Flip Flopper

Key PPACA proponent and "health law" expert Timothy Jost is once again coming to the defense of President Obama. This time it is to save Congress Critters and their staffers from being thrown to the wolves by having to get their insurance AND PAY FOR IT through Federal and State Exchanges Marketplaces. If you didn’t read Bob’s post on Monday, this super special group of people will not be able to "keep the plan they currently have" but will still receive the generous Federal Government contribution.

What's so wrong with that? Well according to an article in Health Affairs Mr. Jost wrote back in January doing this would be illegal and may violate large employer rules on adequate and affordable health coverage. In that article Mr. Jost states:

"The problem is that section 2711 of the Public Health Services Act, added by the ACA, prohibits annual dollar limits on health plan coverage, and HRAs are by definition limited in the dollar amount they offer for coverage…That conclusion, however, left open the question of “stand-alone” HRAs.  In some instances HRAs are not integrated into a group health plan, but rather simply offered to employees to allow the employee to purchase conventional insurance in the individual, non-group, market with pre-tax dollars.  Some employers had hoped that with the advent of the exchanges in 2014, they would be able to offer their employees a fixed dollar contribution through an HRA, which would permit the employee to take advantage of the tax subsidies currently available through HRA coverage but get the employer out of the health insurance business…Large employers, who must offer adequate and affordable health care coverage to their full time employees (and dependents) or pay a penalty if an employee ends up receiving premium tax credits, would probably not have been able to use this strategy, as it is hard to see how a stand-alone HRA could meet the “adequate and affordable test,” but it could be an attractive strategy for small employers who wish to move to a defined contribution approach to health benefits. The FAQ clarifies that this approach is not possible under section 2711."  

Fast forward to a Reuters article today where he has this little gem:

"It was probably never Congress' intention to take away federal benefit contributions from Capitol Hill employees, just to push them into them into the exchanges. There is nothing in the health law that prohibits private companies from contributing to employee health insurance premiums for plans purchased on the health exchanges. This clarifies what they really intended to do all along. Congress had subjected itself to a requirement that applied to nobody else in the country."

So tell me Tim, as a law professor which quote of yours is correct?