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Court blocks PPACA congressional benefits suit

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A lawmaker who opposes the Patient Protection and Affordable Care Act (PPACA) is having trouble getting federal courts to consider his objections to the law’s effects on congressional health benefits. 

A three-judge panel at the 7th U.S. Circuit of Appeals ruled Tuesday that Sen. Ron Johnson, R-Wis., and one of Johnson’s aides, Brooke Ericson, have no standing to sue over U.S. Office of Personnel Management (OPM) regulations implementing the parts of PPACA that affect health benefits for members of Congress and some of those members’ aides.

The panel that reviewed the case, Ron Johnson and Brooke Ericson vs. U.S. Office of Personnel Management and Katherine Archuleta (Case Number 14-2723), upheld an earlier ruling, issued by a judge in the Eastern District of Wisconsin. The district court judge, William Griesbach, said Johnson and Ericson had no standing to bring their case.

PPACA requires members of Congress and some aides to get their health benefits from a PPACA public exchange. OPM adopted a regulation saying the government would pay help for coverage that the affected lawmakers and aides get from the locally run exchange in the District of Columbia. 

Before PPACA took effect, the affected people would have gotten their health benefits from the Federal Employee Health Benefits Program (FEHBP). The government normally pays about 72 percent of the employees’ share of the cost of FEHBP coverage.

Johnson and Ericson argued that the OPM regulation imposes administrative burdens, by forcing them to decide which members of Johnson’s staff must use exchange coverage; that the regulation deprives them of the right to treatment equal to the treatment that Johnson’s constituents receive; and that the regulation causes Johnson “reputational and electoral injury,” by forcing him to engage in conduct that he believes to be illegal, and to receive “special treatment.”

Judge Joel Flaum, who was appointed to his seat by President Reagan, wrote in an opinion for the panel that Johnson and Ericson are seeking an end to the government subsidy for congressional exchange coverage, and that the subsidy has nothing to do with the administrative benefits. A court could kill the OPM regulation as a whole, and that would eliminate the alleged administrative burden, but the fact that killing the whole regulation would eliminate the administrative burden does not mean concerns about the administrative burden give Johnson and Ericson standing to challenge the rest of the regulation, Flaum writes.

Moreover, Johnson and Ericson can’t assert a right to equal treatment with Johnson’s constituents, because they have no statutory right to equal treatment, and they have no standing to sue on constitutional grounds unless they can show unequal treatment has actually hurt them.

“We have been unable to find any case in which a plaintiff was deemed to have standing based solely on being treated differently,” Flaum writes.

The reputation and electoral theory of injury could apply only to Ericson, and Ericson could avoid that harm by opting out of congressional health benefits and buying his own, unsubsidized coverage through an individual exchange, Flaum says.

Johnson said in a statement that he and his legal team will review the decision carefully before determining their next step.

The ruling “is unfortunate for America, because it means the important issue this case presents will not get its day in court,” Johnson said.

Representatives from the Obama administration were not immediately available to comment on the ruling.

See also: What could members of Congress pay for coverage?