You don’t have to read deep into the PPACA to find the provision. It’s in Sec. 1312, subsection (d)(3)(D), the section titled "Consumer Choice" that deals with the establishment of the health plan exchanges.
The relevant passage reads as follows:
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).
I can decode that, but the language is pretty plain to me (fair disclosure, I am a researcher of health plans for the healthcare industry). It says that Congress and their staffs must get their coverage from the exchanges. But look at that passages that begins "after the effective date of this subtitle. . ."
That means the only place Congress can get its health coverage is the exchanges . . . but that part about the "effective date" can be interpreted to take effect immediately! So that may mean that on the day the law was signed, Congress and its staff became — ta-da — uninsured, and won’t be able to buy coverage until the exchanges launch in 2014. That’s a long time to be uninsured.
The Congressional Research Service has passed around a memo, trying to interpret the meaning of this provision of the PPACA, and subsequent statutes from HHS, but I can summarize for you. When the memo says, "It is unclear whether members of Congress and Congressional staff who are currently participating in F.E.H.B.P. may be able to retain this coverage," what it really means is, "Holy crap, this doesn’t look good."
Oh, the delicious irony.
The real law that’s at work here is the law of unintended consequences. Likely, whoever wrote this provision of the law intended to fulfill the much-promoted piece of political grandstanding offered by Republicans, Democrats and President Obama himself, that if the exchanges are so great, Congress should get its healthcare coverage from the same place where Americans were forced to get theirs. Maybe they intended to tighten up the legal language, or maybe they intended to scrap the provision altogether.
It appears . . . they just forgot.
Doh!!!
I am not a lawyer, so if anyone with any real expertise in this area wants to offer a different interpretation, have at it in the comments. My guess is Congress will quietly fix this with another "fix" to the PPACA. It’s obviously in their own self-interest to do so, but they’ll have to move quickly. Under current law, if you go without creditable coverage for more than 63 days, and you join a new group plan, your plan can exclude coverage of any pre-existing conditions for up to a year, and I don’t think this practice is outlawed by the PPACA until 2014.
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