One senator says he will continue his hold on Beth Cobert’s nomination to be the permanent Office of Personnel Management director.

Sen. David Vitter (R-La.) said he isn’t satisfied with OPM’s response to his questions about a final rule that lets members of Congress and their staff buy health insurance on the Small Business Health Options Plan (SHOP) exchange. And he’s blaming OPM — as well as members of Congress — for being complicit to an exemption in the Affordable Care Act that members shouldn’t have.

“I would welcome this being corrected either legislatively or administratively, and I’ve suggested numerous ways in which this can be done,” he wrote in a May 11 letter to Senate members. “In the meantime, I will maintain my hold on the nomination of Beth Cobert to become director of OPM.”

At issue is a final rule OPM published in October 2013, well before Cobert assumed her role as the agency’s acting director last July. When it was published, Vitter asked OPM leadership to answer several questions about the agency’s thought process behind the rule, as well as any documents and correspondence between OPM, the White House and members of Congress.

Vitter never got a response but sent a similar query to Cobert, threatening to stall her confirmation two days prior to her nomination hearing before the Senate Homeland Security and Governmental Affairs Committee.

OPM responded to Vitter March 15, but the agency’s director of congressional, legislative and intergovernmental affairs — rather than Cobert — signed the letter, according to a briefing Vitter’s staff put together on OPM’s response.

The issue is whether OPM permits Congress to be considered a small business. Small businesses with no more than 100 employees can typically purchase health care through the SHOP exchange, the Affordable Care Act says.

But Congress employs roughly 16,000 people, Vitter said, meaning Congress could not qualify for small business status.

According to OPM’s response to Vitter, the agency doesn’t see an issue with ACA exemption.

“OPM does not take the position that Congress is a small employer, nor has OPM taken such a position in the past,” the agency wrote in response. “Nothing in the proposed or final rule indicates that Congress shall be considered a small employer.”

But Vitter disagrees.

“OPM deliberately misinterpreted the ACA, and OPM’s assertion that it does not and has not taken a position that Congress is a small employer is simply false,” the briefing said. “In promulgating the final rule, OPM clearly decided to treat Congress as a small employer, and yet continues to deny it has any position, one way or the other.”

Vitter also said members of Congress played a role in letting the branch continue with the ACA exemption.

“Both the House and Senate, through unnamed staff, officially certified in writing that each body employed 45 persons in order to qualify for the D.C. Small Business Exchange,” he wrote in his letter Congress.

Vitter said OPM also didn’t provide full answers to all of his questions. The agency did give Vitter’s staff copies of emails and other documents between OPM and members of Congress on this topic. But the agency said it didn’t correspond with White House staff as it developed the final rule.

Despite some concern over this particular issue, the Senate Homeland Security and Governmental Affairs Committee voted 15-0 in February to move Cobert’s nomination forward. Committee Chairman Ron Johnson (R-Wis.) said he agreed to move Cobert’s nomination forward because she agreed to “accommodate [congressional] oversight needs.”

Committee Ranking Member Tom Carper (D-Del.), as well as other members of Congress, have been particularly vocal in calling for the Senate to confirm Cobert quickly.

House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) and Ranking Member Elijah Cummings (D-Md.) expressed their support for Cobert in a March 3 letter to Senate leadership, calling her “competent and qualified.”

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