Access to Federal Employees Health Benefits (FEHB) for Employees of Certain Indian Tribal Employers, 59907-59919 [2016-20566]
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59907
Proposed Rules
Federal Register
Vol. 81, No. 169
Wednesday, August 31, 2016
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Part 890
RIN 3206–AM40
Access to Federal Employees Health
Benefits (FEHB) for Employees of
Certain Indian Tribal Employers
U.S. Office of Personnel
Management.
ACTION: Notice of proposed rulemaking.
AGENCY:
The U.S. Office of Personnel
Management (OPM) is issuing a Notice
of Proposed Rulemaking to address the
implementation of certain provisions of
the Patient Protection and Affordable
Care Act and the Health Care and
Education Reconciliation Act of 2010, as
amended (ACA) making Federal
employee health insurance accessible to
employees of certain Indian tribal
entities. The ACA includes
authorization for Indian tribes, tribal
organizations, and urban Indian
organizations that carry out certain
programs to purchase coverage, rights,
and benefits under the Federal
Employees Health Benefits (FEHB)
Program for their employees. Tribal
employers and tribal employees will be
responsible for the full cost of benefits,
plus an administrative fee.
DATES: Comment date: Comments are
due on or before October 31, 2016.
FOR FURTHER INFORMATION CONTACT:
Chelsea Ruediger, Senior Policy Analyst
(202) 606–0004.
ADDRESSES: You may submit comments,
identified by RIN number ‘‘3206–
AM40’’ using any of the following
methods:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Chelsea Ruediger, Senior Policy
Analyst, Planning and Policy Analysis,
U.S. Office of Personnel Management,
1900 E Street NW., Washington, DC
20415.
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SUMMARY:
SUPPLEMENTARY INFORMATION:
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Background
The U.S. Office of Personnel
Management (OPM) is issuing a notice
of proposed rulemaking to extend
certain Federal employee benefits to
employees of certain Indian tribal
employers. The Patient Protection and
Affordable Care Act (Pub. L. 111–148)
and the Health Care and Education
Reconciliation Act of 2010 (Pub. L. 111–
152), as amended (ACA) extended
eligibility to purchase coverage, rights,
and benefits under the Federal
Employees Health Benefits (FEHB)
Program to employees of those Indian
tribes and tribal organizations carrying
out programs under the Indian SelfDetermination and Education
Assistance Act (ISDEAA), and urban
Indian organizations carrying out
programs under title V of the Indian
Health Care Improvement Act (IHCIA).
This regulation includes program rules
for tribal employers and tribal
employees in accordance with chapter
89 of title 5, United States Code. The
new regulatory provisions are set forth
in new subpart N, part 890 of title 5 of
the Code of Federal Regulations.
These proposed rules, which codify
previously issued guidance, adopt the
FEHB program for Federal employees
under 5 U.S.C. 89 with slight variations
to meet the needs of the tribal
population. OPM performed
consultation and developed subregulatory guidance in 2011–2012 to
administer the program. OPM has been
operating the program since then and
tribal employers began purchasing
FEHB for their employees on March 22,
2012 with an insurance coverage
effective date of May 1, 2012. As of the
publication date of this proposed rule,
19,540 tribal employees and 90 tribes
are participating in the program. These
proposed rules codify the program as set
forth in previous guidance after
extensive work understanding tribal
population needs.
Authorizing Legislation
Section 10221 of the ACA enacted the
entire text of S. 1790 as reported on
December 16, 2009 by the Senate
Committee on Indian Affairs to Public
Law 111–148. S. 1790 revised and
extended the IHCIA, including adding a
new section 409 to the IHCIA (codified
at 25 U.S.C. 1647b).
This proposed regulation refers to
tribes, tribal organizations, and urban
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Indian organizations that are entitled to
access insurance under section 409 as
‘‘tribal employers.’’ Moreover, because
the term ‘‘employee’’ as used in 5 U.S.C.
chapter 89 is a statutorily defined term,
OPM refers to a tribal employer’s
employees who are eligible to enroll in
FEHB as ‘‘tribal employees.’’ 1 This
proposed regulation establishes how
FEHB enrollment will be administered,
including eligibility, tribal employer
and tribal employee contribution to
premiums, the process by which tribal
employers will access these programs,
the process by which tribal employees
will elect coverage, and circumstances
for termination and cancellation of
enrollment.
Where practicable, this regulation
provides for the administration of
benefits by and for tribal employers and
tribal employees in the same manner as
these benefits are administered by and
for Federal agencies and Federal
employees. There may be some
instances for which there is no
established procedure in place for the
Federal Government, such as the
procedure and timeline by which tribal
employers certify entitlement to
purchase FEHB. When there are no
established procedures in place, OPM
has proposed a procedure.
OPM has worked in consultation with
tribal leaders to establish program rules.
Tribal Consultation
Under Executive Order 13175, OPM
has an obligation to engage in ‘‘regular
and meaningful consultation and
collaboration with tribal officials in the
development of Federal policies that
have tribal implications.’’ OPM is
committed to fulfilling this obligation.
Following the passage of the ACA,
OPM published a series of policy papers
1 The ACA establishes entitlement for certain
tribal employers to purchase FEHB coverage, rights,
and benefits for their tribal employees in a manner
consistent with the FEHB statute 5 U.S.C. Ch. 89.
The Department of Labor reviewed this notice of
proposed rulemaking and advised that the tribal
employer does not ‘‘establish or maintain’’ an
employee welfare benefit subject to Title I of ERISA
with such a purchase pursuant to the ACA, and
advised that the enrollment of tribal employees in
FEHB coverage does not affect the status of the
FEHB as a governmental plan for purposes of the
exemption from title I of ERISA at 29 U.S.C.
1003(b)(1). In addition, the Department of the
Treasury, including the Internal Revenue Service,
reviewed this notice of proposed rulemaking and
advised that the enrollment of tribal employees in
FEHB coverage does not affect the status of the
FEHB as a governmental plan within the meaning
of 26 U.S.C. 9832(d)(2).
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(found here under Outreach
Documentation) regarding the
implementation of the Tribal FEHB
Program. Tribes, tribal organizations,
and urban Indian organizations were
given an opportunity to provide
feedback on these papers at outreach
events and tribal conferences and
meetings. Written feedback was also
accepted.
A Tribal Technical Workgroup
composed of tribal human resource
representatives and OPM operational
and policy staff was established when
developing this regulation and in
support of the implementation of the
Tribal FEHB Program. The primary
purpose was to ensure system
requirements for enrollment processing
were completed according to the needs
of tribal employers.
Additional tribal consultative actions
included collaborating with the
Department of Health and Human
Services (HHS) to conduct in-person
briefings for tribal communities across
the country, focusing on the
implementation of the ACA.
OPM representatives have attended
more than 20 tribal conferences and
meetings to provide information and
consultation about the Tribal FEHB
Program since its inception. In addition,
OPM has hosted training sessions for
interested tribes and tribal organizations
on numerous occasions. Tribal Benefits
Administration Letters (TBAL) are
released and distributed to participating
tribal employers regularly, just as they
are for Federal agencies. Questions
following the release of a TBAL are
directed to OPM’s dedicated Tribal
Desk. The Tribal Desk is available
during regular business hours and is
answered by the OPM staff who
administer the program. Whenever
possible, OPM has created direct lines
of communication and fostered
collaboration between tribal employers
and OPM employees.
When important program changes
occur, OPM issues Dear Tribal Leader
Letters (DTLL) to notify tribes, tribal
organizations and urban Indian
organizations. An example was the
DTLL issued describing the revision of
the original ‘‘all-or-nothing’’ policy. The
original policy had required a tribal
employer to enroll all of their billing
units. Due to concerns raised by tribal
employers, OPM amended that policy to
allow tribal employers to select which
of their billing units will receive FEHB
and which will not. As a result, interest
in FEHB enrollment has increased.
OPM’s obligation to consult with
tribal officials is ongoing. OPM will
consider the public comment period of
this proposed rule as an important
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consultation period. Tribal leaders will
be alerted of the publication of this
proposed rule and the process for
submitting formal comments with a
DTLL. As appropriate, OPM will
conduct meetings with tribal officials to
address components of this proposed
rule. A DTLL will also be issued in
tandem with the publication of a final
rule.
FEHB Background
The FEHB Program was established in
1960 to provide health benefits to
Federal employees, annuitants, spouses,
and children. Approximately 8.2
million employees, annuitants, and
family members are now covered.
Federal employees can choose among
various forms of health plans, including
nationwide Fee-for-Service (FFS) plans,
local Health Maintenance Organizations
(HMO), Consumer-Driven Health Plans
(CDHP), and High-Deductible Health
Plans (HDHP). FEHB plans typically
cover inpatient and outpatient hospital
care, primary care and specialist doctor
visits, and pharmacy benefits. Some
FEHB plans offer limited routine vision
and dental benefits.
Currently, there are three FEHB
enrollment categories: (1) Self only; (2)
self plus one; and (3) self and family. A
self only enrollment covers only the
enrollee. A self plus one enrollment
covers the enrollee and one designated
eligible family member. A self and
family enrollment covers the enrollee
and all eligible family members. Eligible
family members include a spouse and/
or child(ren) under age 26 (including
married children, adopted children, and
stepchildren). A child age 26 or over
who is incapable of self-support because
of a mental or physical disability that
existed before age 26 is also an eligible
family member. A foster child may be
covered if the child lives with the
employee in a parent-child relationship
and the employee expects to raise the
child to adulthood.
A newly eligible Federal employee
can enroll in any FEHB plan available
in his or her geographic region within
60 days of becoming eligible. FEHB
coverage is effective the first day of the
pay period after the enrollment request
is received by the Federal employee’s
employing office and that follows a pay
period during any part of which the
employee is in pay status. Federal
employees can enroll, cancel
enrollment, increase or decrease
enrollment, or change plans or options
during the annual open season usually
held from mid-November to midDecember. Any changes made during
open season are effective for the
following calendar year. Enrollees can
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also change enrollment in conjunction
with a qualifying life event (QLE), such
as marriage, divorce, birth or adoption
of a child, change in employment status
that affects insurance coverage or cost,
or a move outside of an HMO’s service
area.
The employing Federal agency pays a
Government contribution of
approximately 72 percent of the
weighted average of premiums in effect
for each calendar year. The Government
contribution to any individual plan is
capped at 75 percent of premium. FEHB
plans generally require enrollee cost
sharing in the form of calendar year
deductibles, copayments, and/or
coinsurance for covered services.
Definitions
Section 890.1402 defines several
terms used in the new subpart N of Part
890. This section also includes a series
of deemed references. Defining these
terms and identifying deemed
references are necessary to make clear
how OPM will modify and apply
existing regulations to govern tribal
employers’ purchase of FEHB for tribal
employees.
The new subpart N refers to and
incorporates many other subparts of part
890 that govern how the FEHB Program
functions. The deemed references make
it clear that references to statutory terms
such as ‘‘employee,’’ and other terms
used throughout part 890 will be
deemed references to ‘‘tribal employee,’’
and other terms as appropriate, in
context, to govern tribal employers’
purchase of FEHB for its tribal
employees pursuant to the ACA.
Scope of Entitlement for Tribal
Employers
Entitlement to offer FEHB coverage,
rights, and benefits will be available to
any tribe, tribal organization, or urban
Indian organization carrying out at least
one of the programs under the ISDEAA
or Title V of the IHCIA as specified in
section 409 of the IHCIA. The terms
‘‘ tribe,’’ ‘‘ tribal organization,’’ and
‘‘ urban Indian organization’’ are defined
in the IHCIA. Those definitions, set
forth below, are incorporated by
reference in the regulatory text at
§ 890.1402 which defines the term
‘‘ tribal employer.’’ The term ‘‘ tribal
employer’’ is used to refer to any of
these entities that fulfill the
requirements to be entitled to purchase
FEHB for its employees.
A tribe is any Indian tribe, band,
nation, or other organized group or
community, including any Alaska
Native village or group or regional or
village corporation as defined in or
established pursuant to the Alaska
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Native Claims Settlement Act (85 Stat.
688) [43 U.S.C.A. 1601 et seq.], which
is recognized as eligible for the special
programs and services provided by the
United States to Indians because of their
status as Indians. 25 U.S.C. 1603(14).
A tribal organization is the recognized
governing body of any Indian tribe; any
legally established organization of
Indians which is controlled, sanctioned,
or chartered by such governing body or
which is democratically elected by the
adult members of the Indian community
to be served by such organization and
which includes the maximum
participation of Indians in all phases of
its activities: That in any case in which
a contract is let or grant made to an
organization to perform services
benefiting more than one Indian tribe,
the approval of each such Indian tribe
shall be a prerequisite to the letting or
making of such contract or grant. 25
U.S.C. 1603(26), incorporating by
reference 25 U.S.C. 450b(l) (definition of
‘‘ tribal organization’’).
An urban Indian organization is a
non-profit corporate body situated in an
urban center, governed by an urban
Indian controlled board of directors, and
providing for the maximum
participation of all interested Indian
groups and individuals, which body is
capable of legally cooperating with
other public and private entities for the
purpose of performing the activities
described in section 1653(a) of this title.
25 U.S.C. 1603(29).
For purposes of this regulation, tribes
and tribal organizations carrying out at
least one program under the ISDEAA,
and urban Indian organizations carrying
out at least one program under Title V
of the IHCIA, are entitled to purchase
FEHB for their employees. If the tribal
employer ceases to carry out one of
these programs, entitlement to purchase
FEHB ceases at the end of the calendar
year in which the tribal employer
ceased to carry out one of those
programs.
If OPM determines that a tribal
employer is not entitled to purchase
FEHB, the tribal employer may appeal
that decision to OPM. OPM retains sole
authority for deciding entitlement.
Eligible Tribal Employees
OPM has defined the term ‘‘ tribal
employee’’ in § 890.1402 broadly to
mean a common law employee of a
tribal employer. This section
incorporates the regulatory standard
under the Federal employment tax
regulations, (which, for this purpose,
includes Federal Insurance
Contributions Act tax and Federal
income tax withholding), which
generally provides that an individual is
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a common law employee if the tribal
employer has the right to control and
direct the individual who performs the
services, not only as to the result to be
accomplished by the work but also as to
the details and means by which that
result is accomplished. This
determination is based on all the facts
and circumstances. The section then
indicates that this determination is to be
guided by a list of 20 factors 2 developed
by the Internal Revenue Service (IRS), or
any future guidance the IRS releases
related to the common law employee
relationship for Federal employment tax
purposes. Because OPM expects tribal
employers to treat tribal employees
consistently for purposes of Federal
employment taxation and access to
Federal insurance, the tribal employer’s
determination of common law employee
status for purposes of eligibility for
FEHB must be consistent with any
determination of common law employee
status made by the tribal employer for
Federal employment tax purposes.
OPM recognizes that there may be
very limited cases in which a tribal
employer has determined that a worker
is a common law employee but has also
determined that no Federal employment
taxes are due with respect to the worker.
Under these circumstances, OPM will
defer to the tribal employer’s reasonable
determination that the worker is a
common law employee for purposes of
eligibility to enroll in FEHB.
Each tribal employer entitled to
access Federal insurance will be able to
offer FEHB coverage, rights, and benefits
to all of its tribal employees, not just
those carrying out functions under the
ISDEAA or IHCIA title V programs.
OPM has determined that tribal
employees (who, by definition, are
common law employees) engaged in
governmental or commercial operations,
such as casino or hospitality operations,
will be eligible to enroll in FEHB if it
is purchased by their tribal employer.
As discussed below, individuals who
retire from employment with a tribal
employer lose their status as tribal
employees upon retirement and their
enrollment will terminate.
A tribal employer carrying out
programs under the ISDEAA or Title V
of the IHCIA may purchase FEHB for
employees of one or more billing units
carrying out programs or activities
under their contract. Once a tribal
employer has enrolled at least one
billing unit carrying out programs or
2 IRS in Rev. Rul. 87–41, 1987–1 C.B. 296 and
referenced in Joint Committee on Taxation report
JCX–26–07 ‘‘Present Law and Background Relating
to Worker Classification for Federal Tax Purposes,’’
dated May 7, 2007 https://www.irs.gov/pub/irs-utl/x26-07.pdf.
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activities under ISDEAA or IHCIA, the
tribal employer may enroll one or more
billing units that are not carrying out
programs or activities under ISDEAA or
IHCIA. Section 890.1405 establishes that
all eligible full-time and part-time tribal
employees of each participating billing
unit of a tribal employer must be offered
the opportunity to enroll in FEHB.
Intermittent, seasonal, and temporary
tribal employees will be treated
similarly to intermittent, seasonal and
temporary Federal employees. However,
under § 890.102(k), the tribal employer
may choose not to extend coverage to
certain intermittent, seasonal, and
temporary employees if written
notification is provided to the Director
of OPM.
Tribal employers may not segment
tribal employee populations by offering
a different set of health benefits to
different groups of tribal employees
within a single billing unit. An
exception to this rule is if tribal
employees within a billing unit are
offered alternative coverage as part of a
collective bargaining agreement.
Coverage of Family Members
As described in § 890.1405(e), family
members of tribal employees will be
eligible for coverage in FEHB under
substantially the same terms as family
members of Federal employees. One
exception is that former spouses of
tribal employees may not enroll in
FEHB under the Civil Service
Retirement Spouse Equity Act. This is
because Spouse Equity coverage is
linked to the former spouse’s
entitlement to a portion of a Federal
employee’s annuity. Another exception
is that if the tribal employee dies while
employed, a surviving spouse cannot
continue FEHB enrollment or enroll in
his or her own right, unless the
surviving spouse is also FEHB-eligible
through his or her employment. This is
because continuing FEHB eligibility for
surviving spouses of Federal employees
is linked to a survivor annuity.
Section 890.1406 states that
correction of enrollment errors will take
place according to the same terms as for
Federal employees. Requirements for
tribal employees’ appeals of eligibility
and enrollment decisions are described
in § 890.1415.
Tribal Employer and Tribal Employee
Contributions and Administrative Fee
Section 890.1403 explains that a tribal
employer is entitled to purchase FEHB
if payment, defined by § 890.1402 as all
premiums plus administrative fees, are
currently deposited in the Employees
Health Benefits Fund, as required by the
authorizing statute. This section
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provides that a payment will be
considered ‘‘currently deposited’’ if it is
received by the Fund before, during, or
within fourteen days after the end of the
calendar month covered by the
payment.
Section 890.1413 describes how
payment will work for tribal employers
participating in FEHB. Tribal employer
and tribal employee contributions for
FEHB will be handled similarly for
tribal employees as for Federal
employees, with the tribal employer
responsible for contributing a share of
premium that is at least equivalent to
the share of premium that the Federal
Government contributes for Federal
employees. The percentage contribution
requirements are described in 5 U.S.C.
8906. The FEHB contributions for parttime tribal employees working between
16 and 32 hours per week may be prorated in accordance with the terms
applicable to part-time Federal
employees. FEHB enrollment for tribal
employees on unpaid leave may be
continued in a manner similar to
Federal employees on unpaid leave
under 5 CFR 890.502(b), as long as the
full premium is paid.
The tribal employer’s FEHB
contribution percentage must equal or
exceed the contribution that the Federal
Government would make each month
for a Federal employee for the same
plan. Tribal employers may elect to pay
a greater tribal employer contribution,
but may not pay a lesser amount than
the Federal Government contribution for
each plan. There is no cap on the
percentage of premium that a tribal
employer may contribute. The tribal
employer may vary the contribution by
type of enrollment (self only, self plus
one, self and family) but must treat
tribal employees in a uniform manner.
As an example, a tribal employer could
contribute 100% for all tribal employees
in self only or self plus one enrollments
and 90% for all tribal employees in self
and family enrollments. Tribal
employers may not vary the tribal
employer contribution in order to
encourage or discourage enrollment in
any particular plan or plan option.
Tribal employers may choose to vary the
contribution amounts for each billing
unit, provided each billing unit meets
the requirements set forth above.
In addition, the tribal employer is
required to pay an administrative fee, in
an amount set by OPM each year, for
each tribal employee’s enrollment on a
monthly basis. This fee covers the costs
of a paymaster to perform the collection
and remittance functions that is
performed for Federal employees by
Federal payroll offices. The paymaster is
the entity designated by OPM as
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responsible for receiving FEHB
premiums from the tribal employer,
forwarding premiums to the Employees
Health Benefits Fund, and maintaining
enrollment records for all participating
tribal employers. Tribal employers may
not charge this fee to tribal employees.
The total aggregate amount for tribal
employees’ and tribal employer’s share
of the premium and the administrative
fee must be available for receipt by the
paymaster on an agreed upon date set in
the agreement with the tribal employer.
Tribal Employers’ Entitlement and
Election to Purchase FEHB
Section 890.1404 establishes a process
by which tribal employers may
demonstrate entitlement and elect to
purchase, FEHB for their tribal
employees. The tribal employer must
notify OPM by email or telephone of the
intention to purchase FEHB. Through an
agreement described in § 890.1404(b),
OPM will confirm: (1) The tribal
employer’s contact information; (2) the
date that FEHB coverage will begin; (3)
the approximate number of tribal
employees eligible to enroll; (4) the
tribal employer’s agreement not to make
available to FEHB-eligible tribal
employees alternate tribal employersponsored health insurance coverage
concurrent with FEHB; (5) the tribal
employer is entitled to participate in the
FEHB by carrying out at least one
program under ISDEAA or title V of
IHCIA; (6) the tribal employer’s
acknowledgement that participation in
FEHB makes the tribal employer subject
to Federal Government audit with
respect to such participation and to
OPM authority to direct the
administration of the program; (7) the
tribal employer’s agreement to establish
or identify an independent dispute
resolution panel to adjudicate appeals of
determinations made by a tribal
employer regarding an individual’s
status as a tribal employee; (8) the tribal
employer’s agreement to supply
necessary enrollment information,
payment of the tribal employer and
tribal employee share of premium and
payment of an administrative fee to the
paymaster; (9) the tribal employer’s
agreement to notify OPM in the event
that the tribal employer is no longer
carrying out at least one program under
the ISDEAA or title V of IHCIA, and (10)
the tribal employer’s agreement to abide
by other terms and conditions of
participation.
Section 890.1404(c) allows a tribal
employer to elect to purchase FEHB at
any time. The election to purchase
FEHB will commit the tribal employer
to purchase FEHB at least through the
remainder of the calendar year in which
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the election is made. Elections will be
automatically renewable year to year
unless revoked by the tribal employer or
terminated by OPM. Section
890.1404(d) allows a tribal employer to
revoke its election to purchase FEHB
with 60 days’ notice to OPM. If a tribal
employer revokes an election to
purchase FEHB, that tribal employer
may only re-elect to purchase FEHB
during the first annual open enrollment
season that occurs at least twelve
months after the election is revoked. If
the tribal employer revokes an election
to participate a second time, the tribal
employer may only re-elect to purchase
FEHB during the first open season that
falls at least twenty-four months after
the second revocation. Section
890.1404(f) states that OPM maintains
final authority to determine entitlement
of a tribal employer to purchase FEHB.
A tribal employer that begins to carry
out a program under ISDEAA or Title V
of IHCIA after this rule is effective may
notify OPM of its intention to purchase
benefits after the entitlement is
established. Section 890.1407 states that
a tribal employer electing to purchase
FEHB for its employees may not
concurrently make contributions toward
non-FEHB tribal employer-sponsored
health insurance to any tribal employee
eligible for FEHB. However, a tribal
employer electing FEHB may
concurrently offer non-FEHB dental,
vision, or disability coverage. This
requirement will keep tribal employees’
enrollment conditions aligned with
those of Federal employees.
Interaction With Other FEHB Coverage
Section 890.1405(f) establishes that
eligibility to enroll in FEHB does not
cause any tribal employee to be
identified or characterized as a Federal
employee, nor does it convey any
additional rights or privileges of Federal
employment. There may be
circumstances in which a tribal
employee is also an FEHB-eligible
Federal employee. In such a case, the
tribal employee may participate in
FEHB through either employer. A tribal
employee who is also a Federal
employee cannot enroll in FEHB
through both employers. FEHB
enrollments may be transferred between
Federal employing offices and tribal
employers in a similar manner as
transfer of enrollments between Federal
agencies.
Initial Tribal Employee Enrollment
Period, Open Season, and QLEs
Section 890.1405 describes tribal
employee eligibility for enrollment in
FEHB. Tribal employees will be able to
enroll in FEHB after an agreement
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between the tribal employer and OPM is
signed. The effective date of coverage
will be decided by the tribal employer
and OPM. A third party paymaster will
handle payroll functions including
remitting tribal employer and tribal
employee contributions to FEHB
premiums.
The enrollment process for tribal
employees into FEHB is described in
§ 890.1407. Tribal employers must
establish an initial enrollment
opportunity for tribal employees. After
that initial enrollment opportunity, for
plan years during which a tribal
employer’s election to offer FEHB is in
place, the FEHB enrollment period for
tribal employees will be the same as for
Federal employees: Up to 60 days after
becoming a new tribal employee or
changing to an eligible position, during
the annual open season, or 31 days
before to 60 days after experiencing a
qualifying life event. The effective date
of enrollment for tribal employees will
be the same as for Federal employees
under parts 890 or 892, depending on
premium conversion status. Upon
enrollment in the FEHB Program, tribal
employees will choose among the same
nationwide and local FEHB plans that
are available to Federal employees.
Section 890.1408 describes the
circumstances under which a tribal
employee may change enrollment type,
plan, or option. These changes are
allowed and will take effect under the
same circumstances as for Federal
employees. Changes may be restricted if
the tribal employer has a premium
conversion plan in effect (pre-tax
treatment of premiums) and the tribal
employee has elected premium
conversion.
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Cancellation of Coverage, Decreases in
Enrollment
Section 890.1409 establishes that a
tribal employee may cancel his or her
FEHB coverage or decrease his or her
enrollment only under the same
circumstances as a Federal employee. If
the tribal employee has elected
premium conversion, this cancellation
or change is restricted.
Termination of Enrollment
Section 890.1410 establishes that
FEHB enrollment will terminate when
employment with the tribal employer
ends due to resignation, dismissal, or
retirement, or when the tribal employer
discontinues its purchase of FEHB.
Termination of enrollment does not
refer to a voluntary cancellation by the
tribal employee during a period of
continued employment. Upon
termination of enrollment, the tribal
employee will receive a 31-day
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temporary extension of coverage
without premium contribution from the
tribal employee or tribal employer and
will have an opportunity to convert to
an individual policy. Tribal employees
whose FEHB enrollment terminates due
to separation from tribal employment
(unless the separation is for gross
misconduct) are also eligible for
temporary continuation of FEHB
coverage (TCC), described at 5 U.S.C.
8905a and 5 CFR part 890 subpart K.
If an FEHB enrollment is terminated
due to the death of the tribal employee,
the tribal employee’s spouse and
covered children are entitled to a 31-day
temporary extension of coverage and
opportunity to convert to an individual
policy. Covered children, if any, may
elect TCC and may cover the tribal
employee’s surviving spouse as a
member of family.
Termination Due to Non-Payment of
Premiums
Section 890.1410(f) establishes that
insufficient payment from the tribal
employer to the paymaster can result in
termination of enrollment for all of the
tribal employer’s tribal employees
affected by the paymaster’s failure to
obtain current deposit. In such a case,
FEHB enrollment for all affected tribal
employees will be terminated according
to a process determined by OPM. FEHB
enrollment of all tribal employees
affected by the paymaster’s failure to
obtain current deposit will be
terminated effective as of midnight on
the last day of the month in which
premium payment was received. These
tribal employees will be entitled to a 31day temporary extension of coverage
without additional premium
contribution and the opportunity to
convert to an individual policy. In the
event that a tribal employer elects to
purchase FEHB and does not pay
premiums for the first month in which
payment is due, no 31-day temporary
extension of coverage or opportunity to
convert to an individual policy will be
provided. Termination of enrollment
due to non-payment of premiums in
either case will not result in an
opportunity to enroll in TCC since
current tribal employees do not meet the
conditions for TCC enrollment. Tribal
employers will have full responsibility
for communicating notice of termination
of enrollment, and accompanying rights
and obligations, to their tribal
employees. Any outstanding premium
due for coverage in arrears will be
treated as a debt owed solely by the
tribal employer.
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59911
Temporary Continuation of Coverage
(TCC)
Tribal employees and certain family
members whose FEHB coverage
terminates under certain circumstances
can elect to purchase temporary
continuation of coverage (TCC) for up to
18 or 36 months. Section 890.1411
establishes the criteria for TCC
participation for tribal employees and
their family members. In general, tribal
employees who are enrolled in FEHB
and separate from tribal employment,
except for reasons of gross misconduct,
may elect to purchase TCC. Certain
formerly covered family members,
including children or stepchildren who
no longer meet the requirements of a
covered family member, and former
spouses, may elect TCC. The surviving
spouse of a deceased enrollee who was
enrolled in FEHB is not eligible to elect
TCC, but may be covered by the TCC
enrollment of an eligible child.
The administrative fee is the same as
would apply to a former Federal
employee enrolled in TCC. The
administrative fee described in
§ 890.1413(e) would not apply to a TCC
enrollment of a tribal employee or
family member.
Non-Pay Status, Insufficient Pay, or
Change to Ineligible Position
Section 890.1412 establishes that a
tribal employee in non-pay status or
with insufficient pay to cover the
premium costs may continue FEHB
enrollment for up to 365 days. Tribal
employees in non-pay status due to
uniformed service are entitled to
continue FEHB enrollment for up to 24
months. After termination, the tribal
employee and covered family members
are entitled to a 31-day temporary
extension of coverage without premium
contribution, and conversion to an
individual policy.
Section 890.1412 also establishes that
a temporary tribal employee who has
insufficient pay to cover the employee
share of FEHB premiums may choose a
less expensive plan. If the tribal
employee does not or cannot move to a
less expensive plan, the FEHB
enrollment will be terminated and the
enrollee is entitled to a 31-day
temporary extension of coverage
without premium contribution and may
convert to an individual policy.
If a tribal employee moves from an
FEHB-eligible to a FEHB ineligible
position, the FEHB enrollment can
continue if there has not been a break
in service of more than three days. If
there has been a break in service of
longer than three days, FEHB
enrollment will terminate at midnight of
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the last day of the pay period in which
the employment status changed. Such a
tribal employee will be entitled to a 31day temporary extension of coverage
without premium contribution and may
convert to an individual policy.
Responsibilities of the Tribal Employer
Section 890.1414 describes the
responsibilities of the tribal employer.
These include premium payment,
eligibility determinations, enrollment,
establishment of appeals process,
communications regarding FEHB, and
notification requirements.
Eligibility and Enrollment Decisions
and Appeal Rights
Section 890.1415 requires that a tribal
employer establish or identify an
independent panel to resolve disputes
about eligibility of individuals for FEHB
enrollment. This panel must be
authorized to adjudicate such disputes
and enforce eligibility and enrollment
determinations. The tribal employer
must inform tribal employees of this
avenue for dispute resolution. Decisions
of the independent panel must be
written, a record of evidence considered
by the panel must be retained and
available for OPM review, and the panel
decisions remain subject to final OPM
authority.
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Filing Claims for Payment or Service;
Court Review of Disputed Claims
Section 890.1416 describes the
procedures for (1) filing claims for
payment or service; and (2) invoking the
provisions for court review of disputed
claims. Both situations will follow the
established procedures for Federal
employees.
No Continuation of FEHB Enrollment
Into Retirement From Employment
With a Tribal Employer
Section 890.1417 states that an FEHB
enrollment cannot be continued into
retirement from employment with a
tribal employer. This is a statutory
requirement as the law entitles tribal
employers to purchase FEHB for
employees but it does not extend that
entitlement to permit tribal employers
to purchase FEHB for retirees.
A Federal annuitant may continue
FEHB into retirement and any
enrollment in, or coverage as a family
member under FEHB during
employment with a tribal employer will
count toward the ‘‘five-year rule.’’ The
‘‘five-year rule’’ generally requires five
years of pre-retirement FEHB
enrollment, or coverage as a family
member, in order to continue FEHB into
retirement. Section 890.1417 further
states that a Federal annuitant who has
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continued FEHB into retirement and
who begins post-retirement employment
with a tribal employer that has elected
to purchase FEHB may transfer the
FEHB enrollment with his or her
Federal retirement system to an
enrollment with the tribal employer in
a similar manner as that used for
Federal annuitants re-employed by
Federal agencies.
No Continuation of FEHB Enrollment
for Compensationers Past 365 days
Section 890.1418 establishes that
tribal employees who are not also
Federal employees, but are receiving
worker’s compensation benefits in leave
without pay status for more than 365
days under programs run by the U.S.
Department of Labor may not be
enrolled in FEHB.
Regulatory Impact Analysis
OPM has examined the impact of this
proposed rule as required by Executive
Order 12866 and Executive Order
13563, which directs agencies to assess
all costs and benefits of available
regulatory alternatives and, if regulation
is necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public, health, and
safety effects, distributive impacts, and
equity), and based on that analysis, it
has determined that it is an
economically significant rule. A
regulatory impact analysis must be
prepared for economically significant
rules.
Need for Regulatory Action
As part of the ACA, section 10221
incorporated and enacted S. 1790, the
Indian Health Care Improvement
Reauthorization and Extension Act of
2009, resulting in the addition of section
409 to the IHCIA. Section 409 allows
tribes, tribal organizations and urban
Indian organizations carrying out
specific programs under Federal law to
purchase the rights and benefits FEHB
Program for their employees. As the
administrator of the FEHB, OPM has
extended eligibility to entitled tribal
employees within the meaning of
section 409. Section 409 has been
implemented and over 16,000 tribal
employees are currently covered by
FEHB. Federal regulations are necessary
to protect the interests of all
stakeholders, memorialize processes
and procedures, and provide
transparency.
Regulatory Baseline
The costs, benefits and transfers
assessed in remaining portions of this
regulatory impact analysis reflect
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Fmt 4702
Sfmt 4702
existing FEHB coverage of tribal
employees. This analysis is consistent
with the guidance provided in OMB
Circular A–4.
Benefits of Coverage
Health insurance coverage improves
access to health care services, including
preventive services, improves clinical
outcomes, financial security, and
decreases uncompensated care.3
Although section 409 extends FEHB to
employees of tribes, tribal organizations,
and urban Indian organizations
regardless of their status as tribal
members, the authorizing legislation for
this regulation falls under 25 U.S.C.
Chapter 18 which clearly outlines
congressional intent to ‘‘maintain and
improve the health of the Indians’’ and
identifies providing ‘‘the resources,
processes, and structure that will enable
Indian tribes and tribal members to
obtain the quantity and quality of health
care services and opportunities that will
eradicate the health disparities between
Indians and the general population of
the United States’’ as a major national
goal of the United States (section 1601).
Thus, the following section discusses
the benefits of extending health
insurance to tribal members, rather than
to tribal employees in general.
While the exact benefits of health
insurance are difficult to quantify,
evidence supports that American
Indians and Alaska Natives could
benefit more from health insurance than
the average population. According to a
2013 Kaiser Family Foundation report,
American Indians and Alaska Natives
were more likely than other nonelderly
adult Americans to report being in fair
or poor health, being overweight or
obese, having diabetes and
cardiovascular disease, and
experiencing frequent mental distress.4
They had limited access to employersponsored coverage because more were
unemployed or in low-wage jobs that
did not offer health benefits. Almost a
third of them were uninsured. More
than 90% had incomes below 400% and
60% had incomes below 138% of the
Federal poverty level. The infant
mortality rate was 150 percent higher
for Native American infants than white
infants, and the suicide rate for Native
3 See Patient Protection and Affordable Care Act;
Establishment of Exchanges and Qualified Health
Plans, Exchange Standards for Employers (CMS–
9989–FWP) and Standards Related to Reinsurance,
Risk Corridors and Risk Adjustment (CMS–9975–F)
for a more detailed description of the benefits of
health insurance.
4 Kaiser Family Foundation, ‘‘Health Coverage
and Care for American Indians and Alaska
Natives,’’ October 2013.
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Americans was two and a half times the
national rate.5
The Indian Health Service (IHS),
which provides services through a
network of hospitals, clinics, and health
stations to about 2.2 million American
Indians and Alaska Natives, has
historically been underfunded. Access
to services varies significantly by
location and funds are insufficient to
meet health care needs. According to
the Federal Disparity Index, in 2010 the
IHS funds covered less than 60% of
those needed to pay for coverage
equivalent to that of Federal
employees.6
Health services not available through
direct care must be purchased through
the Purchased/Referred Care (PRC)
(formerly Contract Health Services) 7
program. Some estimates indicate that
the PRC program has lost at least $778
million due to unfunded medical
inflation and population growth
between 1992 and 2008.8 This has
resulted in allocating of health care
services using the PRC medical priority
system, in which many patients cannot
receive care unless they are in a priority
status. In FY 2007, this under-funding
resulted in a backlog of over 300,000
health services that were not provided
because there was not enough funding.
Unfortunately, the denied/deferred
services report understates the need of
PRC resources due to data limitations
and the fact that many tribes no longer
report deferred or denied services
5 Then Senator Barack Obama, Indian Health Care
Improvement Act Amendments of 2007 Floor
Speech, U.S. Senate, January 2008.
6 The Federal Employees Health Plan Disparity
Index (hereinafter ‘‘FDI’’) is an index comparing
Indian Health Service (IHS) funding to the cost of
providing medical insurance for American Indian/
Alaska Native (AI/AN) users in a mainstream health
insurance plan such as that offered under the
Federal Employees Health Benefits Program
(FEHBP). The FDI uses actuarial methods that
control for age, sex, and health status to price health
benefits for Indian people using the FEHBP, which
is then used to make per capita health expenditure
comparisons. See https://www.nihb.org/docs/
07112013/
FY%202015%20IHS%20budget%20full%20report_
FINAL.pdf for 2010 information.
7 This program was renamed in The Consolidated
Appropriations Act of 2014 to the Purchased/
Referred Care program. Discussion in this
regulatory impact analysis provides pre-statutory
examples covering 1992–2008 and cites the 2009
budget request. Although there is currently still
major unmet need, funding for this program has
increased from $579 million in FY 2008 to $914
million in FY 2016. See the FY17 Congressional
Budget Justification at https://www.ihs.gov/
budgetformulation/includes/themes/newihstheme/
documents/FY2017CongressionalJustification.pdf
for more up to date information.
8 ‘‘The FY 2009 IHS Budget: Analysis and
Recommendations,’’ p. 22, March 17, 2008,
available at: www.npaihb.org.
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because of the expense involved in
tracking.
The sources referenced above
illustrate the health disparities specific
to the Native American population.
Expanding healthcare access to this
group not only addresses this disparity
and generates benefits to the individual,
but also generates societal benefits in
the form of decreased healthcare costs
for chronic illnesses, increased
employee productivity, and a healthier
population that are the result of
expanding access to healthcare to any
group.
Costs of Coverage
In the following section, costs
associated with this rule are analyzed
for the following groups: Tribal
employers, tribal employees, the Tribal
Insurance Processing System (TIPS) (the
system used by the current paymaster),
OPM, and FEHB carriers. Most of the
costs described below either result in a
direct benefit to the individual or are
transfers from one group to another. For
example, costs incurred by tribal
employees (premiums, deductibles,
copays, etc.) result in individual
benefits in the form of improved health
outcomes. Costs incurred by tribal
employers to cover premiums are a
benefit to tribal employees. OPM has
determined that the total dollar amounts
do meet the threshold for this to be
considered an economically significant
rule.
OPM analyzed actual fiscal year 2015
enrollment data for the over 16,000
tribal employees enrolled in the FEHB
Program and found the annual cost of
enrollment to be $168.5 million. This
includes both premiums and the
administrative fee added to each tribal
FEHB enrollment. The administrative
fee covers the costs of program
administration for the paymaster.9 A per
member per month (cost per month for
each covered individual) cost of
approximately $413 was calculated.10
Premiums in the FEHB Program have
increased between 3–6% each year for
the last five years, below increases in
the commercial market. As enrollment
increases, total spending on premium
costs will increase. However, the
administrative fee will likely decrease
as administrative costs are spread
9 This number does not include OPM’s
administrative costs to operate this program.
10 The number of enrollments was multiplied by
a family factor to estimate total covered lives
including family members. The family factor is
calculated for the FEHB Program as a whole, not
based on actual tribal enrollment. The total annual
cost was then divided by the total number of
covered lives, the result of this was divided by 12
to estimate the cost per member per month.
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59913
among a growing number of
enrollments.
Costs for Tribal Employers
To cover the cost of program
administration, this proposed rule
includes an administrative fee assessed
on a per contract basis, paid by the
tribal employer.11 OPM has contracted
with a paymaster to develop and
maintain TIPS, an online portal for the
input of enrollment data and
transmission to carriers.
For fiscal year 2015, the
administrative fee was $15.15 per
contract; for fiscal year 2016 it is $12.
This fee is adjusted to align with actual
programmatic costs. As enrollment
increases, this cost will go down as the
costs of maintaining TIPS will be spread
among more enrollments.
The cost of coverage for each tribal
employer depends upon the number of
enrollees covered, the health plans
selected by those enrollees, and the
portion of the premium paid by the
employer.
Currently, the largest number of
employees enrolled for one tribal
employer is just under 4,000 and the
smallest tribal employers have just one
employee enrolled.12 The majority of
participating tribal employers have
fewer than 150 employees enrolled,
with a program-wide median of 71
enrolled employees.
The average cost per enrollment in the
program, including the administrative
fee, is estimated at approximately
$10,172.13
Tribal employers are required by this
rule to contribute to the premium for
tribal employees at least the same as the
Federal government does for its
employees and may contribute more, up
to 100% of the premium costs. The
Federal government contribution is
statutorily defined as the lesser of 72%
of the weighted average of all premiums
or 75% of the plan premium.14 This
averages out to approximately 70% paid
by the employer, program-wide.
Based on averages for fiscal year 2015,
a tribal employer may pay from just over
$7,000 to over $40 million, depending
on the number of tribal employees
covered and percentage of premium
contributed by the tribal employer. Of
course, actual costs will vary based on
plan selection.
11 This is analogous with Federal agencies who
cover the cost of program administration without an
additional fee to employees.
12 Based on September 2015 enrollment.
13 Total annual cost (including administrative fee)
divided by number of enrollees (using September
2015 data).
14 5 U.S.C. 8906.
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Tribal employers assess the cost of
participating and recognize that
participation in the FEHB Program is a
business decision made by the
employers themselves. It often is a
decision made by comparing the cost of
other forms of health coverage and
coverage through the FEHB Program.
For those tribes that choose to
participate it can be assumed that the
benefits outweigh the costs of
participation.
and Human Services’ (HHS) Health
Insurance Reform Implementation Fund
and covered the remaining costs from
funds appropriated to OPM.
OPM continues to incur costs
associated with managing the Tribal
FEHB Program. These costs are not
covered by the administrative fee
included in each tribal enrollment. See
the chart below for Full Time
Equivalent in FY2012–FY2015.
Fiscal year
Costs for Tribal Employees
Costs for tribal employees depend
upon the plan selected, enrollment type,
and the percentage of premium
contributed by the tribal employer.
Based on FY15 data, the average cost for
an annual enrollment is approximately
$10,035 15 with an average annual
employee contribution of approximately
$3,011. The actual tribal employee
contribution varies based on the tribal
employer contribution towards the
premium.
Other costs such as copays,
deductibles, and coinsurance are also
the responsibility of the tribal employee,
to the extent that such cost sharing is
not otherwise prohibited by Federal
law. These costs differ based on plan
selection and utilization. Individual
enrollment in the FEHB Program is
voluntary so it can be assumed that the
benefits to the individual of enrolling in
tribal employer-sponsored coverage
outweigh the costs of enrollment.
Administration of TIPS
Annual costs for administering TIPS,
incurred by the paymaster, are
described in the chart below. These
costs are covered by the administrative
fee paid by tribal employers.
Dates
Costs
FY2012
FY2013
FY2014
FY2015
FTE
.................................
.................................
.................................
.................................
5.3
3.5
2.3
1.8
FEHB Carriers
The impact on carriers is relatively
small, as tribal enrollments are a very
small percentage of the over 4 million
FEHB enrollments. Premiums cover
claims costs, administrative costs, plus
a small profit known as the service
charge.
Conclusion
While this rule meets the thresholds
in Executive Orders 12866 and 13563 to
be deemed an economically significant
rule, many of the associated costs
constitute transfers among involved
parties. Under the provisions of this
rule, participation in the FEHB Program
is voluntary for both tribal employers
and tribal employees. This, in
conjunction with the relationship
between costs incurred and the benefits
of offering coverage, indicates that the
benefits of this rule outweigh the costs.
List of Subjects on 5 CFR Part 890
Administrative practice and
procedure, Government employees,
Health insurance.
U.S. Office of Personnel Management.
May 2012 (launch date)
through Sept 30, 2012 ..
2013 Fiscal year ...............
2014 Fiscal year ...............
2015 Fiscal year ...............
$1,096,932.00
1,677,293.68
1,653,397.93
1,815,660.00
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Costs for OPM
Implementation of the Tribal FEHB
Program began in fiscal year 2011. In
addition to policy development and
tribal consultation costs, OPM
contracted with a paymaster to develop
an electronic enrollment portal for tribal
employers. Development of the Tribal
Insurance Processing System (TIPS) cost
approximately $3.9 million. OPM
received approximately $3 million in
funds from the Department of Health
15 Does not include the Administrative Fee,
which is covered by tribal employers.
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For the reasons set forth in the
preamble, OPM amends 5 CFR part 890
to read as follows:
PART 890—FEDERAL EMPLOYEES
HEALTH BENEFITS PROGRAM
1. The authority citation for Part 890
is revised to read as follows:
■
Authority: 5 U.S.C. 8913; Sec. 890.303 also
issued under Sec. 50 U.S.C. 403p, 22 U.S.C.
4069c and 4069c–1; Subpart L also issued
under Sec. 599C of Public Law 101–513, 104
Stat. 2064, as amended; Sec. 890.102 also
issued under Secs. 11202(f), 11232(e),
11246(b) and (c) of Public Law 105–33, 111
Stat. 251; Sec. 721 of Public Law 105–261,
112 Stat. 2061 unless otherwise noted; Sec.
890.111 also issued under Sec. 1622(b) of
Frm 00008
Fmt 4702
2. Add new subpart N to read as
follows:
■
Subpart N—Federal Employees Health
Benefits for Employees of Certain Indian
Tribal Employers
Sec.
890.1401 Purpose.
890.1402 Definitions and deemed
references.
890.1403 Tribal employer purchase of
FEHB requires current deposit of
payment.
890.1404 Tribal employer election and
agreement to purchase FEHB.
890.1405 Tribal employees eligible for
enrollment.
890.1406 Correction of enrollment errors.
890.1407 Enrollment process; effective
dates.
890.1408 Change in enrollment type, plan,
or option.
890.1409 Cancellation of coverage or
decreases in enrollment.
890.1410 Termination of enrollment and
31-day temporary extension of coverage;
and conversion to individual policy.
890.1411 Temporary Continuation of
Coverage (TCC).
890.1412 Non-pay status, insufficient pay,
or change to ineligible position.
890.1413 Premiums and administrative fee.
890.1414 Responsibilities of the tribal
employer.
890.1415 Reconsideration of enrollment
and eligibility decisions and appeal
rights.
890.1416 Filing claims for payment or
service and court review.
890.1417 No continuation of FEHB
enrollment into retirement from
employment with a tribal employer.
890.1418 No continuation of FEHB
enrollment in compensationer status past
365 days.
Subpart N—Federal Employees Health
Benefits for Employees of Certain
Indian Tribal Employers
§ 890.1401
Beth F. Cobert,
Acting Director.
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Public Law 104–106, 110 Stat. 515. Subpart
N issued under Sec. 10221, Pub. L. 111–148,
124 Stat 935 [25 U.S.C. 1647b].
Sfmt 4702
Purpose.
This subpart sets forth the conditions
for coverage, rights, and benefits under
Chapter 89 of title 5, United States
Code, according to the provisions of 25
U.S.C. 1647b.
§ 890.1402 Definitions and deemed
references.
(a) In this subpart—
Billing unit is a subdivision of the
tribal employer’s workforce that aligns
tribal employees for purposes of
administering FEHB enrollment and
collection of payment. A billing unit
may be either governmental or
commercial or a combination of both. So
long as a tribal employer purchases
FEHB for at least one billing unit that is
carrying out at least one program under
ISDEAA or IHCIA, the tribal employer
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may purchase FEHB for other billing
units without regard to its programs.
Pay period is the interval of time for
which a paycheck is issued by the tribal
employer for work performed by the
tribal employee.
Paymaster is the entity designated by
OPM as responsible for receiving FEHB
premiums from the tribal employer,
forwarding premiums to the Employees
Health Benefits Fund, and maintaining
enrollment records for all participating
tribal employers.
Payment is the sum of the tribal
employer’s share of premium plus the
tribal employees’ share of premium plus
any administrative fees or costs required
under this subpart, due for the
enrollment, in the aggregate, of the tribal
employer’s tribal employees.
Tribal employee is a full-time or parttime common law employee of a tribal
employer. An individual is a common
law employee if, based on all the facts
and circumstances, the tribal employer
has the right to control and direct the
individual who performs the services,
not only as to the result to be
accomplished by the work but also as to
the details and means by which that
result is accomplished. This
determination is based on all facts and
circumstances and shall be guided by
the factors described by the Internal
Revenue Service in Rev. Rul. 87–41,
1987–1 C.B. 296 and referenced in Joint
Committee on Taxation report JCX–26–
07 Present Law and Background
Relating to Worker Classification for
Federal Tax Purposes, dated May 7,
2007, and shall be consistent with the
tribal employer’s determination of
common law employee status for
Federal employment tax purposes, if
any. For purposes of this subpart, tribal
employees do not include retirees or
annuitants of a tribal employer,
volunteers of a tribal employer, or
others who are not common law
employees of a tribal employer.
Categories of excluded tribal employees
are described at § 890.1405(b). FEHB
benefits available to tribal employees
are set forth in this subpart and to the
extent there exists any ambiguity or
inconsistency between this subpart and
other subparts of Part 890, the terms of
this subpart will govern FEHB benefits
available to tribal employees.
Tribal employer is an Indian tribe or
tribal organization (as those terms are
defined in 25 U.S.C. Chapter 18, ‘‘Indian
Health Care’’) carrying out at least one
program under the Indian SelfDetermination and Education
Assistance Act or an urban Indian
organization (as that term is defined in
25 U.S.C. Chapter 18, ‘‘Indian Health
Care’’) carrying out at least one program
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under the title V of the Indian Health
Care Improvement Act, provided that
the tribe, tribal organization, or urban
Indian organization certifies entitlement
to purchase FEHB according to the
process described in subpart N. FEHB
benefits that tribal employers are
entitled to purchase for their tribal
employees are set forth in this subpart
and to the extent there exists any
ambiguity or inconsistency between this
subpart and other subparts of Part 890,
the terms of this subpart will govern
FEHB benefits available for purchase by
tribal employers.
(b) In this subpart, wherever reference
is made to other subparts of Part 890:
(1) A reference to employee is deemed
a reference to tribal employee;
(2) A reference to employer is deemed
a reference to tribal employer;
(3) A reference to enrollee is deemed
a reference to a tribal employee in
whose name the enrollment is carried;
(4) A reference to employing agency,
employing office, or agency is deemed
a reference to tribal employer, and/or if
the reference involves the subject of a
paymaster function, the paymaster, as
appropriate;
(5) A reference to United States,
Federal Government, or Government in
the capacity of an employer is deemed
a reference to tribal employer;
(6) A reference to Federal Service or
Government Service is deemed a
reference to employment with a tribal
employer;
(7) A reference to annuitant, survivor
annuitant, or an individual with
entitlement to an annuity is deemed
inapplicable in the context of this
subpart; and
(8) A reference incorporated into this
subpart that does not otherwise apply to
tribal employees and tribal employers
shall have no meaning and is deemed
inapplicable in the context of this
subpart.
§ 890.1403 Tribal employer purchase of
FEHB requires current deposit of payment.
(a) A tribal employer shall be entitled
to purchase coverage, rights, and
benefits for its tribal employees under
chapter 89 of title 5, United States Code,
if payment for the coverage, rights, and
benefits for the period of employment
with such tribal employer is currently
deposited in the Employees Health
Benefits Fund.
(b) Payment will be considered
currently deposited if received by the
Employees Health Benefits Fund before,
during, or within fourteen days after the
end of the month covered by the
payment.
(c) Purchase of FEHB coverage by a
tribal employer confers all the rights
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59915
and benefits of FEHB as set forth in
subpart N to the tribal employer and
tribal employee.
§ 890.1404 Tribal employer election and
agreement to purchase FEHB.
(a) A tribal employer that intends to
purchase FEHB for its tribal employees
shall notify OPM by email or telephone.
(1) A tribal employer must purchase
FEHB for at least one billing unit
carrying out programs or activities
under the tribal employer’s ISDEAA or
IHCIA contract.
(2) For so long as a tribal employer
continues to purchase FEHB for at least
one billing unit carrying out programs
or activities under a tribal employer’s
ISDEAA or IHCIA contract, the tribal
employer may purchase FEHB for one or
more billing units without regard to
whether they are carrying out programs
or activities under the tribal employer’s
ISDEAA or IHCIA contract.
(b) A tribal employer must enter into
an agreement with OPM to purchase
FEHB. This agreement will include:
(1) The name, job title, and contact
information of the individual
responsible for health insurance
coverage decisions for the tribal
employer,
(2) The date on which the tribal
employer will begin to purchase FEHB
coverage,
(3) The approximate number of tribal
employees who will be eligible to
enroll,
(4) A certification that the eligible
tribal employees within the enrolling
billing unit will not have alternate tribal
employer-sponsored health insurance
coverage available concurrent with
FEHB,
(5) A certification and documentation
demonstrating that the tribal employer
is entitled to purchase FEHB as either:
An Indian tribe or tribal organization
carrying out at least one program under
the Indian Self-Determination and
Education Assistance Act; or an urban
Indian organization carrying out at least
one program under Title V of the Indian
Health Care Improvement Act,
(6) Agreement by the tribal employer
that its purchase of FEHB makes the
tribal employer responsible for
administering the program in
accordance with this subpart, subject to
Federal Government audit with respect
to such purchase and administration,
and subject to OPM authority to direct
the administration of the program,
including but not limited to the
correction of errors,
(7) Agreement that the tribal employer
will establish or identify an
independent dispute resolution panel to
adjudicate appeals of determinations
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made by a tribal employer regarding an
individual’s status as a tribal employee
eligible to enroll in FEHB, eligibility of
family members, and eligibility to
change enrollment. This panel must
have authority to enforce eligibility
decisions,
(8) A certification that the tribal
employer will supply necessary
enrollment information and payment to
the paymaster,
(9) Agreement to provide notice to
OPM in the event that the tribal
employer is no longer carrying out at
least one program under the ISDEAA or
title V of IHCIA, and
(10) Other terms and conditions as
appropriate.
(c) A tribal employer may make an
initial election to purchase FEHB at any
time. A tribal employer purchasing
FEHB shall commit to purchase FEHB
for at least the remainder of the calendar
year in which the agreement is signed.
Elections will be automatically
renewable year to year unless revoked
by the tribal employer or terminated by
OPM.
(d) If a tribal employer revokes the
initial election, OPM must be given 60
days notice. The tribal employer may
not re-elect to purchase FEHB until the
first annual open season that falls at
least twelve months after the revocation.
If the tribal employer revokes an
election to participate a second time, the
tribal employer may not re-elect to
purchase FEHB until the first open
season that falls at least twenty-four
months after the second revocation.
(e) OPM maintains final authority, in
consultation with the United States
Department of the Interior and the
United States Department of Health and
Human Services,to determine whether a
tribal employer is entitled to purchase
FEHB as either:
(1) An Indian tribe or tribal
organization carrying out at least one
program under the Indian SelfDetermination and Education
Assistance Act; or
(2) An urban Indian organization
carrying out at least one program under
Title V of the Indian Health Care
Improvement Act. If a tribe, tribal
organization or urban Indian
organization believes it has been
improperly denied the entitlement to
purchase FEHB, it may appeal the
denial to OPM. The appeal will be given
an independent level of review within
OPM and the decision on review will be
final.
§ 890.1405 Tribal employees eligible for
enrollment.
(a)(1) A tribal employee who is a fulltime or part-time common law
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employee of a tribal employer is eligible
to enroll in FEHB if that tribal employer
has elected to purchase FEHB coverage
for the tribal employees of that tribal
employer’s billing unit, except that a
tribal employee described in paragraph
(b) of this section is not eligible to enroll
in FEHB.
(2) Status as a tribal employee under
§ 890.1402(a) for purposes of eligibility
to enroll in FEHB is initially made
based on a reasonable determination by
the tribal employer. OPM maintains
final authority to correct errors
regarding FEHB enrollment as set forth
at § 890.1406.
(3) Retirees, annuitants, volunteers,
compensationers under Federal
worker’s disability programs past 365
days, and others who are not common
law employees of the tribal employer
are not eligible to enroll under this
subpart.
(b) The following tribal employees are
not eligible to enroll in FEHB:
(1) A tribal employee whose
employment is limited to one year or
less and who has not completed one
year of continuous employment,
including any break in service of 5 days
or less;
(2) A tribal employee who is expected
to work less than 6 months in one year;
(3) An intermittent tribal employee—
a non-full-time tribal employee without
a prearranged regular tour of duty;
(4) A beneficiary or patient employee
in a Government or tribal hospital or
home; and
(5) A tribal employee paid on a
piecework basis, except one whose work
schedule provides for full-time service
or part-time service with a regular tour
of duty.
(c) Notwithstanding paragraphs (b)(1),
(2), and (3) of this section a tribal
employee working on a temporary
appointment, a tribal employee working
on a seasonal schedule of less than 6
months in a year, or a tribal employee
working on an intermittent schedule, for
whom the tribal employer expects the
total hours in pay status (including
overtime hours) plus qualifying leave
without pay hours to be at least 130
hours per calendar month, is eligible to
enroll in FEHB according to terms
described in § 890.102(j) unless the
tribal employer provides written
notification to the Director as described
in § 890.102(k).
(d) The tribal employer initially
determines eligibility of a tribal
employee to enroll in FEHB, eligibility
of family members, and eligibility of
tribal employee to change enrollment.
The tribal employer’s initial decision
may be appealed pursuant to
§ 890.1415.
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(e) A tribal employee who is eligible
and enrolls in FEHB under this subpart
will have the option of enrolling in any
FEHB open fee-for-service plan or
health maintenance organization
(HMO), consumer driven health plan
(CDHP), or high deductible health plan
(HDHP) available to Federal employees
in the same geographic location as the
tribal employee. The tribal employee
will have the same choice of self only,
self plus one, or self and family
enrollment as is available to Federal
employees.
(f) Family members of tribal
employees will be covered by FEHB
according to terms described at
§ 890.302. Children of tribal employees,
whether married or not married, and
whether or not dependent, are covered
under a self and family enrollment or a
self plus one enrollment (if the child is
the designated covered family member)
up to the age of 26. Former spouses of
tribal employees are not former spouses
as described at 5 U.S.C. 8901(10) and
are not eligible to elect coverage under
subpart H.
(g) Eligibility for FEHB under this
subpart does not identify an individual
as a Federal employee for any purpose,
nor does it convey any additional rights
or privileges of Federal employment.
§ 890.1406
Correction of enrollment errors.
Correction of errors regarding FEHB
enrollment for tribal employees takes
place according to the terms described
in § 890.103.
§ 890.1407
dates.
Enrollment process; effective
(a) FEHB election for tribal employers.
Tribal employers may purchase FEHB
coverage for their tribal employees after
an agreement is accepted by OPM.
Tribal employers will not be permitted
to access FEHB if the tribal employer
contributes toward an alternative
employer-sponsored health insurance
plan for tribal employees within the
billing unit(s) for which the employer
seeks to purchase FEHB coverage, with
the exception of a collectively bargained
alternative plan. A stand-alone dental,
vision, or disability plan is not
considered alternative health insurance.
(b) Opportunities for tribal employees
to enroll. (1) Upon electing to purchase
FEHB, a tribal employer will establish
an initial enrollment opportunity for
tribal employees. A tribal employee’s
enrollment upon an initial enrollment
opportunity becomes effective as
prescribed by OPM.
(2) After the initial enrollment
opportunity, described in
§ 890.1407(b)(1), tribal employees are
subject to the same initial enrollment
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period, belated enrollment rules,
enrollment by proxy, and open season
as Federal employees, as described at
§ 890.301(a),(b),(c), and (f).
(3) A tribal employee who enrolls
after the initial enrollment opportunity
and who does not elect premium
conversion through his or her tribal
employer’s premium conversion plan, if
one is available, will be subject to the
enrollment and qualifying life event
rules described at § 890.301 and
effective dates described at § 890.301(b)
and (f).
(4) A tribal employee who enrolls
after the initial enrollment opportunity
and who elects premium conversion
through his or her tribal employer’s
premium conversion plan, if one is
available, will be subject to the
enrollment rules, qualifying life event
rules and effective dates described at
§§ 892.207, 892.208 and 892.210 of this
chapter (together with § 890.301 as
referenced therein).
§ 890.1408 Change in enrollment type,
plan, or option.
(a) A tribal employee enrolled under
this subpart may increase or decrease
his or her enrollment, or may change
enrollment from one plan or option to
another, as described in § 890.301 (for
tribal employees who did not elect
premium conversion) or Part 892 (for
tribal employees who did elect premium
conversion).
(b) A change in enrollment type, plan,
or option under this section becomes
effective as described in § 890.301 (for
tribal employees who did not elect
premium conversion) or Part 892 (for
tribal employees who did elect premium
conversion).
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§ 890.1409 Cancellation of coverage or
decreases in enrollment.
(a) A tribal employee enrolled under
this subpart may cancel enrollment as
described at § 890.304(d) or decrease his
or her enrollment as described at
§ 890.301. A tribal employee who does
not participate in premium conversion
may cancel his or her enrollment or
decrease his or her enrollment at any
time by request to the tribal employer,
unless there is a legally binding court or
administrative order requiring coverage
of a child as described at § 890.301(g)(3).
A tribal employee who participates in
premium conversion may cancel his or
her enrollment as provided by § 892.209
or decrease his or her enrollment as
provided by § 892.208 of this chapter
only during open season or because of
and consistent with a qualifying life
event.
(b) A cancellation of enrollment
becomes effective as described at
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§ 890.304(d). A decrease in enrollment
becomes effective as described in
§ 890.301(e)(2).
(c) A tribal employee who cancels his
or her enrollment under this section or
decreases his or her enrollment may
reenroll or increase his or her
enrollment only during open season or
because of and consistent with a
qualifying life event.
§ 890.1410 Termination of enrollment and
31-day temporary extension of coverage;
and conversion to individual policy.
(a) Tribal Employee Separation. (1)
Enrollment of a tribal employee under
this subpart terminates due to
separation from employment with the
tribal employer for reasons of
resignation, dismissal, or retirement.
Termination of enrollment is effective at
midnight of the last day of the pay
period in which the tribal employee
separates from employment.
(2) A former tribal employee who is
separated under this subpart due to
resignation, dismissal, or retirement and
covered family members are entitled to
a 31-day temporary extension of
coverage without premium contribution
and may convert to an individual policy
as described at § 890.401.
(b) Death of tribal employee. (1)
Enrollment of a tribal employee
terminates at midnight of the last day of
the pay period in which the tribal
employee dies.
(2) If, at the time of death, the
deceased tribal employee was enrolled
in self and family FEHB coverage:
(i) The surviving spouse is entitled to
a 31-day temporary extension of
coverage without premium contribution
and may convert to an individual policy
as described at § 890.401;
(ii) The covered children of the
deceased tribal employee are entitled to
a 31-day temporary extension of
coverage without premium contribution
and may convert to an individual policy
as described at § 890.401.
(3) If, at the time of death, the
deceased tribal employee was enrolled
in self plus one FEHB coverage, only the
designated covered family member is
entitled to a 31-day temporary extension
of coverage without premium
contribution and may convert to an
individual policy as described at
§ 890.401.
(c) Termination of family member
coverage. (1) Coverage of a family
member of a tribal employee who was
covered under this subpart terminates,
subject to the 31-day temporary
extension of coverage, for conversion, at
midnight of the earlier of the following
dates:
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59917
(i) The day on which he or she ceases
to be a family member; or
(ii) The day the tribal employee’s
enrollment terminates, unless the family
member is entitled to continued
coverage under the enrollment of
another.
(2) Family members who lose
coverage under this subsection are
entitled to a 31-day temporary extension
of coverage without premium
contribution and may convert to an
individual policy as described at
§ 890.401.
(d) Tribal employer loses entitlement
to purchase FEHB. (1) Coverage of a
tribal employee and family members
under this subpart, except TCC that is
already elected and in effect, terminates
at midnight of the last day of the
calendar year in which a tribal employer
is no longer entitled to purchase FEHB.
FEHB can terminate earlier at the
request of the tribal employer.
(2) Following the termination
described in § 890.1410(d)(1), enrolled
tribal employees and covered family
members are entitled to a 31-day
temporary extension of coverage
without premium contribution and may
convert to an individual policy as
described at § 890.401.
(e) Tribal employer revokes election to
purchase FEHB. If a tribal employer
voluntarily revokes its election to
purchase FEHB, tribal employees will
be entitled to a 31-day temporary
extension of coverage and may convert
to an individual policy as described at
§ 890.401. In such a case, the FEHB
enrollment terminates effective the first
day for which premium payment is not
received and the 31-day temporary
extension of coverage, for conversion
begins immediately thereafter.
(f) Failure to currently deposit
payment. (1) If payment is not currently
deposited in the Employees Health
Benefits Fund, the tribal employer’s
entitlement to purchase FEHB can be
terminated, and all enrollments affected
by the paymaster’s failure to obtain
current deposit of payment will be
terminated, for non-payment.
(2) Enrollments of all of the tribal
employer’s tribal employees affected by
the paymaster’s failure to obtain current
deposit of payment will be terminated
effective midnight of the last day of the
month for which payment was received.
(3) In the case of termination of
enrollment due to non-payment,
affected tribal employees will be
entitled to a 31-day temporary extension
of coverage without premium
contribution and may convert to an
individual policy as described at
§ 890.401. The 31-day extension of
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coverage begins immediately upon
termination of enrollment.
(4) In the event that a tribal employer
elects to purchase FEHB for its tribal
employees but does not currently
deposit payment in the first month that
it is due, the enrollment of tribal
employees affected by the paymaster’s
failure to obtain current deposit of
payment will be terminated effective
midnight of the last day of the month for
which payment was not currently
deposited. Tribal employees affected by
the paymaster’s failure to obtain current
deposit of payment will not be entitled
to a 31-day temporary extension of
coverage and may not convert to an
individual policy as described at
§ 890.401.
(5) Any outstanding premium due for
coverage in arrears will be treated as a
debt owed solely by the tribal employer.
§ 890.1411 Temporary Continuation of
Coverage (TCC).
(a) For purposes of this subpart,
temporary continuation of coverage
(TCC) is described by 5 U.S.C. 8905a
and subpart K. The administrative fee
for TCC for tribal employees is the same
as for Federal employees, with no
specific tribal administrative fee as
described in § 890.1413(e).
(b) A former tribal employee who is
separated under this subpart due to
resignation, dismissal, or retirement
may elect TCC, unless the separation is
due to gross misconduct as defined in
§ 890.1102.
(c) Eligibility for TCC for tribal
employees following procedures
provided in § 890.1103 of subpart K,
except that former spouses of tribal
employees are not eligible for TCC.
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§ 890.1412 Non-pay status, insufficient
pay, or change to ineligible position.
(a) Non-pay status for 365 days.
Enrollment of a tribal employee and
coverage of family members may
continue for up to 365 days during
which the tribal employee is in a nonpay status (as described at
§ 890.303(e)(1)) under terms described
at § 890.502(b). Enrollment terminates at
midnight of the last day of the pay
period which includes the 365th
consecutive day of nonpay status or the
last day of leave under the Family and
Medical Leave Act, whichever is later.
The tribal employee and covered family
members are entitled to a 31-day
temporary extension of coverage
without premium contribution and may
convert to an individual policy as
described at § 890.401.
(b) Insufficient Pay. If the pay of a
non-temporary tribal employee who is
enrolled in FEHB is insufficient to pay
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for the tribal employee’s share of
premiums, the tribal employer must
follow the procedure described at
§ 890.502(b). If the enrollment is
terminated due to insufficient pay, the
tribal employee and covered family
members are entitled to a 31-day
temporary extension of coverage
without premium contribution and may
convert to an individual policy as
described at § 890.401.
(c) Insufficient Pay for temporary
tribal employees. If the pay of a
temporary tribal employee who meets
eligibility requirements described at 5
U.S.C. 8906a is insufficient to pay the
tribal employee’s share of premiums as
described at § 890.304(a)(2), and the
tribal employee does not or cannot elect
a plan at a cost to him or her not in
excess of the pay, the tribal employee’s
enrollment must be terminated as
described at § 890.304(a)(2). The tribal
employee and covered family members
are entitled to a 31-day temporary
extension of coverage without premium
contribution and may convert to an
individual policy as described at
§ 890.401.
(d) Change to ineligible position. A
tribal employee who moves from an
FEHB eligible to a non-FEHB-eligible
position at a tribal employer will be
eligible to continue FEHB enrollment as
described in § 890.303(b).
(e) Non-pay status due to Uniformed
Service. (1) Enrollment of a tribal
employee and coverage of family
members terminates at midnight of the
earliest of the dates described at
§ 890.304(a)(1)(vi)–(viii). The tribal
employee and covered family members
are entitled to a 31-day temporary
extension of coverage without premium
contribution and may convert to an
individual policy as described at
§ 890.401.
(2) Enrollment is reinstated on the
date the tribal employee is restored to
duty in an eligible position with the
tribal employer upon return from
Uniformed Service, pursuant to
applicable law, provided that the tribal
employer continues to purchase FEHB
for its tribal employees in the affected
tribal employee’s billing unit on that
date.
§ 890.1413
fee.
Premiums and administrative
(a) Premium contributions and
withholdings described at §§ 890.501
and 890.502 must be paid by the tribal
employer and the tribal employee,
except that the term OPM as used in
§ 890.502(c) is deemed to be a reference
to the paymaster, as appropriate, for
purposes of this subpart. There is no
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Government contribution as that term is
used in 5 U.S.C 8906.
(b) Contribution requirements. (1)A
tribal employer must contribute at least
the monthly equivalent of the minimum
Government contribution for a specific
FEHB plan as described in 5 U.S.C.
8906;
(2) There is no cap on the percentage
of premium that a tribal employer may
contribute, as long as the contribution
and withholding arrangement is not
designed to encourage or discourage
enrollment in any particular plan or
plan option;
(3) A tribal employer may vary the
contribution amount by type of FEHB
enrollment (self only, self plus one, self
and family), providing it is done in a
uniform manner and meets the
requirements described in
§ 890.1413(b)(1) and (2); and
(4) A tribal employer may vary the
contribution amount by billing unit,
providing each billing unit meets the
requirements described in
§ 890.1413(b)(1)–(3).
(c) A tribal employer may, but is not
required to, prorate the tribal employer
and tribal employee share of premium
attributable to enrollment of its parttime tribal employees working between
16 and 32 hours per week by prorating
shares in proportion to the percentage of
time that a tribal employee in a
comparable full time position is
regularly scheduled to work.
(d) Tribal employee and tribal
employer contributions to premiums
under this subpart will be aggregated by
the tribal employer. The tribal employee
and tribal employer contributions must
be available for receipt by the paymaster
on an agreed upon date. The paymaster
will receive the premium contributions
together with the fee described at
paragraph (e) of this section and will
deposit the payment into the Employees
Health Benefits Fund described in 5
U.S.C. 8909.
(e) A fee determined annually by
OPM will be charged in addition to
premium for each enrollment of a tribal
employee. The fee may be used for other
purposes as determined by OPM. The
fee must be paid entirely by the tribal
employer as part of the payment to
purchase FEHB for tribal employees,
and must be available for collection by
the paymaster, together with the
aggregate tribal employee and tribal
employer contributions, in time to be
currently deposited into the Employees
Health Benefits Fund described in 5
U.S.C. 8909.
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§ 890.1414
employer.
Responsibilities of the tribal
(a) The tribal employer pays
premiums for tribal employees enrolled
under this subpart pursuant to
§§ 890.1403 and 890.1413.
(b) The tribal employer must
determine the eligibility of individuals
who attempt to enroll for coverage
under this subpart and enroll those it
finds eligible.
(c) The tribal employer must
determine whether eligible tribal
employees have eligible family
member(s) and allow coverage under a
self plus one or self and family
enrollment as described in § 890.302 for
those it finds eligible.
(d) The tribal employer must establish
or identify an independent dispute
resolution panel for reconsideration of
enrollment and eligibility decisions as
described in § 890.1415.
(e) The tribal employer has the
following notification responsibilities.
The tribal employer must:
(1) Notify OPM and tribal employees
in writing of intent to revoke election to
purchase FEHB at least 60 days before
such revocation described at
§ 890.1404(d);
(2) Promptly notify tribal employees
and OPM if there is a change in the
tribal employer’s entitlement to
purchase FEHB described at
§ 890.1410(d);
(3) Promptly notify affected tribal
employees of termination of enrollment
due to non-payment, the 31-day
temporary extension of coverage and its
ending date described at
§ 890.1410(f)(2)–(3); and
(4) Promptly notify affected tribal
employees of termination of enrollment
due to non-payment described at
§ 890.1410(f)(4).
ehiers on DSK5VPTVN1PROD with PROPOSALS
§ 890.1415 Reconsideration of enrollment
and eligibility decisions and appeal rights.
(a) The tribal employer shall establish
or identify an independent dispute
resolution panel to adjudicate appeals of
determinations made by a tribal
employer denying an individual’s status
as a tribal employee eligible to enroll in
FEHB or denying a change in the type
of enrollment (i.e., to or from self only
coverage) under this subpart. Such
panel shall be authorized to enforce
enrollment and eligibility decisions.
The tribal employer shall notify affected
individuals of this panel and its
functions.
(b) Under procedures set forth by the
tribal employer, an individual may file
a written request to the independent
dispute resolution panel to reconsider
an initial decision of the tribal employer
under this subpart. A reconsideration
VerDate Sep<11>2014
14:16 Aug 30, 2016
Jkt 238001
decision made by the panel must be
issued to the individual in writing and
must fully state the findings and reasons
for the findings. The panel may consider
information from the tribal employer,
the individual, or another source. The
panel must retain a file of its
documentation until December 31 of the
3rd year after the year in which the
decision was made, and must provide
the file to OPM upon request.
(c) If the panel determines that the
individual is ineligible to enroll in
FEHB as a tribal employee or to change
enrollment, the individual may request
that OPM reconsider the denial. Such a
request must be made in writing and
any decision by OPM will be binding on
the tribal employer.
(d) OPM may request a panel decision
file during the retention period
described at paragraph (b) of this
section. Panel decisions remain subject
to final OPM authority to correct errors,
as set forth in § 890.1406.
§ 890.1416 Filing claims for payment or
service and court review.
(a) Tribal employees may file claims
for payment or service as described at
§ 890.105.
(b) Tribal employees may invoke the
provisions for court review described at
§ 890.107(b)–(d).
§ 890.1417 No continuation of FEHB
enrollment into retirement from
employment with a tribal employer.
(a) An FEHB enrollment cannot be
continued into retirement from
employment with a tribal employer.
(b) A Federal annuitant may continue
FEHB enrollment into retirement from
Federal service if the requirements of 5
U.S.C. 8905(b) for carrying FEHB
coverage into retirement are satisfied
through enrollment, or coverage as a
family member, either through a Federal
employing office or a tribal employer, or
any combination thereof.
(c) A Federal annuitant who is
employed after retirement by a tribal
employer in an FEHB eligible position
may participate in FEHB through the
tribal employer. In such a case, the
Federal annuitant’s retirement system
will transfer the FEHB enrollment to the
tribal employer, in a similar manner as
for a Federal annuitant who is employed
by a Federal agency after retirement.
(d) A tribal employee who becomes a
survivor annuitant as described in
890.303(d)(2) is entitled to
reinstatement of health benefits
coverage as a Federal employee would
under the same circumstances.
PO 00000
Frm 00013
Fmt 4702
Sfmt 4702
59919
§ 890.1418 No continuation of FEHB
enrollment in compensationer status past
365 days.
A tribal employee who is not also a
Federal employee who becomes eligible
for one of the Department of Labor’s
disability compensation programs may
not continue FEHB coverage in leave
without pay status past 365 days.
[FR Doc. 2016–20566 Filed 8–30–16; 8:45 am]
BILLING CODE 6325–63–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2016–7003; Directorate
Identifier 2016–CE–015–AD]
RIN 2120–AA64
Airworthiness Directives; PILATUS
AIRCRAFT LTD. Airplanes
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Supplemental notice of
proposed rulemaking (NPRM);
reopening of the comment period.
AGENCY:
We are revising an earlier
NPRM for all PILATUS AIRCRAFT LTD.
Models PC–12, PC–12/45, PC–12/47,
and PC–12/47E airplanes that would
supersede AD 2014–22–01. This
proposed AD results from mandatory
continuing airworthiness information
(MCAI) originated by an aviation
authority of another country to identify
and correct an unsafe condition on an
aviation product. The MCAI describes
the unsafe condition as a need to
incorporate new revisions into the
Limitations section, Chapter 4, of the
FAA-approved maintenance program
(e.g., maintenance manual). We are
issuing this proposed AD to require
actions to address the unsafe condition
on these products.
DATES: We must receive comments on
this proposed AD by October 17, 2016.
ADDRESSES: You may send comments by
any of the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: (202) 493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC 20590.
• Hand Delivery: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
SUMMARY:
E:\FR\FM\31AUP1.SGM
31AUP1
Agencies
[Federal Register Volume 81, Number 169 (Wednesday, August 31, 2016)]
[Proposed Rules]
[Pages 59907-59919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20566]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 /
Proposed Rules
[[Page 59907]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 890
RIN 3206-AM40
Access to Federal Employees Health Benefits (FEHB) for Employees
of Certain Indian Tribal Employers
AGENCY: U.S. Office of Personnel Management.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing a
Notice of Proposed Rulemaking to address the implementation of certain
provisions of the Patient Protection and Affordable Care Act and the
Health Care and Education Reconciliation Act of 2010, as amended (ACA)
making Federal employee health insurance accessible to employees of
certain Indian tribal entities. The ACA includes authorization for
Indian tribes, tribal organizations, and urban Indian organizations
that carry out certain programs to purchase coverage, rights, and
benefits under the Federal Employees Health Benefits (FEHB) Program for
their employees. Tribal employers and tribal employees will be
responsible for the full cost of benefits, plus an administrative fee.
DATES: Comment date: Comments are due on or before October 31, 2016.
FOR FURTHER INFORMATION CONTACT: Chelsea Ruediger, Senior Policy
Analyst (202) 606-0004.
ADDRESSES: You may submit comments, identified by RIN number ``3206-
AM40'' using any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Chelsea Ruediger, Senior Policy Analyst, Planning and Policy
Analysis, U.S. Office of Personnel Management, 1900 E Street NW.,
Washington, DC 20415.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Office of Personnel Management (OPM) is issuing a notice
of proposed rulemaking to extend certain Federal employee benefits to
employees of certain Indian tribal employers. The Patient Protection
and Affordable Care Act (Pub. L. 111-148) and the Health Care and
Education Reconciliation Act of 2010 (Pub. L. 111-152), as amended
(ACA) extended eligibility to purchase coverage, rights, and benefits
under the Federal Employees Health Benefits (FEHB) Program to employees
of those Indian tribes and tribal organizations carrying out programs
under the Indian Self-Determination and Education Assistance Act
(ISDEAA), and urban Indian organizations carrying out programs under
title V of the Indian Health Care Improvement Act (IHCIA). This
regulation includes program rules for tribal employers and tribal
employees in accordance with chapter 89 of title 5, United States Code.
The new regulatory provisions are set forth in new subpart N, part 890
of title 5 of the Code of Federal Regulations.
These proposed rules, which codify previously issued guidance,
adopt the FEHB program for Federal employees under 5 U.S.C. 89 with
slight variations to meet the needs of the tribal population. OPM
performed consultation and developed sub-regulatory guidance in 2011-
2012 to administer the program. OPM has been operating the program
since then and tribal employers began purchasing FEHB for their
employees on March 22, 2012 with an insurance coverage effective date
of May 1, 2012. As of the publication date of this proposed rule,
19,540 tribal employees and 90 tribes are participating in the program.
These proposed rules codify the program as set forth in previous
guidance after extensive work understanding tribal population needs.
Authorizing Legislation
Section 10221 of the ACA enacted the entire text of S. 1790 as
reported on December 16, 2009 by the Senate Committee on Indian Affairs
to Public Law 111-148. S. 1790 revised and extended the IHCIA,
including adding a new section 409 to the IHCIA (codified at 25 U.S.C.
1647b).
This proposed regulation refers to tribes, tribal organizations,
and urban Indian organizations that are entitled to access insurance
under section 409 as ``tribal employers.'' Moreover, because the term
``employee'' as used in 5 U.S.C. chapter 89 is a statutorily defined
term, OPM refers to a tribal employer's employees who are eligible to
enroll in FEHB as ``tribal employees.'' \1\ This proposed regulation
establishes how FEHB enrollment will be administered, including
eligibility, tribal employer and tribal employee contribution to
premiums, the process by which tribal employers will access these
programs, the process by which tribal employees will elect coverage,
and circumstances for termination and cancellation of enrollment.
---------------------------------------------------------------------------
\1\ The ACA establishes entitlement for certain tribal employers
to purchase FEHB coverage, rights, and benefits for their tribal
employees in a manner consistent with the FEHB statute 5 U.S.C. Ch.
89. The Department of Labor reviewed this notice of proposed
rulemaking and advised that the tribal employer does not ``establish
or maintain'' an employee welfare benefit subject to Title I of
ERISA with such a purchase pursuant to the ACA, and advised that the
enrollment of tribal employees in FEHB coverage does not affect the
status of the FEHB as a governmental plan for purposes of the
exemption from title I of ERISA at 29 U.S.C. 1003(b)(1). In
addition, the Department of the Treasury, including the Internal
Revenue Service, reviewed this notice of proposed rulemaking and
advised that the enrollment of tribal employees in FEHB coverage
does not affect the status of the FEHB as a governmental plan within
the meaning of 26 U.S.C. 9832(d)(2).
---------------------------------------------------------------------------
Where practicable, this regulation provides for the administration
of benefits by and for tribal employers and tribal employees in the
same manner as these benefits are administered by and for Federal
agencies and Federal employees. There may be some instances for which
there is no established procedure in place for the Federal Government,
such as the procedure and timeline by which tribal employers certify
entitlement to purchase FEHB. When there are no established procedures
in place, OPM has proposed a procedure.
OPM has worked in consultation with tribal leaders to establish
program rules.
Tribal Consultation
Under Executive Order 13175, OPM has an obligation to engage in
``regular and meaningful consultation and collaboration with tribal
officials in the development of Federal policies that have tribal
implications.'' OPM is committed to fulfilling this obligation.
Following the passage of the ACA, OPM published a series of policy
papers
[[Page 59908]]
(found here under Outreach Documentation) regarding the implementation
of the Tribal FEHB Program. Tribes, tribal organizations, and urban
Indian organizations were given an opportunity to provide feedback on
these papers at outreach events and tribal conferences and meetings.
Written feedback was also accepted.
A Tribal Technical Workgroup composed of tribal human resource
representatives and OPM operational and policy staff was established
when developing this regulation and in support of the implementation of
the Tribal FEHB Program. The primary purpose was to ensure system
requirements for enrollment processing were completed according to the
needs of tribal employers.
Additional tribal consultative actions included collaborating with
the Department of Health and Human Services (HHS) to conduct in-person
briefings for tribal communities across the country, focusing on the
implementation of the ACA.
OPM representatives have attended more than 20 tribal conferences
and meetings to provide information and consultation about the Tribal
FEHB Program since its inception. In addition, OPM has hosted training
sessions for interested tribes and tribal organizations on numerous
occasions. Tribal Benefits Administration Letters (TBAL) are released
and distributed to participating tribal employers regularly, just as
they are for Federal agencies. Questions following the release of a
TBAL are directed to OPM's dedicated Tribal Desk. The Tribal Desk is
available during regular business hours and is answered by the OPM
staff who administer the program. Whenever possible, OPM has created
direct lines of communication and fostered collaboration between tribal
employers and OPM employees.
When important program changes occur, OPM issues Dear Tribal Leader
Letters (DTLL) to notify tribes, tribal organizations and urban Indian
organizations. An example was the DTLL issued describing the revision
of the original ``all-or-nothing'' policy. The original policy had
required a tribal employer to enroll all of their billing units. Due to
concerns raised by tribal employers, OPM amended that policy to allow
tribal employers to select which of their billing units will receive
FEHB and which will not. As a result, interest in FEHB enrollment has
increased.
OPM's obligation to consult with tribal officials is ongoing. OPM
will consider the public comment period of this proposed rule as an
important consultation period. Tribal leaders will be alerted of the
publication of this proposed rule and the process for submitting formal
comments with a DTLL. As appropriate, OPM will conduct meetings with
tribal officials to address components of this proposed rule. A DTLL
will also be issued in tandem with the publication of a final rule.
FEHB Background
The FEHB Program was established in 1960 to provide health benefits
to Federal employees, annuitants, spouses, and children. Approximately
8.2 million employees, annuitants, and family members are now covered.
Federal employees can choose among various forms of health plans,
including nationwide Fee-for-Service (FFS) plans, local Health
Maintenance Organizations (HMO), Consumer-Driven Health Plans (CDHP),
and High-Deductible Health Plans (HDHP). FEHB plans typically cover
inpatient and outpatient hospital care, primary care and specialist
doctor visits, and pharmacy benefits. Some FEHB plans offer limited
routine vision and dental benefits.
Currently, there are three FEHB enrollment categories: (1) Self
only; (2) self plus one; and (3) self and family. A self only
enrollment covers only the enrollee. A self plus one enrollment covers
the enrollee and one designated eligible family member. A self and
family enrollment covers the enrollee and all eligible family members.
Eligible family members include a spouse and/or child(ren) under age 26
(including married children, adopted children, and stepchildren). A
child age 26 or over who is incapable of self-support because of a
mental or physical disability that existed before age 26 is also an
eligible family member. A foster child may be covered if the child
lives with the employee in a parent-child relationship and the employee
expects to raise the child to adulthood.
A newly eligible Federal employee can enroll in any FEHB plan
available in his or her geographic region within 60 days of becoming
eligible. FEHB coverage is effective the first day of the pay period
after the enrollment request is received by the Federal employee's
employing office and that follows a pay period during any part of which
the employee is in pay status. Federal employees can enroll, cancel
enrollment, increase or decrease enrollment, or change plans or options
during the annual open season usually held from mid-November to mid-
December. Any changes made during open season are effective for the
following calendar year. Enrollees can also change enrollment in
conjunction with a qualifying life event (QLE), such as marriage,
divorce, birth or adoption of a child, change in employment status that
affects insurance coverage or cost, or a move outside of an HMO's
service area.
The employing Federal agency pays a Government contribution of
approximately 72 percent of the weighted average of premiums in effect
for each calendar year. The Government contribution to any individual
plan is capped at 75 percent of premium. FEHB plans generally require
enrollee cost sharing in the form of calendar year deductibles,
copayments, and/or coinsurance for covered services.
Definitions
Section 890.1402 defines several terms used in the new subpart N of
Part 890. This section also includes a series of deemed references.
Defining these terms and identifying deemed references are necessary to
make clear how OPM will modify and apply existing regulations to govern
tribal employers' purchase of FEHB for tribal employees.
The new subpart N refers to and incorporates many other subparts of
part 890 that govern how the FEHB Program functions. The deemed
references make it clear that references to statutory terms such as
``employee,'' and other terms used throughout part 890 will be deemed
references to ``tribal employee,'' and other terms as appropriate, in
context, to govern tribal employers' purchase of FEHB for its tribal
employees pursuant to the ACA.
Scope of Entitlement for Tribal Employers
Entitlement to offer FEHB coverage, rights, and benefits will be
available to any tribe, tribal organization, or urban Indian
organization carrying out at least one of the programs under the ISDEAA
or Title V of the IHCIA as specified in section 409 of the IHCIA. The
terms `` tribe,'' `` tribal organization,'' and `` urban Indian
organization'' are defined in the IHCIA. Those definitions, set forth
below, are incorporated by reference in the regulatory text at Sec.
890.1402 which defines the term `` tribal employer.'' The term ``
tribal employer'' is used to refer to any of these entities that
fulfill the requirements to be entitled to purchase FEHB for its
employees.
A tribe is any Indian tribe, band, nation, or other organized group
or community, including any Alaska Native village or group or regional
or village corporation as defined in or established pursuant to the
Alaska
[[Page 59909]]
Native Claims Settlement Act (85 Stat. 688) [43 U.S.C.A. 1601 et seq.],
which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians. 25 U.S.C. 1603(14).
A tribal organization is the recognized governing body of any
Indian tribe; any legally established organization of Indians which is
controlled, sanctioned, or chartered by such governing body or which is
democratically elected by the adult members of the Indian community to
be served by such organization and which includes the maximum
participation of Indians in all phases of its activities: That in any
case in which a contract is let or grant made to an organization to
perform services benefiting more than one Indian tribe, the approval of
each such Indian tribe shall be a prerequisite to the letting or making
of such contract or grant. 25 U.S.C. 1603(26), incorporating by
reference 25 U.S.C. 450b(l) (definition of `` tribal organization'').
An urban Indian organization is a non-profit corporate body
situated in an urban center, governed by an urban Indian controlled
board of directors, and providing for the maximum participation of all
interested Indian groups and individuals, which body is capable of
legally cooperating with other public and private entities for the
purpose of performing the activities described in section 1653(a) of
this title. 25 U.S.C. 1603(29).
For purposes of this regulation, tribes and tribal organizations
carrying out at least one program under the ISDEAA, and urban Indian
organizations carrying out at least one program under Title V of the
IHCIA, are entitled to purchase FEHB for their employees. If the tribal
employer ceases to carry out one of these programs, entitlement to
purchase FEHB ceases at the end of the calendar year in which the
tribal employer ceased to carry out one of those programs.
If OPM determines that a tribal employer is not entitled to
purchase FEHB, the tribal employer may appeal that decision to OPM. OPM
retains sole authority for deciding entitlement.
Eligible Tribal Employees
OPM has defined the term `` tribal employee'' in Sec. 890.1402
broadly to mean a common law employee of a tribal employer. This
section incorporates the regulatory standard under the Federal
employment tax regulations, (which, for this purpose, includes Federal
Insurance Contributions Act tax and Federal income tax withholding),
which generally provides that an individual is a common law employee if
the tribal employer has the right to control and direct the individual
who performs the services, not only as to the result to be accomplished
by the work but also as to the details and means by which that result
is accomplished. This determination is based on all the facts and
circumstances. The section then indicates that this determination is to
be guided by a list of 20 factors \2\ developed by the Internal Revenue
Service (IRS), or any future guidance the IRS releases related to the
common law employee relationship for Federal employment tax purposes.
Because OPM expects tribal employers to treat tribal employees
consistently for purposes of Federal employment taxation and access to
Federal insurance, the tribal employer's determination of common law
employee status for purposes of eligibility for FEHB must be consistent
with any determination of common law employee status made by the tribal
employer for Federal employment tax purposes.
---------------------------------------------------------------------------
\2\ IRS in Rev. Rul. 87-41, 1987-1 C.B. 296 and referenced in
Joint Committee on Taxation report JCX-26-07 ``Present Law and
Background Relating to Worker Classification for Federal Tax
Purposes,'' dated May 7, 2007 https://www.irs.gov/pub/irs-utl/x-26-07.pdf.
---------------------------------------------------------------------------
OPM recognizes that there may be very limited cases in which a
tribal employer has determined that a worker is a common law employee
but has also determined that no Federal employment taxes are due with
respect to the worker. Under these circumstances, OPM will defer to the
tribal employer's reasonable determination that the worker is a common
law employee for purposes of eligibility to enroll in FEHB.
Each tribal employer entitled to access Federal insurance will be
able to offer FEHB coverage, rights, and benefits to all of its tribal
employees, not just those carrying out functions under the ISDEAA or
IHCIA title V programs. OPM has determined that tribal employees (who,
by definition, are common law employees) engaged in governmental or
commercial operations, such as casino or hospitality operations, will
be eligible to enroll in FEHB if it is purchased by their tribal
employer. As discussed below, individuals who retire from employment
with a tribal employer lose their status as tribal employees upon
retirement and their enrollment will terminate.
A tribal employer carrying out programs under the ISDEAA or Title V
of the IHCIA may purchase FEHB for employees of one or more billing
units carrying out programs or activities under their contract. Once a
tribal employer has enrolled at least one billing unit carrying out
programs or activities under ISDEAA or IHCIA, the tribal employer may
enroll one or more billing units that are not carrying out programs or
activities under ISDEAA or IHCIA. Section 890.1405 establishes that all
eligible full-time and part-time tribal employees of each participating
billing unit of a tribal employer must be offered the opportunity to
enroll in FEHB. Intermittent, seasonal, and temporary tribal employees
will be treated similarly to intermittent, seasonal and temporary
Federal employees. However, under Sec. 890.102(k), the tribal employer
may choose not to extend coverage to certain intermittent, seasonal,
and temporary employees if written notification is provided to the
Director of OPM.
Tribal employers may not segment tribal employee populations by
offering a different set of health benefits to different groups of
tribal employees within a single billing unit. An exception to this
rule is if tribal employees within a billing unit are offered
alternative coverage as part of a collective bargaining agreement.
Coverage of Family Members
As described in Sec. 890.1405(e), family members of tribal
employees will be eligible for coverage in FEHB under substantially the
same terms as family members of Federal employees. One exception is
that former spouses of tribal employees may not enroll in FEHB under
the Civil Service Retirement Spouse Equity Act. This is because Spouse
Equity coverage is linked to the former spouse's entitlement to a
portion of a Federal employee's annuity. Another exception is that if
the tribal employee dies while employed, a surviving spouse cannot
continue FEHB enrollment or enroll in his or her own right, unless the
surviving spouse is also FEHB-eligible through his or her employment.
This is because continuing FEHB eligibility for surviving spouses of
Federal employees is linked to a survivor annuity.
Section 890.1406 states that correction of enrollment errors will
take place according to the same terms as for Federal employees.
Requirements for tribal employees' appeals of eligibility and
enrollment decisions are described in Sec. 890.1415.
Tribal Employer and Tribal Employee Contributions and Administrative
Fee
Section 890.1403 explains that a tribal employer is entitled to
purchase FEHB if payment, defined by Sec. 890.1402 as all premiums
plus administrative fees, are currently deposited in the Employees
Health Benefits Fund, as required by the authorizing statute. This
section
[[Page 59910]]
provides that a payment will be considered ``currently deposited'' if
it is received by the Fund before, during, or within fourteen days
after the end of the calendar month covered by the payment.
Section 890.1413 describes how payment will work for tribal
employers participating in FEHB. Tribal employer and tribal employee
contributions for FEHB will be handled similarly for tribal employees
as for Federal employees, with the tribal employer responsible for
contributing a share of premium that is at least equivalent to the
share of premium that the Federal Government contributes for Federal
employees. The percentage contribution requirements are described in 5
U.S.C. 8906. The FEHB contributions for part-time tribal employees
working between 16 and 32 hours per week may be pro-rated in accordance
with the terms applicable to part-time Federal employees. FEHB
enrollment for tribal employees on unpaid leave may be continued in a
manner similar to Federal employees on unpaid leave under 5 CFR
890.502(b), as long as the full premium is paid.
The tribal employer's FEHB contribution percentage must equal or
exceed the contribution that the Federal Government would make each
month for a Federal employee for the same plan. Tribal employers may
elect to pay a greater tribal employer contribution, but may not pay a
lesser amount than the Federal Government contribution for each plan.
There is no cap on the percentage of premium that a tribal employer may
contribute. The tribal employer may vary the contribution by type of
enrollment (self only, self plus one, self and family) but must treat
tribal employees in a uniform manner. As an example, a tribal employer
could contribute 100% for all tribal employees in self only or self
plus one enrollments and 90% for all tribal employees in self and
family enrollments. Tribal employers may not vary the tribal employer
contribution in order to encourage or discourage enrollment in any
particular plan or plan option. Tribal employers may choose to vary the
contribution amounts for each billing unit, provided each billing unit
meets the requirements set forth above.
In addition, the tribal employer is required to pay an
administrative fee, in an amount set by OPM each year, for each tribal
employee's enrollment on a monthly basis. This fee covers the costs of
a paymaster to perform the collection and remittance functions that is
performed for Federal employees by Federal payroll offices. The
paymaster is the entity designated by OPM as responsible for receiving
FEHB premiums from the tribal employer, forwarding premiums to the
Employees Health Benefits Fund, and maintaining enrollment records for
all participating tribal employers. Tribal employers may not charge
this fee to tribal employees. The total aggregate amount for tribal
employees' and tribal employer's share of the premium and the
administrative fee must be available for receipt by the paymaster on an
agreed upon date set in the agreement with the tribal employer.
Tribal Employers' Entitlement and Election to Purchase FEHB
Section 890.1404 establishes a process by which tribal employers
may demonstrate entitlement and elect to purchase, FEHB for their
tribal employees. The tribal employer must notify OPM by email or
telephone of the intention to purchase FEHB. Through an agreement
described in Sec. 890.1404(b), OPM will confirm: (1) The tribal
employer's contact information; (2) the date that FEHB coverage will
begin; (3) the approximate number of tribal employees eligible to
enroll; (4) the tribal employer's agreement not to make available to
FEHB-eligible tribal employees alternate tribal employer-sponsored
health insurance coverage concurrent with FEHB; (5) the tribal employer
is entitled to participate in the FEHB by carrying out at least one
program under ISDEAA or title V of IHCIA; (6) the tribal employer's
acknowledgement that participation in FEHB makes the tribal employer
subject to Federal Government audit with respect to such participation
and to OPM authority to direct the administration of the program; (7)
the tribal employer's agreement to establish or identify an independent
dispute resolution panel to adjudicate appeals of determinations made
by a tribal employer regarding an individual's status as a tribal
employee; (8) the tribal employer's agreement to supply necessary
enrollment information, payment of the tribal employer and tribal
employee share of premium and payment of an administrative fee to the
paymaster; (9) the tribal employer's agreement to notify OPM in the
event that the tribal employer is no longer carrying out at least one
program under the ISDEAA or title V of IHCIA, and (10) the tribal
employer's agreement to abide by other terms and conditions of
participation.
Section 890.1404(c) allows a tribal employer to elect to purchase
FEHB at any time. The election to purchase FEHB will commit the tribal
employer to purchase FEHB at least through the remainder of the
calendar year in which the election is made. Elections will be
automatically renewable year to year unless revoked by the tribal
employer or terminated by OPM. Section 890.1404(d) allows a tribal
employer to revoke its election to purchase FEHB with 60 days' notice
to OPM. If a tribal employer revokes an election to purchase FEHB, that
tribal employer may only re-elect to purchase FEHB during the first
annual open enrollment season that occurs at least twelve months after
the election is revoked. If the tribal employer revokes an election to
participate a second time, the tribal employer may only re-elect to
purchase FEHB during the first open season that falls at least twenty-
four months after the second revocation. Section 890.1404(f) states
that OPM maintains final authority to determine entitlement of a tribal
employer to purchase FEHB.
A tribal employer that begins to carry out a program under ISDEAA
or Title V of IHCIA after this rule is effective may notify OPM of its
intention to purchase benefits after the entitlement is established.
Section 890.1407 states that a tribal employer electing to purchase
FEHB for its employees may not concurrently make contributions toward
non-FEHB tribal employer-sponsored health insurance to any tribal
employee eligible for FEHB. However, a tribal employer electing FEHB
may concurrently offer non-FEHB dental, vision, or disability coverage.
This requirement will keep tribal employees' enrollment conditions
aligned with those of Federal employees.
Interaction With Other FEHB Coverage
Section 890.1405(f) establishes that eligibility to enroll in FEHB
does not cause any tribal employee to be identified or characterized as
a Federal employee, nor does it convey any additional rights or
privileges of Federal employment. There may be circumstances in which a
tribal employee is also an FEHB-eligible Federal employee. In such a
case, the tribal employee may participate in FEHB through either
employer. A tribal employee who is also a Federal employee cannot
enroll in FEHB through both employers. FEHB enrollments may be
transferred between Federal employing offices and tribal employers in a
similar manner as transfer of enrollments between Federal agencies.
Initial Tribal Employee Enrollment Period, Open Season, and QLEs
Section 890.1405 describes tribal employee eligibility for
enrollment in FEHB. Tribal employees will be able to enroll in FEHB
after an agreement
[[Page 59911]]
between the tribal employer and OPM is signed. The effective date of
coverage will be decided by the tribal employer and OPM. A third party
paymaster will handle payroll functions including remitting tribal
employer and tribal employee contributions to FEHB premiums.
The enrollment process for tribal employees into FEHB is described
in Sec. 890.1407. Tribal employers must establish an initial
enrollment opportunity for tribal employees. After that initial
enrollment opportunity, for plan years during which a tribal employer's
election to offer FEHB is in place, the FEHB enrollment period for
tribal employees will be the same as for Federal employees: Up to 60
days after becoming a new tribal employee or changing to an eligible
position, during the annual open season, or 31 days before to 60 days
after experiencing a qualifying life event. The effective date of
enrollment for tribal employees will be the same as for Federal
employees under parts 890 or 892, depending on premium conversion
status. Upon enrollment in the FEHB Program, tribal employees will
choose among the same nationwide and local FEHB plans that are
available to Federal employees.
Section 890.1408 describes the circumstances under which a tribal
employee may change enrollment type, plan, or option. These changes are
allowed and will take effect under the same circumstances as for
Federal employees. Changes may be restricted if the tribal employer has
a premium conversion plan in effect (pre-tax treatment of premiums) and
the tribal employee has elected premium conversion.
Cancellation of Coverage, Decreases in Enrollment
Section 890.1409 establishes that a tribal employee may cancel his
or her FEHB coverage or decrease his or her enrollment only under the
same circumstances as a Federal employee. If the tribal employee has
elected premium conversion, this cancellation or change is restricted.
Termination of Enrollment
Section 890.1410 establishes that FEHB enrollment will terminate
when employment with the tribal employer ends due to resignation,
dismissal, or retirement, or when the tribal employer discontinues its
purchase of FEHB. Termination of enrollment does not refer to a
voluntary cancellation by the tribal employee during a period of
continued employment. Upon termination of enrollment, the tribal
employee will receive a 31-day temporary extension of coverage without
premium contribution from the tribal employee or tribal employer and
will have an opportunity to convert to an individual policy. Tribal
employees whose FEHB enrollment terminates due to separation from
tribal employment (unless the separation is for gross misconduct) are
also eligible for temporary continuation of FEHB coverage (TCC),
described at 5 U.S.C. 8905a and 5 CFR part 890 subpart K.
If an FEHB enrollment is terminated due to the death of the tribal
employee, the tribal employee's spouse and covered children are
entitled to a 31-day temporary extension of coverage and opportunity to
convert to an individual policy. Covered children, if any, may elect
TCC and may cover the tribal employee's surviving spouse as a member of
family.
Termination Due to Non-Payment of Premiums
Section 890.1410(f) establishes that insufficient payment from the
tribal employer to the paymaster can result in termination of
enrollment for all of the tribal employer's tribal employees affected
by the paymaster's failure to obtain current deposit. In such a case,
FEHB enrollment for all affected tribal employees will be terminated
according to a process determined by OPM. FEHB enrollment of all tribal
employees affected by the paymaster's failure to obtain current deposit
will be terminated effective as of midnight on the last day of the
month in which premium payment was received. These tribal employees
will be entitled to a 31-day temporary extension of coverage without
additional premium contribution and the opportunity to convert to an
individual policy. In the event that a tribal employer elects to
purchase FEHB and does not pay premiums for the first month in which
payment is due, no 31-day temporary extension of coverage or
opportunity to convert to an individual policy will be provided.
Termination of enrollment due to non-payment of premiums in either case
will not result in an opportunity to enroll in TCC since current tribal
employees do not meet the conditions for TCC enrollment. Tribal
employers will have full responsibility for communicating notice of
termination of enrollment, and accompanying rights and obligations, to
their tribal employees. Any outstanding premium due for coverage in
arrears will be treated as a debt owed solely by the tribal employer.
Temporary Continuation of Coverage (TCC)
Tribal employees and certain family members whose FEHB coverage
terminates under certain circumstances can elect to purchase temporary
continuation of coverage (TCC) for up to 18 or 36 months. Section
890.1411 establishes the criteria for TCC participation for tribal
employees and their family members. In general, tribal employees who
are enrolled in FEHB and separate from tribal employment, except for
reasons of gross misconduct, may elect to purchase TCC. Certain
formerly covered family members, including children or stepchildren who
no longer meet the requirements of a covered family member, and former
spouses, may elect TCC. The surviving spouse of a deceased enrollee who
was enrolled in FEHB is not eligible to elect TCC, but may be covered
by the TCC enrollment of an eligible child.
The administrative fee is the same as would apply to a former
Federal employee enrolled in TCC. The administrative fee described in
Sec. 890.1413(e) would not apply to a TCC enrollment of a tribal
employee or family member.
Non-Pay Status, Insufficient Pay, or Change to Ineligible Position
Section 890.1412 establishes that a tribal employee in non-pay
status or with insufficient pay to cover the premium costs may continue
FEHB enrollment for up to 365 days. Tribal employees in non-pay status
due to uniformed service are entitled to continue FEHB enrollment for
up to 24 months. After termination, the tribal employee and covered
family members are entitled to a 31-day temporary extension of coverage
without premium contribution, and conversion to an individual policy.
Section 890.1412 also establishes that a temporary tribal employee
who has insufficient pay to cover the employee share of FEHB premiums
may choose a less expensive plan. If the tribal employee does not or
cannot move to a less expensive plan, the FEHB enrollment will be
terminated and the enrollee is entitled to a 31-day temporary extension
of coverage without premium contribution and may convert to an
individual policy.
If a tribal employee moves from an FEHB-eligible to a FEHB
ineligible position, the FEHB enrollment can continue if there has not
been a break in service of more than three days. If there has been a
break in service of longer than three days, FEHB enrollment will
terminate at midnight of
[[Page 59912]]
the last day of the pay period in which the employment status changed.
Such a tribal employee will be entitled to a 31-day temporary extension
of coverage without premium contribution and may convert to an
individual policy.
Responsibilities of the Tribal Employer
Section 890.1414 describes the responsibilities of the tribal
employer. These include premium payment, eligibility determinations,
enrollment, establishment of appeals process, communications regarding
FEHB, and notification requirements.
Eligibility and Enrollment Decisions and Appeal Rights
Section 890.1415 requires that a tribal employer establish or
identify an independent panel to resolve disputes about eligibility of
individuals for FEHB enrollment. This panel must be authorized to
adjudicate such disputes and enforce eligibility and enrollment
determinations. The tribal employer must inform tribal employees of
this avenue for dispute resolution. Decisions of the independent panel
must be written, a record of evidence considered by the panel must be
retained and available for OPM review, and the panel decisions remain
subject to final OPM authority.
Filing Claims for Payment or Service; Court Review of Disputed Claims
Section 890.1416 describes the procedures for (1) filing claims for
payment or service; and (2) invoking the provisions for court review of
disputed claims. Both situations will follow the established procedures
for Federal employees.
No Continuation of FEHB Enrollment Into Retirement From Employment With
a Tribal Employer
Section 890.1417 states that an FEHB enrollment cannot be continued
into retirement from employment with a tribal employer. This is a
statutory requirement as the law entitles tribal employers to purchase
FEHB for employees but it does not extend that entitlement to permit
tribal employers to purchase FEHB for retirees.
A Federal annuitant may continue FEHB into retirement and any
enrollment in, or coverage as a family member under FEHB during
employment with a tribal employer will count toward the ``five-year
rule.'' The ``five-year rule'' generally requires five years of pre-
retirement FEHB enrollment, or coverage as a family member, in order to
continue FEHB into retirement. Section 890.1417 further states that a
Federal annuitant who has continued FEHB into retirement and who begins
post-retirement employment with a tribal employer that has elected to
purchase FEHB may transfer the FEHB enrollment with his or her Federal
retirement system to an enrollment with the tribal employer in a
similar manner as that used for Federal annuitants re-employed by
Federal agencies.
No Continuation of FEHB Enrollment for Compensationers Past 365 days
Section 890.1418 establishes that tribal employees who are not also
Federal employees, but are receiving worker's compensation benefits in
leave without pay status for more than 365 days under programs run by
the U.S. Department of Labor may not be enrolled in FEHB.
Regulatory Impact Analysis
OPM has examined the impact of this proposed rule as required by
Executive Order 12866 and Executive Order 13563, which directs agencies
to assess all costs and benefits of available regulatory alternatives
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public, health, and safety effects, distributive impacts, and equity),
and based on that analysis, it has determined that it is an
economically significant rule. A regulatory impact analysis must be
prepared for economically significant rules.
Need for Regulatory Action
As part of the ACA, section 10221 incorporated and enacted S. 1790,
the Indian Health Care Improvement Reauthorization and Extension Act of
2009, resulting in the addition of section 409 to the IHCIA. Section
409 allows tribes, tribal organizations and urban Indian organizations
carrying out specific programs under Federal law to purchase the rights
and benefits FEHB Program for their employees. As the administrator of
the FEHB, OPM has extended eligibility to entitled tribal employees
within the meaning of section 409. Section 409 has been implemented and
over 16,000 tribal employees are currently covered by FEHB. Federal
regulations are necessary to protect the interests of all stakeholders,
memorialize processes and procedures, and provide transparency.
Regulatory Baseline
The costs, benefits and transfers assessed in remaining portions of
this regulatory impact analysis reflect existing FEHB coverage of
tribal employees. This analysis is consistent with the guidance
provided in OMB Circular A-4.
Benefits of Coverage
Health insurance coverage improves access to health care services,
including preventive services, improves clinical outcomes, financial
security, and decreases uncompensated care.\3\ Although section 409
extends FEHB to employees of tribes, tribal organizations, and urban
Indian organizations regardless of their status as tribal members, the
authorizing legislation for this regulation falls under 25 U.S.C.
Chapter 18 which clearly outlines congressional intent to ``maintain
and improve the health of the Indians'' and identifies providing ``the
resources, processes, and structure that will enable Indian tribes and
tribal members to obtain the quantity and quality of health care
services and opportunities that will eradicate the health disparities
between Indians and the general population of the United States'' as a
major national goal of the United States (section 1601). Thus, the
following section discusses the benefits of extending health insurance
to tribal members, rather than to tribal employees in general.
---------------------------------------------------------------------------
\3\ See Patient Protection and Affordable Care Act;
Establishment of Exchanges and Qualified Health Plans, Exchange
Standards for Employers (CMS-9989-FWP) and Standards Related to
Reinsurance, Risk Corridors and Risk Adjustment (CMS-9975-F) for a
more detailed description of the benefits of health insurance.
---------------------------------------------------------------------------
While the exact benefits of health insurance are difficult to
quantify, evidence supports that American Indians and Alaska Natives
could benefit more from health insurance than the average population.
According to a 2013 Kaiser Family Foundation report, American Indians
and Alaska Natives were more likely than other nonelderly adult
Americans to report being in fair or poor health, being overweight or
obese, having diabetes and cardiovascular disease, and experiencing
frequent mental distress.\4\ They had limited access to employer-
sponsored coverage because more were unemployed or in low-wage jobs
that did not offer health benefits. Almost a third of them were
uninsured. More than 90% had incomes below 400% and 60% had incomes
below 138% of the Federal poverty level. The infant mortality rate was
150 percent higher for Native American infants than white infants, and
the suicide rate for Native
[[Page 59913]]
Americans was two and a half times the national rate.\5\
---------------------------------------------------------------------------
\4\ Kaiser Family Foundation, ``Health Coverage and Care for
American Indians and Alaska Natives,'' October 2013.
\5\ Then Senator Barack Obama, Indian Health Care Improvement
Act Amendments of 2007 Floor Speech, U.S. Senate, January 2008.
---------------------------------------------------------------------------
The Indian Health Service (IHS), which provides services through a
network of hospitals, clinics, and health stations to about 2.2 million
American Indians and Alaska Natives, has historically been underfunded.
Access to services varies significantly by location and funds are
insufficient to meet health care needs. According to the Federal
Disparity Index, in 2010 the IHS funds covered less than 60% of those
needed to pay for coverage equivalent to that of Federal employees.\6\
---------------------------------------------------------------------------
\6\ The Federal Employees Health Plan Disparity Index
(hereinafter ``FDI'') is an index comparing Indian Health Service
(IHS) funding to the cost of providing medical insurance for
American Indian/Alaska Native (AI/AN) users in a mainstream health
insurance plan such as that offered under the Federal Employees
Health Benefits Program (FEHBP). The FDI uses actuarial methods that
control for age, sex, and health status to price health benefits for
Indian people using the FEHBP, which is then used to make per capita
health expenditure comparisons. See https://www.nihb.org/docs/07112013/FY%202015%20IHS%20budget%20full%20report_FINAL.pdf for 2010
information.
---------------------------------------------------------------------------
Health services not available through direct care must be purchased
through the Purchased/Referred Care (PRC) (formerly Contract Health
Services) \7\ program. Some estimates indicate that the PRC program has
lost at least $778 million due to unfunded medical inflation and
population growth between 1992 and 2008.\8\ This has resulted in
allocating of health care services using the PRC medical priority
system, in which many patients cannot receive care unless they are in a
priority status. In FY 2007, this under-funding resulted in a backlog
of over 300,000 health services that were not provided because there
was not enough funding. Unfortunately, the denied/deferred services
report understates the need of PRC resources due to data limitations
and the fact that many tribes no longer report deferred or denied
services because of the expense involved in tracking.
---------------------------------------------------------------------------
\7\ This program was renamed in The Consolidated Appropriations
Act of 2014 to the Purchased/Referred Care program. Discussion in
this regulatory impact analysis provides pre-statutory examples
covering 1992-2008 and cites the 2009 budget request. Although there
is currently still major unmet need, funding for this program has
increased from $579 million in FY 2008 to $914 million in FY 2016.
See the FY17 Congressional Budget Justification at https://www.ihs.gov/budgetformulation/includes/themes/newihstheme/documents/FY2017CongressionalJustification.pdf for more up to date
information.
\8\ ``The FY 2009 IHS Budget: Analysis and Recommendations,'' p.
22, March 17, 2008, available at: www.npaihb.org.
---------------------------------------------------------------------------
The sources referenced above illustrate the health disparities
specific to the Native American population. Expanding healthcare access
to this group not only addresses this disparity and generates benefits
to the individual, but also generates societal benefits in the form of
decreased healthcare costs for chronic illnesses, increased employee
productivity, and a healthier population that are the result of
expanding access to healthcare to any group.
Costs of Coverage
In the following section, costs associated with this rule are
analyzed for the following groups: Tribal employers, tribal employees,
the Tribal Insurance Processing System (TIPS) (the system used by the
current paymaster), OPM, and FEHB carriers. Most of the costs described
below either result in a direct benefit to the individual or are
transfers from one group to another. For example, costs incurred by
tribal employees (premiums, deductibles, copays, etc.) result in
individual benefits in the form of improved health outcomes. Costs
incurred by tribal employers to cover premiums are a benefit to tribal
employees. OPM has determined that the total dollar amounts do meet the
threshold for this to be considered an economically significant rule.
OPM analyzed actual fiscal year 2015 enrollment data for the over
16,000 tribal employees enrolled in the FEHB Program and found the
annual cost of enrollment to be $168.5 million. This includes both
premiums and the administrative fee added to each tribal FEHB
enrollment. The administrative fee covers the costs of program
administration for the paymaster.\9\ A per member per month (cost per
month for each covered individual) cost of approximately $413 was
calculated.\10\
---------------------------------------------------------------------------
\9\ This number does not include OPM's administrative costs to
operate this program.
\10\ The number of enrollments was multiplied by a family factor
to estimate total covered lives including family members. The family
factor is calculated for the FEHB Program as a whole, not based on
actual tribal enrollment. The total annual cost was then divided by
the total number of covered lives, the result of this was divided by
12 to estimate the cost per member per month.
---------------------------------------------------------------------------
Premiums in the FEHB Program have increased between 3-6% each year
for the last five years, below increases in the commercial market. As
enrollment increases, total spending on premium costs will increase.
However, the administrative fee will likely decrease as administrative
costs are spread among a growing number of enrollments.
Costs for Tribal Employers
To cover the cost of program administration, this proposed rule
includes an administrative fee assessed on a per contract basis, paid
by the tribal employer.\11\ OPM has contracted with a paymaster to
develop and maintain TIPS, an online portal for the input of enrollment
data and transmission to carriers.
---------------------------------------------------------------------------
\11\ This is analogous with Federal agencies who cover the cost
of program administration without an additional fee to employees.
---------------------------------------------------------------------------
For fiscal year 2015, the administrative fee was $15.15 per
contract; for fiscal year 2016 it is $12. This fee is adjusted to align
with actual programmatic costs. As enrollment increases, this cost will
go down as the costs of maintaining TIPS will be spread among more
enrollments.
The cost of coverage for each tribal employer depends upon the
number of enrollees covered, the health plans selected by those
enrollees, and the portion of the premium paid by the employer.
Currently, the largest number of employees enrolled for one tribal
employer is just under 4,000 and the smallest tribal employers have
just one employee enrolled.\12\ The majority of participating tribal
employers have fewer than 150 employees enrolled, with a program-wide
median of 71 enrolled employees.
---------------------------------------------------------------------------
\12\ Based on September 2015 enrollment.
---------------------------------------------------------------------------
The average cost per enrollment in the program, including the
administrative fee, is estimated at approximately $10,172.\13\
---------------------------------------------------------------------------
\13\ Total annual cost (including administrative fee) divided by
number of enrollees (using September 2015 data).
---------------------------------------------------------------------------
Tribal employers are required by this rule to contribute to the
premium for tribal employees at least the same as the Federal
government does for its employees and may contribute more, up to 100%
of the premium costs. The Federal government contribution is
statutorily defined as the lesser of 72% of the weighted average of all
premiums or 75% of the plan premium.\14\ This averages out to
approximately 70% paid by the employer, program-wide.
---------------------------------------------------------------------------
\14\ 5 U.S.C. 8906.
---------------------------------------------------------------------------
Based on averages for fiscal year 2015, a tribal employer may pay
from just over $7,000 to over $40 million, depending on the number of
tribal employees covered and percentage of premium contributed by the
tribal employer. Of course, actual costs will vary based on plan
selection.
[[Page 59914]]
Tribal employers assess the cost of participating and recognize
that participation in the FEHB Program is a business decision made by
the employers themselves. It often is a decision made by comparing the
cost of other forms of health coverage and coverage through the FEHB
Program. For those tribes that choose to participate it can be assumed
that the benefits outweigh the costs of participation.
Costs for Tribal Employees
Costs for tribal employees depend upon the plan selected,
enrollment type, and the percentage of premium contributed by the
tribal employer. Based on FY15 data, the average cost for an annual
enrollment is approximately $10,035 \15\ with an average annual
employee contribution of approximately $3,011. The actual tribal
employee contribution varies based on the tribal employer contribution
towards the premium.
---------------------------------------------------------------------------
\15\ Does not include the Administrative Fee, which is covered
by tribal employers.
---------------------------------------------------------------------------
Other costs such as copays, deductibles, and coinsurance are also
the responsibility of the tribal employee, to the extent that such cost
sharing is not otherwise prohibited by Federal law. These costs differ
based on plan selection and utilization. Individual enrollment in the
FEHB Program is voluntary so it can be assumed that the benefits to the
individual of enrolling in tribal employer-sponsored coverage outweigh
the costs of enrollment.
Administration of TIPS
Annual costs for administering TIPS, incurred by the paymaster, are
described in the chart below. These costs are covered by the
administrative fee paid by tribal employers.
------------------------------------------------------------------------
Dates Costs
------------------------------------------------------------------------
May 2012 (launch date) through Sept 30, 2012.......... $1,096,932.00
2013 Fiscal year...................................... 1,677,293.68
2014 Fiscal year...................................... 1,653,397.93
2015 Fiscal year...................................... 1,815,660.00
------------------------------------------------------------------------
Costs for OPM
Implementation of the Tribal FEHB Program began in fiscal year
2011. In addition to policy development and tribal consultation costs,
OPM contracted with a paymaster to develop an electronic enrollment
portal for tribal employers. Development of the Tribal Insurance
Processing System (TIPS) cost approximately $3.9 million. OPM received
approximately $3 million in funds from the Department of Health and
Human Services' (HHS) Health Insurance Reform Implementation Fund and
covered the remaining costs from funds appropriated to OPM.
OPM continues to incur costs associated with managing the Tribal
FEHB Program. These costs are not covered by the administrative fee
included in each tribal enrollment. See the chart below for Full Time
Equivalent in FY2012-FY2015.
------------------------------------------------------------------------
Fiscal year FTE
------------------------------------------------------------------------
FY2012.................................................. 5.3
FY2013.................................................. 3.5
FY2014.................................................. 2.3
FY2015.................................................. 1.8
------------------------------------------------------------------------
FEHB Carriers
The impact on carriers is relatively small, as tribal enrollments
are a very small percentage of the over 4 million FEHB enrollments.
Premiums cover claims costs, administrative costs, plus a small profit
known as the service charge.
Conclusion
While this rule meets the thresholds in Executive Orders 12866 and
13563 to be deemed an economically significant rule, many of the
associated costs constitute transfers among involved parties. Under the
provisions of this rule, participation in the FEHB Program is voluntary
for both tribal employers and tribal employees. This, in conjunction
with the relationship between costs incurred and the benefits of
offering coverage, indicates that the benefits of this rule outweigh
the costs.
List of Subjects on 5 CFR Part 890
Administrative practice and procedure, Government employees, Health
insurance.
U.S. Office of Personnel Management.
Beth F. Cobert,
Acting Director.
For the reasons set forth in the preamble, OPM amends 5 CFR part
890 to read as follows:
PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM
0
1. The authority citation for Part 890 is revised to read as follows:
Authority: 5 U.S.C. 8913; Sec. 890.303 also issued under Sec. 50
U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; Subpart L also issued
under Sec. 599C of Public Law 101-513, 104 Stat. 2064, as amended;
Sec. 890.102 also issued under Secs. 11202(f), 11232(e), 11246(b)
and (c) of Public Law 105-33, 111 Stat. 251; Sec. 721 of Public Law
105-261, 112 Stat. 2061 unless otherwise noted; Sec. 890.111 also
issued under Sec. 1622(b) of Public Law 104-106, 110 Stat. 515.
Subpart N issued under Sec. 10221, Pub. L. 111-148, 124 Stat 935 [25
U.S.C. 1647b].
0
2. Add new subpart N to read as follows:
Subpart N--Federal Employees Health Benefits for Employees of Certain
Indian Tribal Employers
Sec.
890.1401 Purpose.
890.1402 Definitions and deemed references.
890.1403 Tribal employer purchase of FEHB requires current deposit
of payment.
890.1404 Tribal employer election and agreement to purchase FEHB.
890.1405 Tribal employees eligible for enrollment.
890.1406 Correction of enrollment errors.
890.1407 Enrollment process; effective dates.
890.1408 Change in enrollment type, plan, or option.
890.1409 Cancellation of coverage or decreases in enrollment.
890.1410 Termination of enrollment and 31-day temporary extension of
coverage; and conversion to individual policy.
890.1411 Temporary Continuation of Coverage (TCC).
890.1412 Non-pay status, insufficient pay, or change to ineligible
position.
890.1413 Premiums and administrative fee.
890.1414 Responsibilities of the tribal employer.
890.1415 Reconsideration of enrollment and eligibility decisions and
appeal rights.
890.1416 Filing claims for payment or service and court review.
890.1417 No continuation of FEHB enrollment into retirement from
employment with a tribal employer.
890.1418 No continuation of FEHB enrollment in compensationer status
past 365 days.
Subpart N--Federal Employees Health Benefits for Employees of
Certain Indian Tribal Employers
Sec. 890.1401 Purpose.
This subpart sets forth the conditions for coverage, rights, and
benefits under Chapter 89 of title 5, United States Code, according to
the provisions of 25 U.S.C. 1647b.
Sec. 890.1402 Definitions and deemed references.
(a) In this subpart--
Billing unit is a subdivision of the tribal employer's workforce
that aligns tribal employees for purposes of administering FEHB
enrollment and collection of payment. A billing unit may be either
governmental or commercial or a combination of both. So long as a
tribal employer purchases FEHB for at least one billing unit that is
carrying out at least one program under ISDEAA or IHCIA, the tribal
employer
[[Page 59915]]
may purchase FEHB for other billing units without regard to its
programs.
Pay period is the interval of time for which a paycheck is issued
by the tribal employer for work performed by the tribal employee.
Paymaster is the entity designated by OPM as responsible for
receiving FEHB premiums from the tribal employer, forwarding premiums
to the Employees Health Benefits Fund, and maintaining enrollment
records for all participating tribal employers.
Payment is the sum of the tribal employer's share of premium plus
the tribal employees' share of premium plus any administrative fees or
costs required under this subpart, due for the enrollment, in the
aggregate, of the tribal employer's tribal employees.
Tribal employee is a full-time or part-time common law employee of
a tribal employer. An individual is a common law employee if, based on
all the facts and circumstances, the tribal employer has the right to
control and direct the individual who performs the services, not only
as to the result to be accomplished by the work but also as to the
details and means by which that result is accomplished. This
determination is based on all facts and circumstances and shall be
guided by the factors described by the Internal Revenue Service in Rev.
Rul. 87-41, 1987-1 C.B. 296 and referenced in Joint Committee on
Taxation report JCX-26-07 Present Law and Background Relating to Worker
Classification for Federal Tax Purposes, dated May 7, 2007, and shall
be consistent with the tribal employer's determination of common law
employee status for Federal employment tax purposes, if any. For
purposes of this subpart, tribal employees do not include retirees or
annuitants of a tribal employer, volunteers of a tribal employer, or
others who are not common law employees of a tribal employer.
Categories of excluded tribal employees are described at Sec.
890.1405(b). FEHB benefits available to tribal employees are set forth
in this subpart and to the extent there exists any ambiguity or
inconsistency between this subpart and other subparts of Part 890, the
terms of this subpart will govern FEHB benefits available to tribal
employees.
Tribal employer is an Indian tribe or tribal organization (as those
terms are defined in 25 U.S.C. Chapter 18, ``Indian Health Care'')
carrying out at least one program under the Indian Self-Determination
and Education Assistance Act or an urban Indian organization (as that
term is defined in 25 U.S.C. Chapter 18, ``Indian Health Care'')
carrying out at least one program under the title V of the Indian
Health Care Improvement Act, provided that the tribe, tribal
organization, or urban Indian organization certifies entitlement to
purchase FEHB according to the process described in subpart N. FEHB
benefits that tribal employers are entitled to purchase for their
tribal employees are set forth in this subpart and to the extent there
exists any ambiguity or inconsistency between this subpart and other
subparts of Part 890, the terms of this subpart will govern FEHB
benefits available for purchase by tribal employers.
(b) In this subpart, wherever reference is made to other subparts
of Part 890:
(1) A reference to employee is deemed a reference to tribal
employee;
(2) A reference to employer is deemed a reference to tribal
employer;
(3) A reference to enrollee is deemed a reference to a tribal
employee in whose name the enrollment is carried;
(4) A reference to employing agency, employing office, or agency is
deemed a reference to tribal employer, and/or if the reference involves
the subject of a paymaster function, the paymaster, as appropriate;
(5) A reference to United States, Federal Government, or Government
in the capacity of an employer is deemed a reference to tribal
employer;
(6) A reference to Federal Service or Government Service is deemed
a reference to employment with a tribal employer;
(7) A reference to annuitant, survivor annuitant, or an individual
with entitlement to an annuity is deemed inapplicable in the context of
this subpart; and
(8) A reference incorporated into this subpart that does not
otherwise apply to tribal employees and tribal employers shall have no
meaning and is deemed inapplicable in the context of this subpart.
Sec. 890.1403 Tribal employer purchase of FEHB requires current
deposit of payment.
(a) A tribal employer shall be entitled to purchase coverage,
rights, and benefits for its tribal employees under chapter 89 of title
5, United States Code, if payment for the coverage, rights, and
benefits for the period of employment with such tribal employer is
currently deposited in the Employees Health Benefits Fund.
(b) Payment will be considered currently deposited if received by
the Employees Health Benefits Fund before, during, or within fourteen
days after the end of the month covered by the payment.
(c) Purchase of FEHB coverage by a tribal employer confers all the
rights and benefits of FEHB as set forth in subpart N to the tribal
employer and tribal employee.
Sec. 890.1404 Tribal employer election and agreement to purchase
FEHB.
(a) A tribal employer that intends to purchase FEHB for its tribal
employees shall notify OPM by email or telephone.
(1) A tribal employer must purchase FEHB for at least one billing
unit carrying out programs or activities under the tribal employer's
ISDEAA or IHCIA contract.
(2) For so long as a tribal employer continues to purchase FEHB for
at least one billing unit carrying out programs or activities under a
tribal employer's ISDEAA or IHCIA contract, the tribal employer may
purchase FEHB for one or more billing units without regard to whether
they are carrying out programs or activities under the tribal
employer's ISDEAA or IHCIA contract.
(b) A tribal employer must enter into an agreement with OPM to
purchase FEHB. This agreement will include:
(1) The name, job title, and contact information of the individual
responsible for health insurance coverage decisions for the tribal
employer,
(2) The date on which the tribal employer will begin to purchase
FEHB coverage,
(3) The approximate number of tribal employees who will be eligible
to enroll,
(4) A certification that the eligible tribal employees within the
enrolling billing unit will not have alternate tribal employer-
sponsored health insurance coverage available concurrent with FEHB,
(5) A certification and documentation demonstrating that the tribal
employer is entitled to purchase FEHB as either: An Indian tribe or
tribal organization carrying out at least one program under the Indian
Self-Determination and Education Assistance Act; or an urban Indian
organization carrying out at least one program under Title V of the
Indian Health Care Improvement Act,
(6) Agreement by the tribal employer that its purchase of FEHB
makes the tribal employer responsible for administering the program in
accordance with this subpart, subject to Federal Government audit with
respect to such purchase and administration, and subject to OPM
authority to direct the administration of the program, including but
not limited to the correction of errors,
(7) Agreement that the tribal employer will establish or identify
an independent dispute resolution panel to adjudicate appeals of
determinations
[[Page 59916]]
made by a tribal employer regarding an individual's status as a tribal
employee eligible to enroll in FEHB, eligibility of family members, and
eligibility to change enrollment. This panel must have authority to
enforce eligibility decisions,
(8) A certification that the tribal employer will supply necessary
enrollment information and payment to the paymaster,
(9) Agreement to provide notice to OPM in the event that the tribal
employer is no longer carrying out at least one program under the
ISDEAA or title V of IHCIA, and
(10) Other terms and conditions as appropriate.
(c) A tribal employer may make an initial election to purchase FEHB
at any time. A tribal employer purchasing FEHB shall commit to purchase
FEHB for at least the remainder of the calendar year in which the
agreement is signed. Elections will be automatically renewable year to
year unless revoked by the tribal employer or terminated by OPM.
(d) If a tribal employer revokes the initial election, OPM must be
given 60 days notice. The tribal employer may not re-elect to purchase
FEHB until the first annual open season that falls at least twelve
months after the revocation. If the tribal employer revokes an election
to participate a second time, the tribal employer may not re-elect to
purchase FEHB until the first open season that falls at least twenty-
four months after the second revocation.
(e) OPM maintains final authority, in consultation with the United
States Department of the Interior and the United States Department of
Health and Human Services,to determine whether a tribal employer is
entitled to purchase FEHB as either:
(1) An Indian tribe or tribal organization carrying out at least
one program under the Indian Self-Determination and Education
Assistance Act; or
(2) An urban Indian organization carrying out at least one program
under Title V of the Indian Health Care Improvement Act. If a tribe,
tribal organization or urban Indian organization believes it has been
improperly denied the entitlement to purchase FEHB, it may appeal the
denial to OPM. The appeal will be given an independent level of review
within OPM and the decision on review will be final.
Sec. 890.1405 Tribal employees eligible for enrollment.
(a)(1) A tribal employee who is a full-time or part-time common law
employee of a tribal employer is eligible to enroll in FEHB if that
tribal employer has elected to purchase FEHB coverage for the tribal
employees of that tribal employer's billing unit, except that a tribal
employee described in paragraph (b) of this section is not eligible to
enroll in FEHB.
(2) Status as a tribal employee under Sec. 890.1402(a) for
purposes of eligibility to enroll in FEHB is initially made based on a
reasonable determination by the tribal employer. OPM maintains final
authority to correct errors regarding FEHB enrollment as set forth at
Sec. 890.1406.
(3) Retirees, annuitants, volunteers, compensationers under Federal
worker's disability programs past 365 days, and others who are not
common law employees of the tribal employer are not eligible to enroll
under this subpart.
(b) The following tribal employees are not eligible to enroll in
FEHB:
(1) A tribal employee whose employment is limited to one year or
less and who has not completed one year of continuous employment,
including any break in service of 5 days or less;
(2) A tribal employee who is expected to work less than 6 months in
one year;
(3) An intermittent tribal employee--a non-full-time tribal
employee without a prearranged regular tour of duty;
(4) A beneficiary or patient employee in a Government or tribal
hospital or home; and
(5) A tribal employee paid on a piecework basis, except one whose
work schedule provides for full-time service or part-time service with
a regular tour of duty.
(c) Notwithstanding paragraphs (b)(1), (2), and (3) of this section
a tribal employee working on a temporary appointment, a tribal employee
working on a seasonal schedule of less than 6 months in a year, or a
tribal employee working on an intermittent schedule, for whom the
tribal employer expects the total hours in pay status (including
overtime hours) plus qualifying leave without pay hours to be at least
130 hours per calendar month, is eligible to enroll in FEHB according
to terms described in Sec. 890.102(j) unless the tribal employer
provides written notification to the Director as described in Sec.
890.102(k).
(d) The tribal employer initially determines eligibility of a
tribal employee to enroll in FEHB, eligibility of family members, and
eligibility of tribal employee to change enrollment. The tribal
employer's initial decision may be appealed pursuant to Sec. 890.1415.
(e) A tribal employee who is eligible and enrolls in FEHB under
this subpart will have the option of enrolling in any FEHB open fee-
for-service plan or health maintenance organization (HMO), consumer
driven health plan (CDHP), or high deductible health plan (HDHP)
available to Federal employees in the same geographic location as the
tribal employee. The tribal employee will have the same choice of self
only, self plus one, or self and family enrollment as is available to
Federal employees.
(f) Family members of tribal employees will be covered by FEHB
according to terms described at Sec. 890.302. Children of tribal
employees, whether married or not married, and whether or not
dependent, are covered under a self and family enrollment or a self
plus one enrollment (if the child is the designated covered family
member) up to the age of 26. Former spouses of tribal employees are not
former spouses as described at 5 U.S.C. 8901(10) and are not eligible
to elect coverage under subpart H.
(g) Eligibility for FEHB under this subpart does not identify an
individual as a Federal employee for any purpose, nor does it convey
any additional rights or privileges of Federal employment.
Sec. 890.1406 Correction of enrollment errors.
Correction of errors regarding FEHB enrollment for tribal employees
takes place according to the terms described in Sec. 890.103.
Sec. 890.1407 Enrollment process; effective dates.
(a) FEHB election for tribal employers. Tribal employers may
purchase FEHB coverage for their tribal employees after an agreement is
accepted by OPM. Tribal employers will not be permitted to access FEHB
if the tribal employer contributes toward an alternative employer-
sponsored health insurance plan for tribal employees within the billing
unit(s) for which the employer seeks to purchase FEHB coverage, with
the exception of a collectively bargained alternative plan. A stand-
alone dental, vision, or disability plan is not considered alternative
health insurance.
(b) Opportunities for tribal employees to enroll. (1) Upon electing
to purchase FEHB, a tribal employer will establish an initial
enrollment opportunity for tribal employees. A tribal employee's
enrollment upon an initial enrollment opportunity becomes effective as
prescribed by OPM.
(2) After the initial enrollment opportunity, described in Sec.
890.1407(b)(1), tribal employees are subject to the same initial
enrollment
[[Page 59917]]
period, belated enrollment rules, enrollment by proxy, and open season
as Federal employees, as described at Sec. 890.301(a),(b),(c), and
(f).
(3) A tribal employee who enrolls after the initial enrollment
opportunity and who does not elect premium conversion through his or
her tribal employer's premium conversion plan, if one is available,
will be subject to the enrollment and qualifying life event rules
described at Sec. 890.301 and effective dates described at Sec.
890.301(b) and (f).
(4) A tribal employee who enrolls after the initial enrollment
opportunity and who elects premium conversion through his or her tribal
employer's premium conversion plan, if one is available, will be
subject to the enrollment rules, qualifying life event rules and
effective dates described at Sec. Sec. 892.207, 892.208 and 892.210 of
this chapter (together with Sec. 890.301 as referenced therein).
Sec. 890.1408 Change in enrollment type, plan, or option.
(a) A tribal employee enrolled under this subpart may increase or
decrease his or her enrollment, or may change enrollment from one plan
or option to another, as described in Sec. 890.301 (for tribal
employees who did not elect premium conversion) or Part 892 (for tribal
employees who did elect premium conversion).
(b) A change in enrollment type, plan, or option under this section
becomes effective as described in Sec. 890.301 (for tribal employees
who did not elect premium conversion) or Part 892 (for tribal employees
who did elect premium conversion).
Sec. 890.1409 Cancellation of coverage or decreases in enrollment.
(a) A tribal employee enrolled under this subpart may cancel
enrollment as described at Sec. 890.304(d) or decrease his or her
enrollment as described at Sec. 890.301. A tribal employee who does
not participate in premium conversion may cancel his or her enrollment
or decrease his or her enrollment at any time by request to the tribal
employer, unless there is a legally binding court or administrative
order requiring coverage of a child as described at Sec.
890.301(g)(3). A tribal employee who participates in premium conversion
may cancel his or her enrollment as provided by Sec. 892.209 or
decrease his or her enrollment as provided by Sec. 892.208 of this
chapter only during open season or because of and consistent with a
qualifying life event.
(b) A cancellation of enrollment becomes effective as described at
Sec. 890.304(d). A decrease in enrollment becomes effective as
described in Sec. 890.301(e)(2).
(c) A tribal employee who cancels his or her enrollment under this
section or decreases his or her enrollment may reenroll or increase his
or her enrollment only during open season or because of and consistent
with a qualifying life event.
Sec. 890.1410 Termination of enrollment and 31-day temporary
extension of coverage; and conversion to individual policy.
(a) Tribal Employee Separation. (1) Enrollment of a tribal employee
under this subpart terminates due to separation from employment with
the tribal employer for reasons of resignation, dismissal, or
retirement. Termination of enrollment is effective at midnight of the
last day of the pay period in which the tribal employee separates from
employment.
(2) A former tribal employee who is separated under this subpart
due to resignation, dismissal, or retirement and covered family members
are entitled to a 31-day temporary extension of coverage without
premium contribution and may convert to an individual policy as
described at Sec. 890.401.
(b) Death of tribal employee. (1) Enrollment of a tribal employee
terminates at midnight of the last day of the pay period in which the
tribal employee dies.
(2) If, at the time of death, the deceased tribal employee was
enrolled in self and family FEHB coverage:
(i) The surviving spouse is entitled to a 31-day temporary
extension of coverage without premium contribution and may convert to
an individual policy as described at Sec. 890.401;
(ii) The covered children of the deceased tribal employee are
entitled to a 31-day temporary extension of coverage without premium
contribution and may convert to an individual policy as described at
Sec. 890.401.
(3) If, at the time of death, the deceased tribal employee was
enrolled in self plus one FEHB coverage, only the designated covered
family member is entitled to a 31-day temporary extension of coverage
without premium contribution and may convert to an individual policy as
described at Sec. 890.401.
(c) Termination of family member coverage. (1) Coverage of a family
member of a tribal employee who was covered under this subpart
terminates, subject to the 31-day temporary extension of coverage, for
conversion, at midnight of the earlier of the following dates:
(i) The day on which he or she ceases to be a family member; or
(ii) The day the tribal employee's enrollment terminates, unless
the family member is entitled to continued coverage under the
enrollment of another.
(2) Family members who lose coverage under this subsection are
entitled to a 31-day temporary extension of coverage without premium
contribution and may convert to an individual policy as described at
Sec. 890.401.
(d) Tribal employer loses entitlement to purchase FEHB. (1)
Coverage of a tribal employee and family members under this subpart,
except TCC that is already elected and in effect, terminates at
midnight of the last day of the calendar year in which a tribal
employer is no longer entitled to purchase FEHB. FEHB can terminate
earlier at the request of the tribal employer.
(2) Following the termination described in Sec. 890.1410(d)(1),
enrolled tribal employees and covered family members are entitled to a
31-day temporary extension of coverage without premium contribution and
may convert to an individual policy as described at Sec. 890.401.
(e) Tribal employer revokes election to purchase FEHB. If a tribal
employer voluntarily revokes its election to purchase FEHB, tribal
employees will be entitled to a 31-day temporary extension of coverage
and may convert to an individual policy as described at Sec. 890.401.
In such a case, the FEHB enrollment terminates effective the first day
for which premium payment is not received and the 31-day temporary
extension of coverage, for conversion begins immediately thereafter.
(f) Failure to currently deposit payment. (1) If payment is not
currently deposited in the Employees Health Benefits Fund, the tribal
employer's entitlement to purchase FEHB can be terminated, and all
enrollments affected by the paymaster's failure to obtain current
deposit of payment will be terminated, for non-payment.
(2) Enrollments of all of the tribal employer's tribal employees
affected by the paymaster's failure to obtain current deposit of
payment will be terminated effective midnight of the last day of the
month for which payment was received.
(3) In the case of termination of enrollment due to non-payment,
affected tribal employees will be entitled to a 31-day temporary
extension of coverage without premium contribution and may convert to
an individual policy as described at Sec. 890.401. The 31-day
extension of
[[Page 59918]]
coverage begins immediately upon termination of enrollment.
(4) In the event that a tribal employer elects to purchase FEHB for
its tribal employees but does not currently deposit payment in the
first month that it is due, the enrollment of tribal employees affected
by the paymaster's failure to obtain current deposit of payment will be
terminated effective midnight of the last day of the month for which
payment was not currently deposited. Tribal employees affected by the
paymaster's failure to obtain current deposit of payment will not be
entitled to a 31-day temporary extension of coverage and may not
convert to an individual policy as described at Sec. 890.401.
(5) Any outstanding premium due for coverage in arrears will be
treated as a debt owed solely by the tribal employer.
Sec. 890.1411 Temporary Continuation of Coverage (TCC).
(a) For purposes of this subpart, temporary continuation of
coverage (TCC) is described by 5 U.S.C. 8905a and subpart K. The
administrative fee for TCC for tribal employees is the same as for
Federal employees, with no specific tribal administrative fee as
described in Sec. 890.1413(e).
(b) A former tribal employee who is separated under this subpart
due to resignation, dismissal, or retirement may elect TCC, unless the
separation is due to gross misconduct as defined in Sec. 890.1102.
(c) Eligibility for TCC for tribal employees following procedures
provided in Sec. 890.1103 of subpart K, except that former spouses of
tribal employees are not eligible for TCC.
Sec. 890.1412 Non-pay status, insufficient pay, or change to
ineligible position.
(a) Non-pay status for 365 days. Enrollment of a tribal employee
and coverage of family members may continue for up to 365 days during
which the tribal employee is in a non-pay status (as described at Sec.
890.303(e)(1)) under terms described at Sec. 890.502(b). Enrollment
terminates at midnight of the last day of the pay period which includes
the 365th consecutive day of nonpay status or the last day of leave
under the Family and Medical Leave Act, whichever is later. The tribal
employee and covered family members are entitled to a 31-day temporary
extension of coverage without premium contribution and may convert to
an individual policy as described at Sec. 890.401.
(b) Insufficient Pay. If the pay of a non-temporary tribal employee
who is enrolled in FEHB is insufficient to pay for the tribal
employee's share of premiums, the tribal employer must follow the
procedure described at Sec. 890.502(b). If the enrollment is
terminated due to insufficient pay, the tribal employee and covered
family members are entitled to a 31-day temporary extension of coverage
without premium contribution and may convert to an individual policy as
described at Sec. 890.401.
(c) Insufficient Pay for temporary tribal employees. If the pay of
a temporary tribal employee who meets eligibility requirements
described at 5 U.S.C. 8906a is insufficient to pay the tribal
employee's share of premiums as described at Sec. 890.304(a)(2), and
the tribal employee does not or cannot elect a plan at a cost to him or
her not in excess of the pay, the tribal employee's enrollment must be
terminated as described at Sec. 890.304(a)(2). The tribal employee and
covered family members are entitled to a 31-day temporary extension of
coverage without premium contribution and may convert to an individual
policy as described at Sec. 890.401.
(d) Change to ineligible position. A tribal employee who moves from
an FEHB eligible to a non-FEHB-eligible position at a tribal employer
will be eligible to continue FEHB enrollment as described in Sec.
890.303(b).
(e) Non-pay status due to Uniformed Service. (1) Enrollment of a
tribal employee and coverage of family members terminates at midnight
of the earliest of the dates described at Sec. 890.304(a)(1)(vi)-
(viii). The tribal employee and covered family members are entitled to
a 31-day temporary extension of coverage without premium contribution
and may convert to an individual policy as described at Sec. 890.401.
(2) Enrollment is reinstated on the date the tribal employee is
restored to duty in an eligible position with the tribal employer upon
return from Uniformed Service, pursuant to applicable law, provided
that the tribal employer continues to purchase FEHB for its tribal
employees in the affected tribal employee's billing unit on that date.
Sec. 890.1413 Premiums and administrative fee.
(a) Premium contributions and withholdings described at Sec. Sec.
890.501 and 890.502 must be paid by the tribal employer and the tribal
employee, except that the term OPM as used in Sec. 890.502(c) is
deemed to be a reference to the paymaster, as appropriate, for purposes
of this subpart. There is no Government contribution as that term is
used in 5 U.S.C 8906.
(b) Contribution requirements. (1)A tribal employer must contribute
at least the monthly equivalent of the minimum Government contribution
for a specific FEHB plan as described in 5 U.S.C. 8906;
(2) There is no cap on the percentage of premium that a tribal
employer may contribute, as long as the contribution and withholding
arrangement is not designed to encourage or discourage enrollment in
any particular plan or plan option;
(3) A tribal employer may vary the contribution amount by type of
FEHB enrollment (self only, self plus one, self and family), providing
it is done in a uniform manner and meets the requirements described in
Sec. 890.1413(b)(1) and (2); and
(4) A tribal employer may vary the contribution amount by billing
unit, providing each billing unit meets the requirements described in
Sec. 890.1413(b)(1)-(3).
(c) A tribal employer may, but is not required to, prorate the
tribal employer and tribal employee share of premium attributable to
enrollment of its part-time tribal employees working between 16 and 32
hours per week by prorating shares in proportion to the percentage of
time that a tribal employee in a comparable full time position is
regularly scheduled to work.
(d) Tribal employee and tribal employer contributions to premiums
under this subpart will be aggregated by the tribal employer. The
tribal employee and tribal employer contributions must be available for
receipt by the paymaster on an agreed upon date. The paymaster will
receive the premium contributions together with the fee described at
paragraph (e) of this section and will deposit the payment into the
Employees Health Benefits Fund described in 5 U.S.C. 8909.
(e) A fee determined annually by OPM will be charged in addition to
premium for each enrollment of a tribal employee. The fee may be used
for other purposes as determined by OPM. The fee must be paid entirely
by the tribal employer as part of the payment to purchase FEHB for
tribal employees, and must be available for collection by the
paymaster, together with the aggregate tribal employee and tribal
employer contributions, in time to be currently deposited into the
Employees Health Benefits Fund described in 5 U.S.C. 8909.
[[Page 59919]]
Sec. 890.1414 Responsibilities of the tribal employer.
(a) The tribal employer pays premiums for tribal employees enrolled
under this subpart pursuant to Sec. Sec. 890.1403 and 890.1413.
(b) The tribal employer must determine the eligibility of
individuals who attempt to enroll for coverage under this subpart and
enroll those it finds eligible.
(c) The tribal employer must determine whether eligible tribal
employees have eligible family member(s) and allow coverage under a
self plus one or self and family enrollment as described in Sec.
890.302 for those it finds eligible.
(d) The tribal employer must establish or identify an independent
dispute resolution panel for reconsideration of enrollment and
eligibility decisions as described in Sec. 890.1415.
(e) The tribal employer has the following notification
responsibilities. The tribal employer must:
(1) Notify OPM and tribal employees in writing of intent to revoke
election to purchase FEHB at least 60 days before such revocation
described at Sec. 890.1404(d);
(2) Promptly notify tribal employees and OPM if there is a change
in the tribal employer's entitlement to purchase FEHB described at
Sec. 890.1410(d);
(3) Promptly notify affected tribal employees of termination of
enrollment due to non-payment, the 31-day temporary extension of
coverage and its ending date described at Sec. 890.1410(f)(2)-(3); and
(4) Promptly notify affected tribal employees of termination of
enrollment due to non-payment described at Sec. 890.1410(f)(4).
Sec. 890.1415 Reconsideration of enrollment and eligibility decisions
and appeal rights.
(a) The tribal employer shall establish or identify an independent
dispute resolution panel to adjudicate appeals of determinations made
by a tribal employer denying an individual's status as a tribal
employee eligible to enroll in FEHB or denying a change in the type of
enrollment (i.e., to or from self only coverage) under this subpart.
Such panel shall be authorized to enforce enrollment and eligibility
decisions. The tribal employer shall notify affected individuals of
this panel and its functions.
(b) Under procedures set forth by the tribal employer, an
individual may file a written request to the independent dispute
resolution panel to reconsider an initial decision of the tribal
employer under this subpart. A reconsideration decision made by the
panel must be issued to the individual in writing and must fully state
the findings and reasons for the findings. The panel may consider
information from the tribal employer, the individual, or another
source. The panel must retain a file of its documentation until
December 31 of the 3rd year after the year in which the decision was
made, and must provide the file to OPM upon request.
(c) If the panel determines that the individual is ineligible to
enroll in FEHB as a tribal employee or to change enrollment, the
individual may request that OPM reconsider the denial. Such a request
must be made in writing and any decision by OPM will be binding on the
tribal employer.
(d) OPM may request a panel decision file during the retention
period described at paragraph (b) of this section. Panel decisions
remain subject to final OPM authority to correct errors, as set forth
in Sec. 890.1406.
Sec. 890.1416 Filing claims for payment or service and court review.
(a) Tribal employees may file claims for payment or service as
described at Sec. 890.105.
(b) Tribal employees may invoke the provisions for court review
described at Sec. 890.107(b)-(d).
Sec. 890.1417 No continuation of FEHB enrollment into retirement from
employment with a tribal employer.
(a) An FEHB enrollment cannot be continued into retirement from
employment with a tribal employer.
(b) A Federal annuitant may continue FEHB enrollment into
retirement from Federal service if the requirements of 5 U.S.C. 8905(b)
for carrying FEHB coverage into retirement are satisfied through
enrollment, or coverage as a family member, either through a Federal
employing office or a tribal employer, or any combination thereof.
(c) A Federal annuitant who is employed after retirement by a
tribal employer in an FEHB eligible position may participate in FEHB
through the tribal employer. In such a case, the Federal annuitant's
retirement system will transfer the FEHB enrollment to the tribal
employer, in a similar manner as for a Federal annuitant who is
employed by a Federal agency after retirement.
(d) A tribal employee who becomes a survivor annuitant as described
in 890.303(d)(2) is entitled to reinstatement of health benefits
coverage as a Federal employee would under the same circumstances.
Sec. 890.1418 No continuation of FEHB enrollment in compensationer
status past 365 days.
A tribal employee who is not also a Federal employee who becomes
eligible for one of the Department of Labor's disability compensation
programs may not continue FEHB coverage in leave without pay status
past 365 days.
[FR Doc. 2016-20566 Filed 8-30-16; 8:45 am]
BILLING CODE 6325-63-P