In an ongoing lawsuit challenging congressional health care enrollment, the D.C. government acknowledged that local law does not recognize Congress as a small business — which is seemingly necessary for it to have employees enroll in the small-business exchange. But, officials argued that federal regulations trump the local law, allowing enrollment to continue.  

The conservative group Judicial Watch filed a lawsuit in October contending that members of Congress and their staff cannot enroll in the D.C. Small Business Health Option Program created by the Affordable Care Act because District law classifies a small business as an entity with 50 or fewer employees. In recent court filings, the D.C. government acknowledged that District law does make that classification, but an Office of Personnel Management ruling instructing lawmakers and congressional staffers to enroll in the exchange supplants District law. The OPM also ruled that members and staffers could keep their employee subsidies under the Affordable Care Act. Some lawmakers have argued that allowing Congress to receive the subsidy is a misuse of taxpayer dollars.  

In a motion to dismiss the case, the defendants, including Mila Kofman, executive director of D.C. Health Benefit Exchange Authority, stated, “District of Columbia law limiting the SHOP to ‘small employers,’ thereby excluding the participation of Members of Congress and congressional staff, obviously conflicts with regulations authorizing Members of Congress and designated staff to enroll. Where the local statute is preempted by federal statute or regulation, the local statute must yield to the extent the federal statute or regulation applies.”  

The latest figures from D.C. Health Link show that more than 12,000 lawmakers and staffers have enrolled in the small-business exchange. That 2014 figure will likely change soon, however, as new statistics on the number of congressional enrollees are expected to be released next week.  

Though litigation continues, Judicial Watch was quick to publicize the D.C. government’s acknowledgment that Congress is not technically a small business under local law.  

“It may be a surprise to D.C. taxpayers that their government thinks a federal bureaucrat can rewrite both D.C. and federal law,” Judicial Watch President Tom Fitton said in a release Wednesday. “Members of Congress are relying on fraudulent application information to obtain insurance in D.C. under Obamacare.”  

A spokesman for D.C. Health Link could not comment on the recent developments because the case is ongoing.  

The D.C. government’s acknowledgment that Congress is not a small business under District law caught the attention of lawmakers seeking to dismantle the Affordable Care Act, and particularly Congress’ enrollment in local exchanges.  

In a statement issued Thursday, Sen. David Vitter, R-La., said, “Nobody considers Congress a small business, which is why I’ve said for months that the Washington special exemption is unlawful and just plain unfair. I’ll continue to fight against the egregious misuse of the small business exemption so that all Washington insiders – including President Obama and each and every Member of Congress – are forced to live under Obamacare just like the rest of America without a special taxpayer funded subsidy.”  

Related:

Obamacare Lawsuit Challenges Congress’ ‘Small Business’ Status


Health Insurance for Congress and Staff: It’s Complicated


 GOP: Staffers Should Use Obamacare


The 114th: CQ Roll Call’s Guide to the New Congress


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