“In Fiscal Year 2015, the Exchange Authority’s budget was reclassified from the General Fund to a newly created fund, separate and distinct from ‘Federal Funds’.”
8/10/15, "U.S.House and Senate Claim Only 45 Employees-Then Sign Up 12,359 on Obamacare Small-Business Exchange," CNS News, Barbara Hollingsworth
"Both the U.S. Senate and House of Representatives certified that they had only 45 employees each in order to sign up for the District of Columbia’s Small Business Exchange [allowing 50 employees max]. But 12,359 - or 86 percent of the exchange's enrollees - are members of Congress, congressional staff members, and their spouses and dependents, according to an appeal filed with the D.C. Court of Appeals by Judicial Watch.
The
public interest law firm announced Monday that it is appealing the
February dismissal of its lawsuit [due to lack of standing] challenging congressional
participation in the Obamacare exchange even though the D.C. Exchange
Act limits enrollment to small companies with 50 or fewer employees.
“Congress obviously has far more than 50 employees,” Judicial Watch attorney Michael Bekesha pointed out in his opening brief. “It has thousands of employees.”
Congress
enrolled in the small business exchange when its previous coverage
under the Federal Employee Health Benefits plan was terminated by the
Affordable Care Act (ACA) and congressional employees stood to lose
thousands of dollars in “employer contributions” if they enrolled in the
District’s individual exchange.
According to documents obtained
by Judicial Watch through the Freedom of Information Act (FOIA), the
U.S. Senate and the U.S. House of Representatives both certified that
they “employ 50 or fewer full time equivalent employees.”
In October 2013, the Office of Personnel Management (OPM) issued a final rule that provides an “employer contribution” covering about three-quarters of the premiums of congressional employees enrolled in the small business exchange starting Jan. 1, 2014.
The OPM rule “allowed at least 12,359 congressional
employees and their spouses and dependents to obtain health insurance
through the Small Business Exchange…These 12,359 participants represent
an astonishing 86% of the Small Business Exchange’s total enrollment,”
the appeal states.
Judicial Watch filed the lawsuit last
October on behalf of Kirby Vining, a D.C. resident since 1986, who
objected to the expenditure of municipal funds to insure congressional
employees in an exchange that was established specifically for small
employers in the District....
Although the D.C. Health Benefit Exchange Authority conceded that
D.C. law limits participation in the exchange to small employers, it
argued in court that “the local statute must yield to the extent the
federal statute or regulation applies.”
In its motion to dismiss the
case, the authority also stated that the exchange “has been funded
exclusively by federal grants awarded to the District to establish its
Exchange, and more recently, an assessment imposed on health carriers
doing business in the District.”
In
dismissing the lawsuit, D.C. Superior Court Judge Herbert Dixon ruled
that Vining had no standing to challenge the OPM rule because he “has
not demonstrated a reasonable inference that municipal taxpayer funds
have been appropriated to defendant exchange authority to establish a
cognizable injury to maintain standing to bring his underlying
complaint.”
However,
in a budget report submitted to Congress, the Exchange Authority’s
actual budget for Fiscal Year 2013 ($10.9 million) and FY 2014 ($66.1
million) was identified as " ‘municipal monies’ as originating from the
District’s General Fund. No monies are identified as Federal Funds,
Private Revenue, or Intra-District Funds,” according to the appeal.
“In
Fiscal Year 2015, the Exchange Authority’s budget was reclassified from
the General Fund to a newly created fund, separate and distinct from
‘Federal Funds’,” it continued.
Dixon
also ruled that the OPM rule preempts the D.C. Exchange Act, noting
that “allowing members of Congress and their staff to participate in the
District’s small business health options program is authorized by
federal regulations.”
But
Judicial Watch argues in its appeal that the D.C. law cannot be
preempted because it is “completely consistent and entirely compatible”
with the federal law and in fact its “sole purpose is to implement
various provisions of ACA.”
“In
reality, the court ruled that a determination by a federal bureaucrat –
in this instance, the director of OPM – trumps the 50-employee limit of
the Exchange Act, at least with respect to Congress,” the group’s
appeal brief stated. “No lawful regulation – much less a regulation that
purports to delegate such authority to an agency head – can do that,
and the Court cites no legal authority whatsoever for their astonishing
conclusion that it can.”
Judicial
Watch president Tom Fitton said that allowing Congress to enroll in an
exchange meant for small businesses is both “unlawful and unethical.”
“It
is an abuse of District taxpayers to use D.C. funds to subsidize
illegal health insurance for Congress,” Fitton said in a statement. “It
is unlawful and unethical for District officials to use local dollars
to participate in Congress’s Obamacare fraud.
“The
highest court in the District of Columbia must affirm the right of
District taxpayers to protect their monies from being misappropriated by
corrupt District officials.”"
Related: Congress Insuring 15K Through Obamacare Exchange for ‘Small Businesses’ of 50 or Less, via Free Rep.
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