Sen. David Vitter, R-La., demanded a legislative or administrative correction to a 2013 rule he called illegal.

Sen. David Vitter, R-La., demanded a legislative or administrative correction to a 2013 rule he called illegal. Gerald Herbert/AP file photo

Senator: Address the Obamacare Exception for Hill Staffers, Or I’ll Keep Blocking OPM Nominee

Vitter says Cobert has been involved in defending and executing an October 2013 rule that allowed congressional offices to get around an Affordable Care Act requirement.

A Republican senator on Wednesday dug in his heels further in opposition to confirming Beth Cobert as director of the Office of Personnel Management, reiterating his criticisms of OPM’s role in allowing congressional offices to sidestep an Obamacare provision that requires lawmakers and their staffs to obtain their health insurance on a public exchange.

In a May 11 letter to colleagues first reported by Federal News Radio, Sen. David Vitter, R-La., spelled out the reasons that he is maintaining a hold on Cobert’s nomination. Cobert has “supported and executed” an October 2013 OPM rule that is “clearly illegal … in two major respects,” Vitter wrote, and she “has indicated that she would continue to do so if confirmed.”

The 2013 rule lets members of Congress and their staffs enroll in the DC Small Business Exchange, which is meant for employers with fewer than 50 people and allows employers to make a contribution toward health care costs. The rule also lets lawmakers designate some staff as “non-official” employees so that they can remain in the Federal Employees Health Benefits Program, which is where they were before the 2010 Affordable Care Act provision took effect.

“The OPM rule is patently illegal,” Vitter wrote in his letter. “It’s exactly the sort of Washington insider self-dealing that Americans are so sick and tired of.”

The Louisiana Republican also noted that the House and Senate “though unnamed staff, officially certified in writing that each body employed 45 persons in order to qualify for the DC Small Business Exchange.” This was an “outrageous act of fraud,” he said.

Vitter said he would not lift his hold on Cobert until the problems with the OPM rule are “corrected either legislatively or administratively.”

The Senate Homeland Security and Governmental Affairs Committee reported out Cobert’s nomination in February, but Vitter said at the time that he would require more information about the Obama administration’s role in allowing what amounted to special treatment for congressional offices under the Affordable Care Act.

Cobert was named acting OPM director in July 2015, in the wake of the data breaches that compromised the personal information and sensitive security clearance data of more than 21 million current and former federal employees. President Obama in November 2015 nominated her to take over permanently as director.

In addition to Vitter’s hold, Cobert’s eligibility for the job was called into question by former OPM Inspector General Patrick McFarland in February, just before he stepped down, due to language in the 1998 Federal Vacancies Reform Act as interpreted by the Supreme Court last August in its ruling in SW General Inc. v. National Labor Relations Board. Lawmakers did not appear too concerned about that allegation, however. “The administration’s failure to follow the law when appointing officials to management positions at OPM doesn’t change my evaluation of Ms. Cobert’s qualifications to be the next director of the agency,” said Sen. Ron Johnson, R-Wis., chairman of the Homeland Security and Governmental Affairs Committee, at the time.