Insurance

POLICY: Special Treatment for Federal Lawmakers under the Affordable Care Act — Judge Axes Sen.’s Suit Over ACA Exemptions For Congress

By Linda Chiem, Law360

The DPC Consumer Guide -- Now Available for office/clinic use and and an educational/marketing resource for your patients.Law360, New York (July 22, 2014, 12:29 PM ET) — A Wisconsin federal judge on Monday tossed a suit by by Sen. Ron Johnson, R-Wis., seeking to block allegedly special treatment for federal lawmakers under the Affordable Care Act, saying the lawmaker couldn’t prove he suffered an injury to have standing to bring suit.

Chief U.S. District Judge William C. Griesbach granted the U.S. Office of Personnel Management‘s motion to dismiss the suit for lack of standing, rejecting Johnson’s challenge to an OPM rule stating that the government could contribute to the cost of health benefits for members of Congress and their staff.

Johnson and his legislative counsel, Brooke Ericson, had sued OPM alleging the rule wrongfully created a loophole for exemption from the ACA.

“I conclude that any injury traceable to the contested regulation is too speculative and undeveloped to constitute a redressable injury,” the judge said.

Judge Griesbach didn’t buy Johnson’s argument that the regulation imposes an administrative burden on him and his staff by forcing them to determine which members of his staff are “congressional staff” within the meaning of the regulation and the ACA on a yearly basis.

“Plaintiffs portray the process of classifying employees as though it necessarily involves a series of labor-intensive factual and legal determinations about each staff member — a bona fide administrative burden — but absent from their argument is any suggestion that such a process is actually followed or required,” the judge said.

The judge also rejected Johnson’s arguments that the OPM rule would make him and his office complicit in violating the ACA, thus harming his credibility and relationships with his constituents, and that it deprived Johnson of the status of solidarity and equal treatment with his constituents that the ACA created.

“Nothing within the regulation requires participation in any scheme — illegal or not — because it does not mandate any action whatsoever,” the judge said. “Accordingly, plaintiffs are not being forced to do anything illegal. In sum, none of the phenomena cited by plaintiffs would create the kind of administrative burden that could be expected to give rise to a redressable injury.”

In a statement on Monday following the dismissal of the suit, Johnson said President Barack Obama’s administration violated its own signature health care law by giving special treatment to members of Congress and their staffs.

“I believe that this executive action by the Obama administration is unlawful and unfair, and that it is only one of many examples of this president’s abuse of his constitutional duty,” he said. “Unfortunately, those actions will go unchallenged for now, because the district court granted the administration’s motion to dismiss based on the legal technicality of standing.”

Johnson said he will review the court’s decision before figuring out a next step with the challenge.

“By its decision [on Monday], the court has chosen not to address the important constitutional issues at hand,” he said. “My legal team and I will carefully review the decision before determining our next step in this important constitutional dispute.”

Johnson launched his suit in January targeting OPM and its director, Katherine Archuleta, over the provision of the health care law that requires members of Congress and their staffs to buy health insurance through the new exchanges established by the ACA.

Johnson alleged that a rule issued by the OPM in October allowed the government to contribute to the cost of the health benefits for members of Congress, giving them an advantage to snag more generous benefits. Essentially, OPM created a loophole that allowed congressional staff an exemption from the ACA’s provisions, Johnson’s suit alleged.

The plaintiffs are represented by Richard M. Esenberg of the Wisconsin Institute for Law & Liberty.

OPM is represented by Stuart F. Delery, James L. Santelle, Sheila M. Lieber, Susan K. Rudy and James C. Luh of the U.S. Department of Justice.

The case is Johnson et al. v. U.S. Office of Personnel Management et al., case number 1:14-cv-00009, in the U.S. District Court for the Eastern District of Wisconsin.

–Additional reporting by Daniel Wilson and Kira Lerner. Editing by Katherine Rautenberg.

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