Note: The information in this document has been superseded by BAL 13-207. 

Note: The information in this document has been superseded 

by BAL 13-207. 

United States 

Office of 

Personnel Management 

The Federal Government’s Human Resources Agency

Benefits Administration Letter

Number: 13-204 Date: August 7, 2013

Subject: Federal Employees Health Benefits Program: Members of Congress and 

Congressional Staff

The Office of Personnel Management (OPM) has issued a proposed rule to amend the Federal 

Employees Health Benefits (FEHB) Program regulations regarding coverage for Members of 

Congress and congressional staff. This proposed rule amends FEHB Program eligibility 

regulations to comply with Section 1312 of the Patient Protection and Affordable Care Act, 

Public Law 111-148, as amended by the Health Care and Education Reconciliation Act, Public 

Law 111-152 (the Affordable Care Act or the Act). 

The Affordable Care Act states, in Subparagraph 1312(d)(3)(D), that, “Notwithstanding any 

other provision of law . . . the only health plans that the Federal Government may make available 

to Members of Congress and congressional staff with respect to their service as a Member of 

Congress or congressional staff shall be health plans that are–(I) created under this Act (or an 

amendment made by this Act); or (II) offered through an Exchange established under this Act (or 

an amendment made by this Act).” The Act defines Member of Congress as any member of the 

House of Representatives or the Senate and congressional staff as all full-time and part-time

employees employed by the official office of a Member of Congress, whether in Washington, 

DC or outside of Washington, DC. 

Currently, Members of Congress (including Delegates to the House of Representatives and the 

Resident Commissioner from Puerto Rico) and congressional employees (which include each 

Member’s respective personal staffs, staffs of House and Senate leadership offices, other 

committee staff and administrative office staff) meet the definition of employee in 5 U.S.C. 

§8901 and are, therefore, eligible to enroll in the FEHB Program. The Affordable Care Act does 

not amend 5 U.S.C. §8901. However, its effect is to limit the ability of Members of Congress 

and congressional staffs to purchase health benefits plans under chapter 89 of title 5. Section 

1312 of the Affordable Care Act specifies that “the only health plans that the Federal 

Government may make available” are those that are either “created under” the Act, or “offered 
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Note: The information in this document has been superseded by BAL 13-207.

through an Exchange established under” the Act. The health benefits plans currently offered by 

OPM under chapter 89 of title 5 are not “created under” the Act; nor are they offered through the 

Exchanges. Therefore, Members of Congress and their employees employed by the official 

office may no longer purchase the health benefits plans for which OPM contracts under chapter 

89 of title 5; they are limited to purchasing plans from Exchanges. Though the Affordable Care 

Act does not provide a specific effective date for transition to the Exchanges, a reasonable 

reading of the statute is that enrollment in FEHB plans will no longer be available to Members of 

Congress and their employees employed by the official office as of January 1, 2014, the date 

under the Act that Exchanges (also called Health Insurance Marketplaces) will be available for 

providing health insurance coverage. 

The Affordable Care Act limits the ability of the Federal government to offer health insurance to 

Members of Congress and certain congressional staff to only those plans offered on Exchanges. 

We interpret this for 2014 to mean the individual market Exchange in each State where the 

Member of Congress or congressional staff reside. The Act did not, however, alter the definition 

of “employee” as used in 5 U.S.C. 8901(1)(B) & (C), or the definition of “health benefits plan” 

under 5 U.S.C. 8901(6). Health benefit plans that are offered through the Exchanges fit within 

the definition of “health benefit plan” under 8901(6). Because there are now Federal employees 

covered by Chapter 89 of title 5 who will be purchasing health benefits plans on Exchanges, we 

believe that it is appropriate to clarify the provisions that authorize a Government contribution 

for “health benefits plans under this chapter.” In order to establish that the Government 

contribution will continue without interruption, we have added new paragraph (h) to section 

890.501 of OPM’s regulations. It should be noted that the FEHB has two enrollment categories, 

self only and self and family, and OPM determines Government contribution levels for each of 

these categories. While there are additional enrollment categories for Exchange plans, OPM 

intends to apply the self and family contribution level to any Exchange enrollment category other 

than one adult/individual.

The proposed rule defines a “Member of Congress” as a member of the Senate or of the House of 

Representatives, a Delegate to the House of Representatives (which includes delegates from the 

District of Columbia and the territories), and the Resident Commissioner of Puerto Rico. 

The Affordable Care Act defines “congressional staff” to include those who work for “the 

official office of a Member of Congress.” Because there is not an existing statutory or regulatory 

definition of official office, the proposed rule gives the employing office of the Member of 

Congress the responsibility for the determination as to whether an employed individual meets the 

statutory definition. 

OPM believes that Members’ offices are best equipped to make the determination as to whether 

an individual is employed by the “official office” of that Member, as there is no existing 

statutory or regulatory definition of “official office.” OPM’s proposed rule provides that a 

designation as a congressional staff member will be an annual designation made prior to October 

of each year for the following year based on expected work. The proposed rule provides that the

designation must be made prior to October of the year before the coverage year so individuals 

know, during open enrollment, whether to participate in the appropriate state Exchange or the 

FEHB Program for the following year. However, OPM may extend the deadline for up to 30 
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Note: The information in this document has been superseded by BAL 13-207.

days for the first year. OPM will work with the administrative offices of Members of Congress 

on a streamlined process for reporting on this designation. 

The proposed rule also states that the designation will be effective for the entire FEHB Program 

plan year during which the congressional staff member works for that Member of Congress. 

Individuals designated for Exchange plans will be subject to the same rules as others on the 

Exchanges (e.g. enrollment changes and benefit claim appeals). These individuals will remain 

eligible to participate in a dental and/or vision plan under the Federal Employees Dental and 

Vision Insurance Program (FEDVIP) as well as the FSAFEDS program. 

OPM is working with the Department of Treasury on guidance clarifying that because the 

employer contributions for Members of Congress and congressional staff, like contributions from 

other employers, will continue to be tax preferred, such individuals are ineligible for premium 

tax credits and cost sharing reductions available to eligible individuals enrolled in qualified 

health plans on Exchanges. 

Summary 

OPM’s proposed regulation implements the Affordable Care Act requirement that Members of 

Congress and congressional staff obtain their health benefits from the Exchanges. It is purely 

administrative. By issuing this proposed regulation, OPM will provide for the ease of transition 

of Members of Congress and staff to Exchange plans. 

OPM staff will be working with relevant administrative staff in the House and Senate to assist 

with addressing specific issues concerning eligibility, enrollment and payment processes. Our 

goal is to ensure that Members of Congress and affected staff have as smooth as possible a 

transition to plans offered on Exchanges. 

 Sincerely, 

 

John O’Brien

Director for Healthcare and Insurance