt from Health Bill?

Q: Does the health care bill specifically exempt members of Congress and their staffs from its provisions?

A: No. This twisted claim is based on misrepresentations of the House and Senate bills, neither of which exempts lawmakers.

We’ve received many questions about claims that House and Senate members would be exempt from the health care legislation taking shape in Congress. But neither the House nor the Senate bill exempts Congress from its provisions.

Members of Congress are subject to the legislation’s mandate to have insurance, and the plans available to them must meet the same minimum benefit standards that other insurance plans will have to meet. "All plans would have to follow those requirements by 2019," Aaron Albright, press secretary for the House Committee on Education and Labor, told FactCheck.org. "People actually believe we wrote in the bill that Congress exempts itself from these requirements. That falsehood has been going around since the very beginning."

How did the notion of an "exemption" get started? So far as we can find, the first to make the "exempt" claim was columnist John Fund, who used the word in a June Wall Street Journal opinion piece to describe a draft of the Senate Health, Education, Labor and Pensions Committee bill. Fund wrote that the proposal "would specifically exempt Members of Congress from many of [the Obama plan’s] provisions." But that was a misrepresentation.

Rather than listing "many" exemptions, Fund pointed only to page 114. That section stated that individuals who buy their own insurance and small firms (size to be determined) would be eligible to participate in state-based exchanges, which would offer a range of health insurance plans for purchase. Those who already get insurance through Medicare, Medicaid, the military’s Tricare insurance program, or the Federal Employees Health Benefits Program wouldn’t be eligible. All federal employees, including members of Congress, fall under the FEHBP. Those who have coverage from a large employer wouldn’t be eligible, either, unless their coverage didn’t meet minimum benefits criteria or was deemed to be unaffordable.

The exchanges are designed for those who can’t get adequate or affordable coverage. By Fund’s logic, most Americans would be "exempt" from the privilege of buying insurance through the exchanges — not just members of Congress. Fund further claimed that everyone except Congress "would be shunted into health insurance plans under the straightjacket of whatever the government decides is a ‘basic’ plan." But that was also a misrepresentation. The "basic" plan’s minimum benefit standards would have been just that — a minimum. The draft actually called for three tiers of plans to be offered through the exchanges, two of them with more benefits than the "basic" plan.

Even the speculation that Congress’s FEHBP plans would be better than those offered through the exchanges is outdated. The bill passed by the Senate actually requires members of Congress and their staffs to get coverage through the exchanges.

The Senate bill now says:

H.R. 3590: D) MEMBERS OF CONGRESS IN THE EXCHANGE.— (i) REQUIREMENT.—Notwithstanding any other provision of law, after the effective date of this subtitle, the only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are— (I) created under this Act (or an amendment made by this Act); or (II) offered through an Exchange established under this Act (or an amendment made by this Act).

The provision comes from an amendment by Republican Sen. Chuck Grassley of Iowa.

"Exempt" from Federal Insurance Plan?

The "exempt" claim also evolved into the idea that everyone except members of Congress would somehow be forced into a new federal insurance plan, the so-called "public option." But that was never true.

At this point, the Senate-passed bill would not even create a public option, and it is very much in doubt whether the final House-Senate compromise will contain one. Even the new federal insurance program contained in the House bill, should it survive, would not cause many Americans to switch from their current coverage, according to independent experts both in and out of government.

Republicans, fighting to head off any "public option," sometimes exaggerated its likely effect. Republican Sen. Tom Coburn of Oklahoma, for example, claimed that many millions of currently insured Americans would be forced to switch to the federal plan against their will. "Anywhere from 17 million to 131 million Americans will be put into the public option according to independent estimates," a background document on Coburn’s Web site claims, adding "yet few members of Congress or other government official are likely to be covered by the plan. If Washington politicians expect millions of other Americans and their families to be insured under this program, they should subject themselves to the same plan." Coburn proposed an amendment to require members of Congress to sign up for the federal insurance plan, should it become law.

But Coburn’s 131 million figure is incorrect. It is based on an outdated analysis of how a federal plan might have been structured, not on what is actually in the House or Senate bill. And even when the Senate bill contained a "public option," it wasn’t nearly as attractive as Coburn claimed. The nonpartisan Congressional Budget Office estimated that only 6 million Americans would join the plan by 2019 under the House bill, and 3 million to 4 million under the old Senate bill. The Lewin Group’s most recent analysis estimates that 19.1 million would enroll in the federal plan under the House bill and 15.1 million under the provision then contained in the Senate bill.

Furthermore, most of those expected to enroll don’t currently have any coverage. The Lewin analysis estimated only a "small shift" of those who currently have private insurance moving to the federal plan. (The Lewin Group, whose reports have been cited by both political parties, is a subsidiary of UnitedHealth Group but says it operates with "editorial independence.")

As for members of Congress under the House bill? They would be eligible to buy into the federal plan. Albright, of the Education and Labor Committee, told us the "public option" would be available to members of Congress, if they wanted to choose it.

–Lori Robertson

Update, April 19: After health care overhaul legislation was signed into law, the "exempt" claim morphed into one saying that some congressional staffers would be "exempt" from the amendment requiring them to get insurance through the exchanges. In the final legislation, the amendment included was written by Sen. Tom Coburn, and it says that congressional "staff" are considered to be "full-time and part-time employees employed by the official office of a Member of Congress, whether in Washington, DC or outside of Washington, DC." Coburn now says that definition wouldn’t apply to those working for committees or leadership staff, and a Congressional Research Service report says that’s a possibility. See our article "More Malarkey About Health Care" for more details.