Congress Insuring 15K Through Obamacare Exchange for 'Small Businesses' of 50 or Less

By Barbara Hollingsworth | June 24, 2015 | 10:08 AM EDT

House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-UT). (AP photo)

( – "There are roughly 15,000 covered lives from Congress” currently enrolled in the D.C. Health Link’s small business exchange, a spokesman for the District of Columbia Health Benefit Exchange Authority told

The 2010 Patient Protection and Affordable Care Act set up two kinds of health insurance exchanges: one for individuals and one for small businesses. 

Under the law, the term "small employer" applies to those with "at least 1 but not more than 100 employees on business days during the preceding calendar year and who employs at least 1 employee on the first day of the plan year." An exception allows states to limit "small employers" to companies with 50 or fewer employees through 2015.

The D.C. small business exchange currently limits enrollment to employers with "1 to 50 full-time equivalent employees."

Under Obamacare, individuals only qualify for a federal subsidy to buy health insurance if they buy that insurance through the individual exchange and their income less than 400 percent of the Federal Poverty Level ($97,000 for a family of four). Most members of Congress make $174,000 per year--paid out of the federal Treasury.

The law does not allow employers to make an employer contributions to health insurance plans bought through the individual exchange. However, small businesses purchasing insurance through a small business exchange are allowed to contribute to their employees' health insurance premiums.

The Affordable Care Act terminated Congress' previous health insurance plan. In order to qualify to make "employer contributions" to the health insurance costs of members of Congress and their staff, Congress had to certify that each of its legislative chambers was a small business with no more than 50 employees.

So taxpayers currently subsidize premiums, up to $11,378 per year, for members and congressional staff who are enrolled in D.C.'s small business exchange, even though 94 percent of voters believe Congress should be required to live under the same Obamacare rules as everybody else.

A group of conservative organizations is urging the House Oversight and Government Reform Committee to find out exactly who is responsible for “the false claim that the House and Senate are small businesses.”

“Nothing makes the American people angrier than members of Congress giving themselves and their staff special benefits – especially when those benefits apparently rely on the false claim that the House and Senate are small businesses,” according to the group’s June 15 letter to committee chairman Jason Chaffetz (R-UT).

“Under House rules, you have the authority to issue a subpoena for these documents without a committee vote. On behalf of the members and supporters of our organizations and millions of other Americans keenly interested in this issue, we urge you to do so,” the letter stated.

It was signed by leaders of American Commitment, the Club for Growth, ForAmerica, Citizens Against Government Waste, FreedomWorks, Heritage Action for America, Tea Party Patriots, and other conservative organizations.

“There are specific provisions in the Obamacare law that terminate the coverage that members of Congress and their staff previously had under the Federal Employee Health Benefit plan and require them to enroll in Obamacare. And if you read the provisions in a straightforward way, they really require them to pay their own premiums and to lose the benefit of having employer-provided health care entirely,” Phil Kerpen, president of American Commitment, told

“But when it came time for those provisions to actually be implemented in late 2013, there was a collective wailing and gnashing of teeth up on Capitol Hill, and they were saying they couldn’t possibly follow the law as written because ‘we’re going to lose all of our best staff’.”


 “But we’ve subsequently learned that there was a big practical logistical problem with that, because there was no mechanism for an employer contribution in the regular Obamacare exchange. It doesn’t exist because it’s not permitted under the law.”

Following a closed door meeting, President Obama and the leaders of both parties “came up with this idea of going into the exchange, but having the taxpayer-financed premiums follow them,” Kerpen explained.

“And that’s where these false small business declarations came in because in order to make good on this deal that they made with Obama, where taxpayers would be compelled to keep paying for their premiums, they decided to go into the small business exchange in D.C. instead of the regular exchange because the small business exchange does have a mechanism for an employer contribution.

“The problem of course, is that they’re not a small business, so they had to lie to execute this plan.” Kerpen added. “They had to file documents falsely certifying that the entire United States Senate, with 100 senators and thousands of staffers, was an employer with less than 50 employees, and the entire House of Representatives, with 435 members and thousands of staffers, was another small business with less than 50 employees.

“And they went into the small business exchange in that way, [so] they were able to get taxpayers to continue to pay for their premiums.”

In April, Senate Small Business & Entrepreneurship Committee chairman David Vitter (R-LA) tried to subpoena the certification documents from the D.C. exchange. “We are seeking accountability within the body that creates this nation’s laws,” Vitter said at the time. But Vitter’s subpoena attempt failed in committee on a 5-14 vote.

In February, D.C. Superior Court Judge Herbert Dixon dismissed a lawsuit filed by Judicial Watch also challenging congressional enrollment in the small business exchange.  Judicial Watch obtained copies of the certification documents under the Freedom of Information Act, but the names of the individuals who signed them were all redacted.

After acknowledging that Congress cannot be considered a small business under D.C. law, Dixon ruled that the “exchange authority’s action in allowing members of Congress and their staff to participate in the District’s small business health options program is authorized by federal regulations” issued by the Office of Personnel Management (OPM).

“They effectively side-stepped the requirement that they lose the taxpayer-funded coverage they used to have like anyone else losing employer-paid coverage and go into Obamacare, which is what they themselves passed,” Kerpen told asked Kerpen if it was “asking too much to expect Congress to investigate itself.”

“Unless Chairman Chaffetz thinks that it’s perfectly reasonable and legitimate for the House of Representatives to hold itself out as a small business with less than 50 employees, I think it would be an appropriate thing for him to investigate,” Kerpen replied. “And I also think that this is an ongoing fraud on the part of the D.C. government as well.

“The District of Columbia Health Exchange is participating in this. And when they accepted employers who said ‘We are small businesses with less than 50 employees,’ it should have raised some alarm bells for them when employee # 51, and 100, and 1,000 and 10,000 signed up under that declaration. And his committee also has oversight responsibility for the District of Columbia, so I think it’s perfectly appropriate for him to look into this.

“And I understand that it would ruffle feathers for whoever’s responsible up there, whether it goes up into the Republican leadership or what staffer’s name is behind those black redaction marks. But I don’t think that’s a good reason not to do it,” Kerpen said.

Related: Judicial Watch: Congress Obtained Obamacare Coverage, Subsidies 'Through Fraud'

Related: Obamacare Reg Treats Congress That Spent $3.5 Trillion as a 'Small Business'

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