Senate Republicans included a provision that exempts members of Congress and their staff from part of their latest health care plan.
This exemption could have the effect of ensuring that members of Congress have coverage for a wider array of benefits than other Americans who purchase their own coverage.
A Senate Republican aide confirmed that the exemption existed but was unable to comment as to the specific effect it would have. The aide said it was included to ensure that the bill hewed to the chamber’s strict reconciliation rules that limit the policies this health bill can include.
The exemption is similar to the one that existed in the House health bill. After Vox reported on its existence, the House voted to close the loophole — and the Senate aide expected their chamber to follow the same path.
An exemption mandates that members of Congress have access to the essential health benefits
The revised Senate health bill draft released Thursday lets health insurers offer plans that do not cover the Affordable Care Act’s essential health benefits, which requires insurers to include a wide array of benefits such as maternity care and mental health services.
Insurers can offer plans without these benefits — unless they’re selling coverage to members of Congress and their staff, who are required to buy coverage on the health law marketplaces. The exemption says this part of the law still applies to any plans sold to Congress.
The language of this exemption is very similar to the exemption in the House repeal bill. It appears on page 167 of the bill, in this paragraph (bolding my own):
(d) NON-APPLICABLE PROVISIONS DESCRIBED. — The provisions described in this subsection are the following:
(1) Subsection (d) of section 1302 of the Patient Protection and Affordable Care Act (42 U.S.C. 6 18022); except for the purposes of applying section 1302(b) to sections 1252, 1301(a)(2), 1312(d)(3)(D), 1331, 1333, and 1334 of such Act, subsection (b) of such section 1302; and subsection (c)(1)(B) of such section 1302.
To decode that language a little bit: The bolded text says that section 1302(b) will still apply to certain plans. Section 1302(b) is the part of the Affordable Care Act that spells out what is included in the essential health benefits.
The section then goes on to spell out which plans get to keep essential health benefits. It includes the plans specified in 1312(d)(3)(D) of the Affordable Care Act — the section that covers the health plans of members of Congress and their benefits.
Congress does not get an exemption in this bill from plans that ban preexisting conditions or charge sick people higher premiums. The exemption is relatively narrow, and the expert who pointed it out to me (Timothy Jost of Washington and Lee University) is somewhat puzzled about how this would work in practice.
The Senate draft, for example, would still allow insurers to charge higher prices to those with preexisting conditions — when selling to Congress as well as to the rest of the public. This could create an odd scenario where the plans that Congress is eligible for have to cover a wide array of benefits but can also deny coverage or charge more to those expected to have higher costs.
Reconciliation rules mandate that the Senate bill only include policies under the jurisdiction of two committees: Finance and HELP (Health, Education, Labor, and Pensions). The Senate aide I spoke with explained that the regulation of congressional health plans falls under the jurisdiction of the Senate Budget Committee, and therefore changes to their benefits could not be included in this bill. A fuller explanation is available here from Factcheck.org, outlining the jurisdictional issues raised by reconciliation.
Read my full explainer on the Republican bill here.
Correction: an earlier version of this story misidentified the committees’ with jurisdiction over the Senate health bill. They are the Finance and HELP Committees.