Senator Ron Johnson (R-WI), the chairman of the Senate Homeland Security and Governmental Affairs Committee, recently issued a subpoena to the Office of Personnel Management for the agency’s failure to comply with his requests for information regarding making monetary contributions towards lawmakers’ health insurance.
Johnson had previously sent two letters to the agency requesting documentation showing how OPM had managed to circumvent a regulation under the Affordable Care Act (A.K.A. ObamaCare) requiring that Members of Congress purchase their health insurance through a federal or state exchange.
Despite this provision of the law, in 2013, OPM issued a regulation that allowed lawmakers and their staff to buy health insurance offered by a District of Columbia Small Business Health Options Plan (SHOP) and also receive an employer contribution from the federal government to do so.
Johnson wrote in his August 2017 letter to Acting OPM Director Kathleen McGettigan:
Section 1312 of the Affordable Care Act required that Members of Congress and their staff purchase health insurance on a federal or state exchange.
On March 24, 2010, the Senate voted on an amendment that if approved would have allowed an employer contribution. The amendment was defeated by a 43 to 56 margin.
OPM subsequently issued a regulation allowing Members of Congress and their staff to purchase health insurance on the SHOP exchange. The SHOP exchange is intended for employers with less than 50 employees, yet Congress employs more than 16,000 people.
OPM’s regulation had the effect of classifying Congress as a small business with less than 50 employees, permitting the federal government to provide an employer contribution to Members of Congress and staff towards the purchase of health insurance in an amount equal to the government’s contribution offered to federal employees in the Federal Employee Health Benefits Program. Without this classification, Members of Congress and their staff would be required to purchase health insurance on the individual exchange, where no employer contributions are permitted.
Johnson said in a follow up letter sent last Friday that OPM has not satisfactorily responded to his requests, forcing the subpoena.
“The American people have a right to know how and why OPM drafted a final regulation that allows Members of Congress and staff to continue to receive an employer contribution, paid by the taxpayer, without authorization in law,” wrote Johnson. “I regret that OPM’s lack of cooperation with the Committee’s oversight has required me to issue a subpoena.”
He gave OPM a new deadline of January 5, 2018 to provide the information. The letter did not state what the consequence would be if the agency again fails to comply with the Senate Committee’s request.
A copy of Johnson’s latest letter is included below.
Ms. Kathleen McGettigan
Office of Personnel Management
1900 E Street NW
Washington, DC 20415-1000
Dear Acting Director McGettigan:
Pursuant to its authority under section 12(e) of S. Res 62 (115th Congress), the Committee on Homeland Security and Governmental Affairs is investigating the development of Office of Personnel Management’s (OPM) 2013 regulation that enabled Members of Congress and their staff to purchase health insurance from the District of Columbia Small Business Health Options Plan (SHOP) exchange and receive an employer contribution. To assist the Committee with its investigation, please provide the documents requested in the enclosed subpoena by January 5, 2018. In order to expedite the production of documents that are responsive to the enclosed subpoena, the Committee requests that you submit responsive material as it becomes available.
Congress has sought information about OPM’s development of this regulation for several years. In the 113th Congress and the 114th Congress, OPM did not satisfactorily respond to these requests. I renewed this oversight in the 115th Congress. On August 16, 2017, I wrote to you to request all OPM material concerning the SHOP regulation. On October 4, 2017, after receiving an insufficient response containing material already available to the Committee, I again wrote to you to reiterate my request and inform you that the Committee could consider compulsory process if OPM did not produce the entirety of the requested material.
To date, OPM’s compliance with the Committee’s inquiry has been deficient. In the four months since my initial request, OPM has produced a limited number of responsive documents, made available for in camera review only a small subset of responsive material, and refused to produce some documents specifically identified by the Committee during the in camera review process. OPM’s refusal to produce these documents, after months of delay, has frustrated the Committee’s oversight efforts.
The American people have a right to know how and why OPM drafted a final regulation that allows Members of Congress and staff to continue to receive an employer contribution, paid by the taxpayer, without authorization in law. The limited information available to the Committee shows that OPM initially believed it could not provide an employer contribution to Members of Congress and staff. The Committee requires the full universe of material to understand fully OPM’s development of the regulation.
I regret that OPM’s lack of cooperation with the Committee’s oversight has required me to issue a subpoena. To ensure the Committee has a full understanding of the development of OPM’s regulation, and as detailed in the enclosed subpoena schedule and instructions, please produce all material that relates to OPM’s continuation of an employer contribution toward the health insurance for Members of Congress and staff. This universe broadly includes, but is not limited to, draft regulations, internal deliberations, draft policy proposals, interagency communications, legal guidance, docket management system (DMS) material, stakeholder communications, and similar material.
If you have any questions relating to this subpoena, please contact Committee staff at 202-224-4751. Thank you for your attention to this matter.