Designation of Certain Services as Emergency Services Under the Antideficiency Act; Lapse in Appropriation-Enroll and Change Enrollment in FEHB Program and Continuation of Certain Insurance Benefits, 43743-43748 [2020-14474]

Download as PDF 43743 Proposed Rules Federal Register Vol. 85, No. 139 Monday, July 20, 2020 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 Parts 870, 875, 890, and 894 RIN 3206–AN99 Designation of Certain Services as Emergency Services Under the Antideficiency Act; Lapse in Appropriation—Enroll and Change Enrollment in FEHB Program and Continuation of Certain Insurance Benefits Office of Personnel Management. ACTION: Notice of proposed rulemaking. AGENCY: The Office of Personnel Management (OPM) is issuing a proposed rule to ensure the continuation of certain benefits and services that could be impacted by a lapse in appropriations. First, the proposed rule implements Section 1110 of the National Defense Authorization Act for Fiscal Year 2020 (FY20 NDAA) which designates certain Federal Employees Health Benefits (FEHB) Program and Federal Employees’ Group Life Insurance (FEGLI) services as emergency services under the Antideficiency Act. These services are deemed as services for emergencies involving the safety of human life or the protection of property. The law also provides that employees furloughed as a result of a lapse in appropriations shall, during such lapse, be deemed to be in pay status, for purposes of enrolling or changing enrollment in the FEHB Program. Secondly, the proposed rule implements a section of law which authorizes continuation of coverage under the Federal Employees Dental and Vision Insurance Program (FEDVIP) and the Federal Long Term Care Insurance Program (FLTCIP) for enrollees who are furloughed or excepted from furlough and working without pay due to a lapse in appropriations, and provides that coverage may not be cancelled as a result of nonpayment of premiums or SUMMARY: VerDate Sep<11>2014 18:03 Jul 17, 2020 Jkt 250001 other periodic charges due to such a lapse. The proposed rule also clarifies that upon the end of a lapse in appropriations, FEDVIP and FLTCIP premiums will be paid from back pay or may be paid back from another source for FLTCIP enrollees who elected to make payments directly to the Carrier. DATES: OPM must receive comments on or before August 19, 2020. ADDRESSES: You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by the following method: • Federal Rulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. All submissions received must include the agency name and docket number or RIN for this document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing at http:// www.regulations.gov as they are received without change, including any personal identifiers or contact information. FOR FURTHER INFORMATION CONTACT: Julia Elam, Program Analyst, at (202) 606– 2128 or Padma Shah, Senior Policy Analyst, at (202) 606–2128. SUPPLEMENTARY INFORMATION: Background The Federal Benefits Programs Federal Employees’ Group Life Insurance Program (FEGLI) FEGLI is administered by the United States Office of Personnel Management (OPM) in accordance with Chapter 87 of Title 5 of the U.S. Code and implementing regulations (Title 5, part 87, and Title 48, chapter 21 of the Code of Federal Regulations). As of September 30, 2019, FEGLI covers an estimated 4.3 million employees and annuitants enrolled in Basic insurance, including 1.2 million employees and annuitants enrolled in Option A— Standard insurance, 1.2 million employees and annuitants with Option B—Additional insurance that has not reduced to zero, and 924,000 employees and annuitants enrolled in Option C— Family insurance that has not reduced to zero. Eligible employees are automatically enrolled in Basic insurance unless the employee waives this coverage, and FEGLI coverage can be continued upon retirement, if certain PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 requirements are met. For most enrollees, the Government pays onethird of the premium cost for Basic insurance and the enrollee pays twothirds of the premium cost. Those enrolled in Basic insurance may also elect Optional A, B, or C insurance. Enrollees pay the full cost for all Optional insurance. Federal Employees Health Benefits (FEHB) Program The FEHB Program is administered by OPM in accordance with Title 5 Chapter 89, United States Code and implementing regulations (Title 5, Parts 890, 892 and Title 48, Chapter 16). As of March 2019, there were approximately 8.2 million Federal employees, annuitants, certain Tribal employees, and their family members covered by the FEHB Program. It is the largest employer-sponsored health insurance program in the country. The Government contribution toward premium costs for most enrollees is set in statute as the lesser of 72 percent of the weighted average premium of all health plans or 75 percent of that plan option’s premium. Using 2020 premiums with 2019 enrollments, the Government contribution toward 2020 premiums is $39.8 billion and the enrollee portion is $17.3 billion. Federal Employees Dental and Vision Insurance Program (FEDVIP) FEDVIP was created as a result of the enactment of the Federal Employee Dental and Vision Benefits Enhancement Act of 2004, Public Law 108–496. This Act required OPM to make stand-alone dental and vision insurance available to Federal employees, annuitants, and their family members. Certain TRICARE-eligible individuals who are authorized under Section 715 of the National Defense Authorization Act of Fiscal Year 2017, Public Law 114–328, recently became eligible for FEDVIP. As of November 2019, FEDVIP has 4.8 million enrollees with approximately 6.6 million covered individuals. There is no Government contribution towards premiums; enrollees pay the full cost of coverage. FEDVIP is administered by OPM in accordance with 5 U.S.C. chapters 89A and 89B and implementing regulations (5 CFR part 894). E:\FR\FM\20JYP1.SGM 20JYP1 43744 Federal Register / Vol. 85, No. 139 / Monday, July 20, 2020 / Proposed Rules Federal Long Term Care Insurance Program (FLTCIP) FLTCIP was created as a result of the enactment of the Long Term Care Security Act of 2000, Public Law 106– 265. Eligible individuals may apply for insurance to help them pay for the costs of long term care. Most Federal employees and annuitants and their qualified relatives, and active and retired members of the uniformed services and their qualified relatives, can apply for FLTCIP coverage. As of November 2019, FLTCIP has 268,000 enrollees. FLTCIP is administered by OPM in accordance with 5 U.S.C. chapter 90 and implementing regulations (5 CFR part 875). FLTCIP is an enrollee-pay-all program; there is no Government contribution toward premiums. Discussion of the Changes Designation of FEHB Program and FEGLI Program Services as Emergency Services Under the Antideficiency Act The Constitution provides that ‘‘No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by law.’’ U.S. Const. art. I, section 9, cl. 7. The Treasury is further protected through the Antideficiency Act, 31 U.S.C. 1341 et seq. Among other things, the Antideficiency Act prohibits all officers and employees of the Federal Government from entering into obligations in advance of appropriations (31 U.S.C. 1341) and it prohibits employing Federal personnel in advance of appropriations except in emergencies involving the safety of human life or the protection of property (31 U.S.C. 1342).1 Section 1110(b) of Public Law 116–92 amends 5 U.S.C. 8702 (automatic coverage of life insurance), to provide that any services by an officer or employee under Chapter 87 of Title 5 relating to FEGLI benefits shall be deemed for purposes of 31 U.S.C. 1342, as services for emergencies involving the safety of human life or the protection of property. In addition, Section 1110(a) of Public Law 116–92 amends 5 U.S.C. 8905 to provide that any services by an officer or employee for the purposes of enrolling an individual in an FEHB plan, or changing 1 U.S. Department of Justice, Office of Legal Counsel, Government Operations in the Event of a Lapse in Appropriations, memorandum from Walter Dellinger, Assistant Attorney General, for Alice Rivlin, Director, Office of Management and Budget, August 16, 1995, available at https:// www.justice.gov/opinion/file/844116/download. See also 2018 Congressional Research Service (CRS), Shutdown of the Federal Government: Causes, Processes, and Effects, available at https:// fas.org/sgp/crs/misc/RL34680.pdf. VerDate Sep<11>2014 18:03 Jul 17, 2020 Jkt 250001 the enrollment of an individual, shall be deemed, for purposes of section 1342 of Title 31, as services for emergencies involving the safety of human life or the protection of property. Therefore, the Government may continue to employ Federal officers and employees to perform such emergency services related to the FEGLI and FEHB Programs. In this proposed rule, OPM amends the FEGLI regulations by adding a new section 5 CFR 870.106 in subpart A, which designates certain FEGLI services as emergency services under the Antideficiency Act. These services include, but are not limited to, any activities related to enrollment, changing enrollment, temporary extension of coverage and conversion, eligibility, certification of coverage, and matters relating to reemployed annuitants and survivor annuitants. OPM’s current regulations do not address how or whether agencies must make changes to FEGLI for enrollees during a furlough. OPM also amends the FEHB Program regulations by adding a new section 5 CFR 890.113 in subpart A, which designates certain FEHB Program services as emergency services under the Antideficiency Act. These services include, but are not limited to, activities related to enrollment, changing enrollment, temporary extension of coverage and conversion, eligibility, and matters relating to reemployed annuitants and survivor annuitants. Under Section 1110(d) of Public Law 116–92, the amendments relating to the designation of FEHB Program and FEGLI services as emergency services shall apply to any lapse in appropriations beginning on or after December 20, 2019, the date of enactment of the FY20 NDAA. The FEHB Program and FEGLI regulations have been updated with new sections 5 CFR 890.113(b) and 5 CFR 870.106(b), respectively, to clarify that the designation of FEHB Program and FEGLI services as emergency services shall apply to any lapse in appropriations beginning on or after December 20, 2019. Opportunities To Enroll and Change Enrollment in the FEHB Program for Furloughed Employees and Employees Excepted From Furlough and Working Without Pay During a Lapse in Appropriations Generally, an employee needs to be in pay status in order to enroll or change enrollment in the FEHB Program. See 5 CFR 890.301(b), which indicates that an FEHB ‘‘enrollment or change of enrollment takes effect on the first day PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 of the first pay period that begins after the date the employing office receives an appropriate request to enroll or change the enrollment and that follows a pay period during any part of which the employee is in pay status.’’ (emphasis added). Likewise, under 5 CFR 890.301(f)(4), ‘‘an open season new enrollment takes effect on the first day of the first pay period that begins in the next following year and which follows a pay period during any part of which the employee is in a pay status.’’ Currently, when an employee is furloughed or excepted from furlough and working without pay as a result of a lapse in appropriations, he or she is not receiving pay during the lapse. Therefore, this regulatory requirement prevents enrollment changes made by employees affected by a furlough from becoming effective. Therefore, under current regulations, such employees cannot enroll or change enrollment in the FEHB Program. Under section 1110(c)(2) of the FY20 NDAA, such employees would be deemed to be in pay status, during the lapse, for purposes of enrolling or changing enrollment in the FEHB Program. Section 1110(c)(2) refers to furloughed employees but not to employees excepted from furlough and working without pay. However, OPM interprets the statute’s purpose to be that of protecting the benefits of employees affected by a lapse in appropriations. Further, all other clauses in sections 1110 and 1111—the two provisions in the FY20 NDAA addressing Federal benefit programs to include FEHB, FEGLI, FEDVIP and FLTCIP— encompass both furloughed employees and employees excepted from furlough and working without pay. Given these facts, and pursuant to OPM’s general authority to interpret the provisions of the FEHB Act, 5 U.S.C. 8901 et seq., and to fill in statutory gaps left by Congress, as well as OPM’s broad authority under 5 U.S.C. 8913(b) to prescribe the conditions under which employees are eligible to enroll in the FEHB Program, OPM is also including similarly situated employees who are excepted from furlough and working without pay as being deemed to be in a pay status for the purpose of enrolling or changing enrollment in the FEHB Program. This will ensure that all employees that would otherwise be affected by a lapse in appropriations will be treated the same. This proposed rule would add a new paragraph (o) to 5 CFR 890.301 and revise that section’s heading. Under new paragraph (o), employees furloughed or excepted from furlough and working without pay as a result of a lapse in E:\FR\FM\20JYP1.SGM 20JYP1 Federal Register / Vol. 85, No. 139 / Monday, July 20, 2020 / Proposed Rules appropriations are deemed to be in pay status, during such lapse, for purposes of enrolling or changing enrollment in the FEHB Program. The number of employees that would likely enroll or change enrollment during a lapse in appropriations would depend on the length of the lapse, the timing of the lapse, and number of employees impacted by the lapse. Based on recent data, OPM estimates that during a year, there are approximately 460,000 new enrollment or enrollment change transactions that occur through the electronic FEHB Data Hub. About 57% of these transactions occur during Open Season, and about 43% of these transactions occur outside Open Season. OPM estimates these numbers represent 75% of total transactions with the remaining transactions being paper transactions that occur outside of the FEHB Data Hub. The amendments relating to enrollment and changing enrollment in the FEHB Program apply to any lapse of appropriations beginning on or after December 20, 2019, the date the FY20 NDAA was enacted. Continuation of FLTCIP and FEDVIP During a Lapse in Appropriations Section 1111 of the FY20 NDAA amended 5 U.S.C. 9003, and authorized the continuation of coverage under FLTCIP for an enrollee who is an employee or member of the uniformed services who, due to a lapse in appropriations, is furloughed or excepted from furlough and working without pay during such lapse, and provides that these FLTCIP enrollees may not have coverage cancelled as a result of nonpayment of premiums or other periodic charges during a lapse. Under the FY20 NDAA, FLTCIP premiums will be paid to the Carrier from enrollees’ back pay made available as soon as practicable upon the end of such a lapse. If the enrollee has elected to pay premiums by a method other than payroll deduction, the enrollee may continue to pay premiums pursuant to such election. Currently, if an employee with FLTCIP is furloughed, payroll deductions stop for any employee that does not receive pay during a shutdown furlough. However, during a shutdown furlough an impacted employee’s coverage does not terminate due to nonpayment of premiums. The employee will accrue a debt for FLTCIP premiums. Once the shutdown ends, the Program Administrator will collect the past due amount of missed FLTCIP premiums from the employee’s upcoming pay, which may include making adjustments to the deduction amount. It will work with the enrollee VerDate Sep<11>2014 18:03 Jul 17, 2020 Jkt 250001 to collect the back premiums limiting the amount per pay check to prevent undue hardship. The Program Administrator does not attempt to terminate an enrollment or collect missed premium until after the furlough is resolved. Under the proposed rule, continuation of FLTCIP coverage is authorized for an enrollee who is an employee or member of the uniformed services who, due to a lapse in appropriations, is furloughed or excepted from furlough and working without pay during such lapse. The proposed rule also clarifies that upon the end of a lapse in appropriations, FLTCIP premiums will be paid from back pay or may be paid back from another source for FLTCIP enrollees who elected to make payments directly to the Carrier. During a furlough, an employee can stop or continue direct pay or debit billing during a furlough. These enrollees will receive letters from the Program Administrator about any back premiums to pay. This proposed rule does not affect the amount of premiums collected, but it may change when the premiums are received by the Carrier. It also provides that FLTCIP enrollees may not have coverage cancelled as a result of nonpayment of premiums or other periodic charges during a lapse. In 5 CFR 875.302 OPM is adding a new paragraph (c) to add an exception to allow FLTCIP coverage to continue if any enrollee is furloughed, or excepted from furlough and working without pay during a lapse in appropriations, and that coverage may not be cancelled as a result of nonpayment of premiums or other periodic charges due during such lapse. This proposed rule also adds in new paragraph 5 CFR 875.302(c)(1) to provide that an enrollee who elected to pay FLTCIP premiums directly to the Carrier, may continue to pay premiums pursuant to such election. Otherwise; if the premiums had been withheld from pay and Congress appropriates back pay as authorized by 31 U.S.C. 1341(c)(2), premiums will be paid to the Carrier from the enrollee’s back pay made available as soon as practicable upon the end of such a lapse. If Congress does not appropriate back pay for the lapse period, if the enrollee usually pays premiums through payroll deduction, and the lapse period is less than three consecutive pay periods, the accumulated premiums will be withheld when the lapse ends and employees can be paid. Otherwise, the Program Administrator will begin to bill the enrollee directly for premium payments. The enrollee must pay those bills on a timely basis in order to PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 43745 continue coverage. A new paragraph 5 CFR 875.302(c)(2), explains that upon the end of a lapse in appropriations, premiums will be required from all impacted enrollees, and if premiums are not paid as soon as practicable upon the end of the lapse when due, coverage will terminate pursuant to current regulations at 5 CFR 875.412(c). Section 1111 of Public Law 116–92 also amends 5 U.S.C. 8956 (dental benefits) and 8986 (vision benefits), to authorize the continuation of coverage under a vision and/or dental benefits plan for any employee or a covered TRICARE-eligible individual enrolled in such a plan who, as a result of a lapse in appropriations, is furloughed or excepted from furlough and working without pay. FEDVIP coverage for these enrollees may not be cancelled as a result of nonpayment of premiums or other periodic charges due to a lapse in appropriations, and, assuming Congress appropriates back pay as authorized by 31 U.S.C. 1341(c)(2), FEDVIP premiums will be paid to the Carrier from the enrollee’s back pay made available as soon as practicable upon the end of such a lapse. If Congress does not appropriate back pay for the lapse period, the Program Administrator will begin billing seventy (70) calendar days after the first missed payment. The first direct bill will be mailed on the next available direct bill cycle date following the 70-day period. The Program Administrator may not terminate an enrollment during a lapse in appropriation (furloughed employees, during a lapse in appropriations, are not considered to be on a leave without pay). When employees return to work and receive pay, the Program Administrator will collect 2 missed premium payments each month until the previously unpaid premiums are caught up. This will also pertain to retirees impacted by a lapse in appropriation. Currently, if a FEDVIP enrollee has been furloughed, FEDVIP coverage will continue. Payroll deductions will cease for any employee that does not receive pay and missed premium payments will be withheld from pay upon return to pay status. The Program Administrator, will begin to directly bill enrollees for premiums 70 calendar days after the first missed payment, but may not terminate an enrollment due to a lapse in appropriations. The proposed rule authorizes continuation of coverage under a vision and/or dental benefits plan for any employee or a covered TRICARE-eligible individual enrolled in such a plan who, as a result of a lapse in appropriations, is furloughed or excepted from furlough and working E:\FR\FM\20JYP1.SGM 20JYP1 43746 Federal Register / Vol. 85, No. 139 / Monday, July 20, 2020 / Proposed Rules 5 CFR Part 875 Administrative practice and procedure, Employee benefit plans, Government contracts, Government employees, Health insurance, Military personnel, Organization and functions, Retirement. without pay. FEDVIP coverage for these enrollees may not be cancelled as a result of nonpayment of premiums or other periodic charges due to a lapse in appropriations, and FEDVIP premiums will be paid to the Carrier from the enrollee’s back pay made available as soon as practicable upon the end of such a lapse. The proposed rule does not affect the amount of premiums collected, but it may change when the premiums are received by the insurance carrier. In 5 CFR 894.405, OPM adds a new paragraph (c), which adds an exception to allow FEDVIP coverage to continue for any enrollee who is furloughed or is excepted from furlough and working without pay during a lapse in appropriations. In addition, in 5 CFR 894.406, OPM adds a new paragraph (c), which adds an exception to allow FEDVIP coverage to continue for any enrollee who is a TRICARE-eligible individual who is furloughed or is excepted from furlough and working without pay during a lapse. Currently, under 5 CFR 894.405 and 894.406, if a FEDVIP enrollee goes into nonpay status or the enrollee’s pay or annuity, including uniformed services retirement pay, is insufficient to cover the allotments, the enrollee may contact the Program Administrator and make payments directly, or coverage will stop if the enrollee does not make premium payments, and the enrollee has to wait until open season to enroll. In 5 CFR 894.601, OPM amends paragraph (b) to add an exception to allow FEDVIP coverage to continue for any enrollee who is furloughed or excepted from furlough and working without pay during a lapse in appropriations. Currently, under 5 CFR 894.601(b), FEDVIP coverage stops if an enrollee goes into a period of nonpay or insufficient pay, including insufficient uniformed services pay or uniformed services retirement pay, if the enrollee does not make premium payments. Under Section 1111(c) of Public Law 116–92, the amendments relating to the continuation of FEDVIP and FLTCIP under chapter 89A, 89B, or 90 (respectively) of Title 5, United States Code, apply to any contract for those benefits entered into before, on, or after December 20, 2019, the date of enactment of Public Law 116–92. In addition to the above regulatory changes, OPM is updating the authority citation for parts 870, 875, 890 and 894. dental, vision, or long term care insurance markets as FEGLI, FEDVIP, and FLTCIP constitute a small percentage of participating Carriers’ overall business line in their respective non-Federal life, dental, vision, or long term care insurance portfolios. OPM also does not believe this regulation will have a large impact on the broader health insurance market even if FEHB constitutes a large percentage of a Carrier’s overall business line because administrative actions such as processing enrollments and enrollment changes are routine practices. Expected Impact of Proposed Changes OPM seeks general comments on the impact of this regulation. OPM does not believe this regulation will have a large impact on the broader life insurance, 5 CFR Part 870 § 870.106 Designation of FEGLI services as emergency services under the Antideficiency Act. Administrative practice and procedure, Government employees, Hostages, Iraq, Kuwait, Lebanon, Life insurance, Retirement. (a) Any services by an officer or employee relating to benefits under this part, shall be deemed, for purposes of section 1342 of Title 31, United States VerDate Sep<11>2014 18:03 Jul 17, 2020 Jkt 250001 Regulatory Impact Analysis OPM has examined the impact of this rulemaking 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). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any one year. While this rulemaking does not reach the economic effect of $100 million or more under Executive Order 12866, this rulemaking is still designated as a ‘‘significant regulatory action,’’ under Executive Order 12866 and has been reviewed by OMB. Reducing Regulation and Controlling Regulatory Costs This proposed rule, if finalized as proposed, is expected to impose no more than de minimis costs and thus be neither an E.O. 13771 regulatory action nor an E.O. 13771 deregulatory action. Regulatory Flexibility Act I certify that this regulation will not have a significant economic impact on a substantial number of small entities. Federalism We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments. List of Subjects PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 5 CFR Part 890 Administrative practice and procedure, Government employees, Health facilities, Health insurance, Health professions, Hostages, Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping requirements, Retirement. 5 CFR Part 894 Administrative practice and procedure, Government employees, Health facilities, Health insurance, Health professions, Hostages, Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping requirements, Retirement. Office of Personnel Management. Alexys Stanley, Regulatory Affairs Analyst. Accordingly, OPM proposes to amend title 5, Code of Federal Regulations parts 870, 875, 890, 894 as follows: PART 870—FEDERAL EMPLOYEES’ GROUP LIFE INSURANCE PROGRAM 1. The authority citation for Part 870 is revised to read as follows: ■ Authority: 5 U.S.C. 8716; Subpart J also issued under section 599C of Pub. L. 101– 513, 104 Stat. 2064, as amended; Sec. 870.302(a)(3)(ii) also issued under section 153 of Pub. L. 104–134, 110 Stat. 1321; Sec. 870.302(a)(3) also issued under sections 11202(f), 11232(e), and 11246(b) and (c) of Pub. L. 105–33, 111 Stat. 251, and section 7(e) of Pub. L. 105–274, 112 Stat. 2419; Sec. 870.302(a)(3) also issued under section 145 of Pub. L. 106–522, 114 Stat. 2472; Secs. 870.302(b)(8), 870.601(a), and 870.602(b) also issued under Pub. L. 110–279, 122 Stat. 2604; Subpart E also issued under 5 U.S.C. 8702(c); Sec. 870.601(d)(3) also issued under 5 U.S.C. 8706(d); Sec. 870.703(e)(1) also issued under section 502 of Pub. L. 110–177, 121 Stat. 2542; Sec. 870.705 also issued under 5 U.S.C. 8714b(c) and 8714c(c); Pub. L. 104–106, 110 Stat. 521; Pub. L. 116–92. Subpart A—Administration and General Provisions 2. Amend subpart A by adding section 870.106 to read as follows: ■ E:\FR\FM\20JYP1.SGM 20JYP1 Federal Register / Vol. 85, No. 139 / Monday, July 20, 2020 / Proposed Rules Code, as services for emergencies involving the safety of human life or the protection of property. (b) The designation of services as emergency services shall apply to any lapse in appropriations beginning on or after December 20, 2019, the date of enactment of Section 1110(d) of Public Law 116–92. PART 875—FEDERAL LONG TERM CARE INSURANCE PROGRAM 3. The authority citation for part 875 is revised to reads as follows: ■ Authority: 5 U.S.C. 9008, Pub. L. 116–92. Subpart C—Cost 4. Amend § 875.302 by adding paragraph (c) to read as follows: ■ § 875.302 What are the options for making premium payments? * * * * * (c) Notwithstanding paragraph (b) of this section, if you are an enrollee who is furloughed or excepted from furlough and working without pay during a lapse in appropriations, your FLTCIP coverage will stay in effect through such a lapse. Your coverage may not be cancelled as a result of nonpayment of premiums or other periodic charges due during such lapse. Pursuant to the National Defense Authorization Act for Fiscal Year 2020, Public Law 116–92, such continuation of coverage during a lapse in appropriations applies to any contract for long term care insurance coverage under 5 U.S.C. chapter 90 entered into before, on, or after December 20, 2019. (1) If your premium payments are made by Federal payroll or annuity deduction, or uniformed services retirement pay deduction, premiums will be paid to the Carrier from back pay made available as soon as practicable upon the end of such a lapse. If your premium payments are made by preauthorized debit or by direct billing, you have the option of continuing to pay premiums while you are furloughed or excepted from furlough and working without pay, or not making premium payments. If you opt not to make premium payments during this period, you will be contacted by the Carrier regarding premiums due and must pay premiums to the Carrier as soon as practicable upon the end of the lapse. (2) Upon the end of a lapse in appropriations, premiums will be required from all impacted enrollees in accordance with enrollees’ method of payment, as described in paragraph (c)(1) of this section. If you do not pay the required premiums as soon as practicable upon the end of the lapse VerDate Sep<11>2014 18:03 Jul 17, 2020 Jkt 250001 when due, your coverage will terminate pursuant to 5 CFR 875.412. PART 890—FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM 5. The authority citation for part 890 is revised to read as follows: ■ Authority: 5 U.S.C. 8913; Sec. 890.102 also issued under sections 11202(f), 11232(e), and 11246(b) of Pub. L. 105–33, 111 Stat. 251; Sec. 890.112 also issued under section 1 of Pub. L. 110–279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.301 also issued under sec. 311 of Pub. L. 111–3, 123 Stat. 64; Sec. 890.111 also issued under section 1622(b) of Pub. L. 104–106, 110 Stat. 521; Sec. 890.803 also issued under 50 U.S.C. 3516 (formerly 50 U.S.C. 403p), 22 U.S.C. 4069c and 4069c–1; subpart L also issued under sec. 599C of Pub. L. 101–513, 104 Stat. 2064, as amended; subpart M also issued under section 721 of Pub. L. 105–261, 112 Stat. 2061; Pub. L. 111– 148, as amended by Pub. L. 111–152; Pub. L. 116–92. Subpart A—Administration and General Provisions 6. Amend subpart A by adding § 890.113 to read as follows: ■ § 890.113 Designation of FEHB Program services as emergency services under the Antideficiency Act. (a) Any services by an officer or employee under parts 890 and 892 relating to the enrollment of an individual in a health benefits plan under this chapter, or changing the enrollment of an individual already so enrolled, shall be deemed, for purposes of section 1342 of Title 31, United States Code, as services for emergencies involving the safety of human life or the protection of property. (b) The designation of services as emergency services shall apply to any lapse in appropriations beginning on or after December 20, 2019, the date of enactment of section 1110(d) of Public Law 116–92. Subpart C—Enrollment 7. Amend § 890.301 by revising the section heading and adding paragraph (o) to read as follows: ■ § 890.301 Opportunities for employees to enroll or change enrollment; effective dates. * * * * * (o) An employee, who is furloughed or excepted from furlough and working without pay as a result of a lapse in appropriations, is deemed to be in pay status, during the lapse, for purposes of this section. PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 43747 PART 894—FEDERAL EMPLOYEES DENTAL AND VISION INSURANCE PROGRAM 8. The authority citation for part 894 is revised to read as follows: ■ Authority: 5 U.S.C. 8962; 5 U.S.C. 8992; Subpart C also issued under section 1 of Pub. L. 110–279, 122 Stat. 2604; Sec. 715 of Pub. L. 114–328, 130 Stat. 2221; Pub. L. 116–92. Subpart D—Cost of Coverage 9. Amend § 894.405 by adding paragraph (c) to read as follows: ■ § 894.405 What happens if I go into nonpay status or if my pay/annuity is insufficient to cover the allotments? * * * * * (c) If you are a FEDVIP enrollee, who due to a lapse in appropriations is furloughed or excepted from furlough and working without pay due to such a lapse, your FEDVIP coverage will not stop during such a lapse. Upon the end of such a lapse, premiums will be paid to the Carrier from back pay made available as soon as practicable upon the end of such a lapse. ■ 10. Amend § 894.406 by adding paragraph (c) to read as follows: § 894.406 What happens if my uniformed services pay or uniformed services retirement pay is insufficient to cover my FEDVIP premiums, or I go into a nonpay status? * * * * * (c) If you are a FEDVIP enrollee who is furloughed or excepted from furlough and working without pay due to such a lapse, your coverage will not stop during such a lapse. Upon the end of such a lapse, premiums will be paid to the Carrier using back pay. Subpart F—Termination or Cancellation of Coverage 11. Amend § 894.601 by revising paragraph (b) to read as follows: ■ § 894.601 stop? When does my FEDVIP coverage (a) * * * (b) If you go into a period of nonpay or insufficient pay (or insufficient uniformed services pay or uniformed services retirement pay) and you do not make direct premium payments, your FEDVIP coverage stops at the end of the pay period for which your agency, retirement system, OWCP, uniformed services or uniformed services retirement system last deducted your premium payment. Exception: If you are an enrollee who is furloughed or excepted from furlough and working without pay during a lapse in appropriations, your FEDVIP coverage E:\FR\FM\20JYP1.SGM 20JYP1 43748 Federal Register / Vol. 85, No. 139 / Monday, July 20, 2020 / Proposed Rules will not stop, and your enrollment may not be cancelled as a result of nonpayment of premiums or other periodic charges due. Pursuant to the National Defense Authorization Act for Fiscal Year 2020, Public Law 116–92, such continuation of coverage during a lapse in appropriations applies to any dental or vision contract under 5 U.S.C. chapters 89A and 89B entered into before, on, or after December 20, 2019. * * * * * [FR Doc. 2020–14474 Filed 7–17–20; 8:45 am] BILLING CODE 6325–64–P DEPARTMENT OF ENERGY 10 CFR Part 431 [EERE–2019–BT–STD–0034] RIN 1904–AE56 Energy Conservation Program: Energy Conservation Standards for Commercial Prerinse Spray Valves Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Reopening of public comment period. AGENCY: The U.S. Department of Energy (‘‘DOE’’) is reopening the public comment period for its Request for Information (‘‘RFI’’) regarding energy conservation standards for commercial prerinse spray valves. DOE published the RFI in the Federal Register on June 10, 2020, establishing a 30-day public comment period that ended July 10, 2020. On June 25, 2020, DOE received a comment requesting extension of the comment period by 30 days. DOE is reopening the public comment period for submitting comments and data on the RFI for an additional 30 days. DATES: The comment period for the RFI published on June 10, 2020 (85 FR 35383), is re-opened. DOE will accept comments, data, and information regarding this RFI received no later than August 19, 2020. ADDRESSES: Interested persons are encouraged to submit comments, identified by docket number EERE– 2019–BT–STD–0034, by any of the following methods: Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. Email: CPSV2019STD0034@ ee.doe.gov. Include the docket number EERE–2019–BT–STD–0034 and/or RIN 1904–AE56 in the subject line of the message. Submit electronic comments in WordPerfect, Microsoft Word, PDF, or ASCII file format, and avoid the use SUMMARY: VerDate Sep<11>2014 18:03 Jul 17, 2020 Jkt 250001 of special characters or any form of encryption. Postal Mail: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, Mailstop EE–5B, 1000 Independence Avenue SW, Washington, DC 20585–0121. If possible, please submit all items on a compact disc (‘‘CD’’), in which case it is not necessary to include printed copies. Hand Delivery/Courier: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, 950 L’Enfant Plaza SW, Suite 600, Washington, DC 20024. Telephone: (202) 287–1445. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies. No telefacsimilies (faxes) will be accepted. Docket: For access to the docket to read background documents, or comments received, go to the Federal eRulemaking Portal at http:// www.regulations.gov/#!docketDetail; D=EERE-2019-BT-STD-0034. The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at http://www.regulations.gov. All documents in the docket are listed in the http://www.regulations.gov index. However, some documents listed in the index may not be publicly available, such as those containing information that is exempt from public disclosure. The docket web page can be found at: http://www.regulations.gov/#!docket Detail;D=EERE-2019-BT-STD-0034. The docket web page contains instructions on how to access all documents, including public comments, in the docket. FOR FURTHER INFORMATION CONTACT: Mr. Bryan Berringer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE–5B, 1000 Independence Avenue SW, Washington, DC 20585–0121. Telephone: (202) 586– 0371. Email: ApplianceStandardsQuestions@ ee.doe.gov. Ms. Kathryn McIntosh, U.S. Department of Energy, Office of the General Counsel, GC–33, 1000 Independence Avenue SW, Washington, DC 20585–0121. Telephone: (202) 586– 2002. Email: Kathryn.McIntosh@ hq.doe.gov. For further information on how to submit a comment or review other public comments and the docket contact the Appliance and Equipment PO 00000 Frm 00006 Fmt 4702 Sfmt 9990 Standards Program staff at (202) 287– 1445 or by email: ApplianceStandardsQuestions@ ee.doe.gov. SUPPLEMENTARY INFORMATION: On June 10, 2020, DOE published a RFI in the Federal Register soliciting public comment on its energy conservation standards for commercial prerinse spray valves. 85 FR 35383. Comments were originally due on July 10, 2020. On June 25, 2020, DOE received a comment from Plumbing Manufacturers International (‘‘PMI’’) requesting extension of the comment period by 30 days due to the need for more detailed feedback from its members to inform PMI’s comments.1 PMI stated that feedback has been difficult to obtain due to the current pandemic and related business impacts and priorities. DOE has reviewed the request and considered the benefit to stakeholders in providing additional time to review the RFI and gather information/data that DOE is seeking. Accordingly, DOE has determined that a re-opening of the comment period is appropriate, and will accept comments until August 19, 2020. DOE will consider any comments received from July 10, 2020 through the end of the comment period to be timely submitted. DOE feels that the additional time provided is adequate for stakeholders to respond to the RFI. Signing Authority This document of the Department of Energy was signed on July 7, 2020, by Alexander N. Fitzsimmons, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register. Signed in Washington, DC, on July 8, 2020. Treena V. Garrett, Federal Register Liaison Officer, U.S. Department of Energy. [FR Doc. 2020–15001 Filed 7–17–20; 8:45 am] BILLING CODE 6450–01–P 1 DOE has posted this comment to the docket at https://www.regulations.gov/document?D=EERE2019-BT-STD-0034-0002. E:\FR\FM\20JYP1.SGM 20JYP1

Agencies

[Federal Register Volume 85, Number 139 (Monday, July 20, 2020)]
[Proposed Rules]
[Pages 43743-43748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14474]


========================================================================
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. 85, No. 139 / Monday, July 20, 2020 / 
Proposed Rules

[[Page 43743]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 870, 875, 890, and 894

RIN 3206-AN99


Designation of Certain Services as Emergency Services Under the 
Antideficiency Act; Lapse in Appropriation--Enroll and Change 
Enrollment in FEHB Program and Continuation of Certain Insurance 
Benefits

AGENCY: Office of Personnel Management.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management (OPM) is issuing a proposed 
rule to ensure the continuation of certain benefits and services that 
could be impacted by a lapse in appropriations. First, the proposed 
rule implements Section 1110 of the National Defense Authorization Act 
for Fiscal Year 2020 (FY20 NDAA) which designates certain Federal 
Employees Health Benefits (FEHB) Program and Federal Employees' Group 
Life Insurance (FEGLI) services as emergency services under the 
Antideficiency Act. These services are deemed as services for 
emergencies involving the safety of human life or the protection of 
property. The law also provides that employees furloughed as a result 
of a lapse in appropriations shall, during such lapse, be deemed to be 
in pay status, for purposes of enrolling or changing enrollment in the 
FEHB Program. Secondly, the proposed rule implements a section of law 
which authorizes continuation of coverage under the Federal Employees 
Dental and Vision Insurance Program (FEDVIP) and the Federal Long Term 
Care Insurance Program (FLTCIP) for enrollees who are furloughed or 
excepted from furlough and working without pay due to a lapse in 
appropriations, and provides that coverage may not be cancelled as a 
result of nonpayment of premiums or other periodic charges due to such 
a lapse. The proposed rule also clarifies that upon the end of a lapse 
in appropriations, FEDVIP and FLTCIP premiums will be paid from back 
pay or may be paid back from another source for FLTCIP enrollees who 
elected to make payments directly to the Carrier.

DATES: OPM must receive comments on or before August 19, 2020.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by the following method:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    All submissions received must include the agency name and docket 
number or RIN for this document. The general policy for comments and 
other submissions from members of the public is to make these 
submissions available for public viewing at http://www.regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Julia Elam, Program Analyst, at (202) 
606-2128 or Padma Shah, Senior Policy Analyst, at (202) 606-2128.

SUPPLEMENTARY INFORMATION:

Background

The Federal Benefits Programs

Federal Employees' Group Life Insurance Program (FEGLI)

    FEGLI is administered by the United States Office of Personnel 
Management (OPM) in accordance with Chapter 87 of Title 5 of the U.S. 
Code and implementing regulations (Title 5, part 87, and Title 48, 
chapter 21 of the Code of Federal Regulations). As of September 30, 
2019, FEGLI covers an estimated 4.3 million employees and annuitants 
enrolled in Basic insurance, including 1.2 million employees and 
annuitants enrolled in Option A--Standard insurance, 1.2 million 
employees and annuitants with Option B--Additional insurance that has 
not reduced to zero, and 924,000 employees and annuitants enrolled in 
Option C--Family insurance that has not reduced to zero. Eligible 
employees are automatically enrolled in Basic insurance unless the 
employee waives this coverage, and FEGLI coverage can be continued upon 
retirement, if certain requirements are met. For most enrollees, the 
Government pays one-third of the premium cost for Basic insurance and 
the enrollee pays two-thirds of the premium cost. Those enrolled in 
Basic insurance may also elect Optional A, B, or C insurance. Enrollees 
pay the full cost for all Optional insurance.

Federal Employees Health Benefits (FEHB) Program

    The FEHB Program is administered by OPM in accordance with Title 5 
Chapter 89, United States Code and implementing regulations (Title 5, 
Parts 890, 892 and Title 48, Chapter 16). As of March 2019, there were 
approximately 8.2 million Federal employees, annuitants, certain Tribal 
employees, and their family members covered by the FEHB Program. It is 
the largest employer-sponsored health insurance program in the country. 
The Government contribution toward premium costs for most enrollees is 
set in statute as the lesser of 72 percent of the weighted average 
premium of all health plans or 75 percent of that plan option's 
premium. Using 2020 premiums with 2019 enrollments, the Government 
contribution toward 2020 premiums is $39.8 billion and the enrollee 
portion is $17.3 billion.

Federal Employees Dental and Vision Insurance Program (FEDVIP)

    FEDVIP was created as a result of the enactment of the Federal 
Employee Dental and Vision Benefits Enhancement Act of 2004, Public Law 
108-496. This Act required OPM to make stand-alone dental and vision 
insurance available to Federal employees, annuitants, and their family 
members. Certain TRICARE-eligible individuals who are authorized under 
Section 715 of the National Defense Authorization Act of Fiscal Year 
2017, Public Law 114-328, recently became eligible for FEDVIP. As of 
November 2019, FEDVIP has 4.8 million enrollees with approximately 6.6 
million covered individuals. There is no Government contribution 
towards premiums; enrollees pay the full cost of coverage. FEDVIP is 
administered by OPM in accordance with 5 U.S.C. chapters 89A and 89B 
and implementing regulations (5 CFR part 894).

[[Page 43744]]

Federal Long Term Care Insurance Program (FLTCIP)

    FLTCIP was created as a result of the enactment of the Long Term 
Care Security Act of 2000, Public Law 106-265. Eligible individuals may 
apply for insurance to help them pay for the costs of long term care. 
Most Federal employees and annuitants and their qualified relatives, 
and active and retired members of the uniformed services and their 
qualified relatives, can apply for FLTCIP coverage. As of November 
2019, FLTCIP has 268,000 enrollees. FLTCIP is administered by OPM in 
accordance with 5 U.S.C. chapter 90 and implementing regulations (5 CFR 
part 875). FLTCIP is an enrollee-pay-all program; there is no 
Government contribution toward premiums.

Discussion of the Changes

Designation of FEHB Program and FEGLI Program Services as Emergency 
Services Under the Antideficiency Act

    The Constitution provides that ``No Money shall be drawn from the 
Treasury, but in Consequence of Appropriations made by law.'' U.S. 
Const. art. I, section 9, cl. 7. The Treasury is further protected 
through the Antideficiency Act, 31 U.S.C. 1341 et seq. Among other 
things, the Antideficiency Act prohibits all officers and employees of 
the Federal Government from entering into obligations in advance of 
appropriations (31 U.S.C. 1341) and it prohibits employing Federal 
personnel in advance of appropriations except in emergencies involving 
the safety of human life or the protection of property (31 U.S.C. 
1342).\1\ Section 1110(b) of Public Law 116-92 amends 5 U.S.C. 8702 
(automatic coverage of life insurance), to provide that any services by 
an officer or employee under Chapter 87 of Title 5 relating to FEGLI 
benefits shall be deemed for purposes of 31 U.S.C. 1342, as services 
for emergencies involving the safety of human life or the protection of 
property. In addition, Section 1110(a) of Public Law 116-92 amends 5 
U.S.C. 8905 to provide that any services by an officer or employee for 
the purposes of enrolling an individual in an FEHB plan, or changing 
the enrollment of an individual, shall be deemed, for purposes of 
section 1342 of Title 31, as services for emergencies involving the 
safety of human life or the protection of property. Therefore, the 
Government may continue to employ Federal officers and employees to 
perform such emergency services related to the FEGLI and FEHB Programs.
---------------------------------------------------------------------------

    \1\ U.S. Department of Justice, Office of Legal Counsel, 
Government Operations in the Event of a Lapse in Appropriations, 
memorandum from Walter Dellinger, Assistant Attorney General, for 
Alice Rivlin, Director, Office of Management and Budget, August 16, 
1995, available at https://www.justice.gov/opinion/file/844116/download. See also 2018 Congressional Research Service (CRS), 
Shutdown of the Federal Government: Causes, Processes, and Effects, 
available at https://fas.org/sgp/crs/misc/RL34680.pdf.
---------------------------------------------------------------------------

    In this proposed rule, OPM amends the FEGLI regulations by adding a 
new section 5 CFR 870.106 in subpart A, which designates certain FEGLI 
services as emergency services under the Antideficiency Act. These 
services include, but are not limited to, any activities related to 
enrollment, changing enrollment, temporary extension of coverage and 
conversion, eligibility, certification of coverage, and matters 
relating to reemployed annuitants and survivor annuitants. OPM's 
current regulations do not address how or whether agencies must make 
changes to FEGLI for enrollees during a furlough. OPM also amends the 
FEHB Program regulations by adding a new section 5 CFR 890.113 in 
subpart A, which designates certain FEHB Program services as emergency 
services under the Antideficiency Act. These services include, but are 
not limited to, activities related to enrollment, changing enrollment, 
temporary extension of coverage and conversion, eligibility, and 
matters relating to reemployed annuitants and survivor annuitants.
    Under Section 1110(d) of Public Law 116-92, the amendments relating 
to the designation of FEHB Program and FEGLI services as emergency 
services shall apply to any lapse in appropriations beginning on or 
after December 20, 2019, the date of enactment of the FY20 NDAA. The 
FEHB Program and FEGLI regulations have been updated with new sections 
5 CFR 890.113(b) and 5 CFR 870.106(b), respectively, to clarify that 
the designation of FEHB Program and FEGLI services as emergency 
services shall apply to any lapse in appropriations beginning on or 
after December 20, 2019.

Opportunities To Enroll and Change Enrollment in the FEHB Program for 
Furloughed Employees and Employees Excepted From Furlough and Working 
Without Pay During a Lapse in Appropriations

    Generally, an employee needs to be in pay status in order to enroll 
or change enrollment in the FEHB Program. See 5 CFR 890.301(b), which 
indicates that an FEHB ``enrollment or change of enrollment takes 
effect on the first day of the first pay period that begins after the 
date the employing office receives an appropriate request to enroll or 
change the enrollment and that follows a pay period during any part of 
which the employee is in pay status.'' (emphasis added). Likewise, 
under 5 CFR 890.301(f)(4), ``an open season new enrollment takes effect 
on the first day of the first pay period that begins in the next 
following year and which follows a pay period during any part of which 
the employee is in a pay status.'' Currently, when an employee is 
furloughed or excepted from furlough and working without pay as a 
result of a lapse in appropriations, he or she is not receiving pay 
during the lapse. Therefore, this regulatory requirement prevents 
enrollment changes made by employees affected by a furlough from 
becoming effective. Therefore, under current regulations, such 
employees cannot enroll or change enrollment in the FEHB Program. Under 
section 1110(c)(2) of the FY20 NDAA, such employees would be deemed to 
be in pay status, during the lapse, for purposes of enrolling or 
changing enrollment in the FEHB Program.
    Section 1110(c)(2) refers to furloughed employees but not to 
employees excepted from furlough and working without pay. However, OPM 
interprets the statute's purpose to be that of protecting the benefits 
of employees affected by a lapse in appropriations. Further, all other 
clauses in sections 1110 and 1111--the two provisions in the FY20 NDAA 
addressing Federal benefit programs to include FEHB, FEGLI, FEDVIP and 
FLTCIP--encompass both furloughed employees and employees excepted from 
furlough and working without pay. Given these facts, and pursuant to 
OPM's general authority to interpret the provisions of the FEHB Act, 5 
U.S.C. 8901 et seq., and to fill in statutory gaps left by Congress, as 
well as OPM's broad authority under 5 U.S.C. 8913(b) to prescribe the 
conditions under which employees are eligible to enroll in the FEHB 
Program, OPM is also including similarly situated employees who are 
excepted from furlough and working without pay as being deemed to be in 
a pay status for the purpose of enrolling or changing enrollment in the 
FEHB Program. This will ensure that all employees that would otherwise 
be affected by a lapse in appropriations will be treated the same.
    This proposed rule would add a new paragraph (o) to 5 CFR 890.301 
and revise that section's heading. Under new paragraph (o), employees 
furloughed or excepted from furlough and working without pay as a 
result of a lapse in

[[Page 43745]]

appropriations are deemed to be in pay status, during such lapse, for 
purposes of enrolling or changing enrollment in the FEHB Program. The 
number of employees that would likely enroll or change enrollment 
during a lapse in appropriations would depend on the length of the 
lapse, the timing of the lapse, and number of employees impacted by the 
lapse. Based on recent data, OPM estimates that during a year, there 
are approximately 460,000 new enrollment or enrollment change 
transactions that occur through the electronic FEHB Data Hub. About 57% 
of these transactions occur during Open Season, and about 43% of these 
transactions occur outside Open Season. OPM estimates these numbers 
represent 75% of total transactions with the remaining transactions 
being paper transactions that occur outside of the FEHB Data Hub. The 
amendments relating to enrollment and changing enrollment in the FEHB 
Program apply to any lapse of appropriations beginning on or after 
December 20, 2019, the date the FY20 NDAA was enacted.

Continuation of FLTCIP and FEDVIP During a Lapse in Appropriations

    Section 1111 of the FY20 NDAA amended 5 U.S.C. 9003, and authorized 
the continuation of coverage under FLTCIP for an enrollee who is an 
employee or member of the uniformed services who, due to a lapse in 
appropriations, is furloughed or excepted from furlough and working 
without pay during such lapse, and provides that these FLTCIP enrollees 
may not have coverage cancelled as a result of nonpayment of premiums 
or other periodic charges during a lapse. Under the FY20 NDAA, FLTCIP 
premiums will be paid to the Carrier from enrollees' back pay made 
available as soon as practicable upon the end of such a lapse. If the 
enrollee has elected to pay premiums by a method other than payroll 
deduction, the enrollee may continue to pay premiums pursuant to such 
election.
    Currently, if an employee with FLTCIP is furloughed, payroll 
deductions stop for any employee that does not receive pay during a 
shutdown furlough. However, during a shutdown furlough an impacted 
employee's coverage does not terminate due to nonpayment of premiums. 
The employee will accrue a debt for FLTCIP premiums. Once the shutdown 
ends, the Program Administrator will collect the past due amount of 
missed FLTCIP premiums from the employee's upcoming pay, which may 
include making adjustments to the deduction amount. It will work with 
the enrollee to collect the back premiums limiting the amount per pay 
check to prevent undue hardship. The Program Administrator does not 
attempt to terminate an enrollment or collect missed premium until 
after the furlough is resolved.
    Under the proposed rule, continuation of FLTCIP coverage is 
authorized for an enrollee who is an employee or member of the 
uniformed services who, due to a lapse in appropriations, is furloughed 
or excepted from furlough and working without pay during such lapse. 
The proposed rule also clarifies that upon the end of a lapse in 
appropriations, FLTCIP premiums will be paid from back pay or may be 
paid back from another source for FLTCIP enrollees who elected to make 
payments directly to the Carrier. During a furlough, an employee can 
stop or continue direct pay or debit billing during a furlough. These 
enrollees will receive letters from the Program Administrator about any 
back premiums to pay. This proposed rule does not affect the amount of 
premiums collected, but it may change when the premiums are received by 
the Carrier.
    It also provides that FLTCIP enrollees may not have coverage 
cancelled as a result of nonpayment of premiums or other periodic 
charges during a lapse. In 5 CFR 875.302 OPM is adding a new paragraph 
(c) to add an exception to allow FLTCIP coverage to continue if any 
enrollee is furloughed, or excepted from furlough and working without 
pay during a lapse in appropriations, and that coverage may not be 
cancelled as a result of nonpayment of premiums or other periodic 
charges due during such lapse. This proposed rule also adds in new 
paragraph 5 CFR 875.302(c)(1) to provide that an enrollee who elected 
to pay FLTCIP premiums directly to the Carrier, may continue to pay 
premiums pursuant to such election. Otherwise; if the premiums had been 
withheld from pay and Congress appropriates back pay as authorized by 
31 U.S.C. 1341(c)(2), premiums will be paid to the Carrier from the 
enrollee's back pay made available as soon as practicable upon the end 
of such a lapse. If Congress does not appropriate back pay for the 
lapse period, if the enrollee usually pays premiums through payroll 
deduction, and the lapse period is less than three consecutive pay 
periods, the accumulated premiums will be withheld when the lapse ends 
and employees can be paid. Otherwise, the Program Administrator will 
begin to bill the enrollee directly for premium payments. The enrollee 
must pay those bills on a timely basis in order to continue coverage. A 
new paragraph 5 CFR 875.302(c)(2), explains that upon the end of a 
lapse in appropriations, premiums will be required from all impacted 
enrollees, and if premiums are not paid as soon as practicable upon the 
end of the lapse when due, coverage will terminate pursuant to current 
regulations at 5 CFR 875.412(c).
    Section 1111 of Public Law 116-92 also amends 5 U.S.C. 8956 (dental 
benefits) and 8986 (vision benefits), to authorize the continuation of 
coverage under a vision and/or dental benefits plan for any employee or 
a covered TRICARE-eligible individual enrolled in such a plan who, as a 
result of a lapse in appropriations, is furloughed or excepted from 
furlough and working without pay. FEDVIP coverage for these enrollees 
may not be cancelled as a result of nonpayment of premiums or other 
periodic charges due to a lapse in appropriations, and, assuming 
Congress appropriates back pay as authorized by 31 U.S.C. 1341(c)(2), 
FEDVIP premiums will be paid to the Carrier from the enrollee's back 
pay made available as soon as practicable upon the end of such a lapse. 
If Congress does not appropriate back pay for the lapse period, the 
Program Administrator will begin billing seventy (70) calendar days 
after the first missed payment. The first direct bill will be mailed on 
the next available direct bill cycle date following the 70-day period. 
The Program Administrator may not terminate an enrollment during a 
lapse in appropriation (furloughed employees, during a lapse in 
appropriations, are not considered to be on a leave without pay). When 
employees return to work and receive pay, the Program Administrator 
will collect 2 missed premium payments each month until the previously 
unpaid premiums are caught up. This will also pertain to retirees 
impacted by a lapse in appropriation.
    Currently, if a FEDVIP enrollee has been furloughed, FEDVIP 
coverage will continue. Payroll deductions will cease for any employee 
that does not receive pay and missed premium payments will be withheld 
from pay upon return to pay status. The Program Administrator, will 
begin to directly bill enrollees for premiums 70 calendar days after 
the first missed payment, but may not terminate an enrollment due to a 
lapse in appropriations. The proposed rule authorizes continuation of 
coverage under a vision and/or dental benefits plan for any employee or 
a covered TRICARE-eligible individual enrolled in such a plan who, as a 
result of a lapse in appropriations, is furloughed or excepted from 
furlough and working

[[Page 43746]]

without pay. FEDVIP coverage for these enrollees may not be cancelled 
as a result of nonpayment of premiums or other periodic charges due to 
a lapse in appropriations, and FEDVIP premiums will be paid to the 
Carrier from the enrollee's back pay made available as soon as 
practicable upon the end of such a lapse. The proposed rule does not 
affect the amount of premiums collected, but it may change when the 
premiums are received by the insurance carrier.
    In 5 CFR 894.405, OPM adds a new paragraph (c), which adds an 
exception to allow FEDVIP coverage to continue for any enrollee who is 
furloughed or is excepted from furlough and working without pay during 
a lapse in appropriations. In addition, in 5 CFR 894.406, OPM adds a 
new paragraph (c), which adds an exception to allow FEDVIP coverage to 
continue for any enrollee who is a TRICARE-eligible individual who is 
furloughed or is excepted from furlough and working without pay during 
a lapse. Currently, under 5 CFR 894.405 and 894.406, if a FEDVIP 
enrollee goes into nonpay status or the enrollee's pay or annuity, 
including uniformed services retirement pay, is insufficient to cover 
the allotments, the enrollee may contact the Program Administrator and 
make payments directly, or coverage will stop if the enrollee does not 
make premium payments, and the enrollee has to wait until open season 
to enroll.
    In 5 CFR 894.601, OPM amends paragraph (b) to add an exception to 
allow FEDVIP coverage to continue for any enrollee who is furloughed or 
excepted from furlough and working without pay during a lapse in 
appropriations. Currently, under 5 CFR 894.601(b), FEDVIP coverage 
stops if an enrollee goes into a period of nonpay or insufficient pay, 
including insufficient uniformed services pay or uniformed services 
retirement pay, if the enrollee does not make premium payments.
    Under Section 1111(c) of Public Law 116-92, the amendments relating 
to the continuation of FEDVIP and FLTCIP under chapter 89A, 89B, or 90 
(respectively) of Title 5, United States Code, apply to any contract 
for those benefits entered into before, on, or after December 20, 2019, 
the date of enactment of Public Law 116-92.
    In addition to the above regulatory changes, OPM is updating the 
authority citation for parts 870, 875, 890 and 894.

Expected Impact of Proposed Changes

    OPM seeks general comments on the impact of this regulation. OPM 
does not believe this regulation will have a large impact on the 
broader life insurance, dental, vision, or long term care insurance 
markets as FEGLI, FEDVIP, and FLTCIP constitute a small percentage of 
participating Carriers' overall business line in their respective non-
Federal life, dental, vision, or long term care insurance portfolios. 
OPM also does not believe this regulation will have a large impact on 
the broader health insurance market even if FEHB constitutes a large 
percentage of a Carrier's overall business line because administrative 
actions such as processing enrollments and enrollment changes are 
routine practices.

Regulatory Impact Analysis

    OPM has examined the impact of this rulemaking 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). 
A regulatory impact analysis must be prepared for major rules with 
economically significant effects of $100 million or more in any one 
year. While this rulemaking does not reach the economic effect of $100 
million or more under Executive Order 12866, this rulemaking is still 
designated as a ``significant regulatory action,'' under Executive 
Order 12866 and has been reviewed by OMB.

Reducing Regulation and Controlling Regulatory Costs

    This proposed rule, if finalized as proposed, is expected to impose 
no more than de minimis costs and thus be neither an E.O. 13771 
regulatory action nor an E.O. 13771 deregulatory action.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities.

Federalism

    We have examined this rule in accordance with Executive Order 
13132, Federalism, and have determined that this rule will not have any 
negative impact on the rights, roles and responsibilities of State, 
local, or tribal governments.

List of Subjects

5 CFR Part 870

    Administrative practice and procedure, Government employees, 
Hostages, Iraq, Kuwait, Lebanon, Life insurance, Retirement.

5 CFR Part 875

    Administrative practice and procedure, Employee benefit plans, 
Government contracts, Government employees, Health insurance, Military 
personnel, Organization and functions, Retirement.

5 CFR Part 890

    Administrative practice and procedure, Government employees, Health 
facilities, Health insurance, Health professions, Hostages, Iraq, 
Kuwait, Lebanon, Military personnel, Reporting and recordkeeping 
requirements, Retirement.

5 CFR Part 894

    Administrative practice and procedure, Government employees, Health 
facilities, Health insurance, Health professions, Hostages, Iraq, 
Kuwait, Lebanon, Military personnel, Reporting and recordkeeping 
requirements, Retirement.

Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.

    Accordingly, OPM proposes to amend title 5, Code of Federal 
Regulations parts 870, 875, 890, 894 as follows:

PART 870--FEDERAL EMPLOYEES' GROUP LIFE INSURANCE PROGRAM

0
1. The authority citation for Part 870 is revised to read as follows:

    Authority: 5 U.S.C. 8716; Subpart J also issued under section 
599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 
870.302(a)(3)(ii) also issued under section 153 of Pub. L. 104-134, 
110 Stat. 1321; Sec. 870.302(a)(3) also issued under sections 
11202(f), 11232(e), and 11246(b) and (c) of Pub. L. 105-33, 111 
Stat. 251, and section 7(e) of Pub. L. 105-274, 112 Stat. 2419; Sec. 
870.302(a)(3) also issued under section 145 of Pub. L. 106-522, 114 
Stat. 2472; Secs. 870.302(b)(8), 870.601(a), and 870.602(b) also 
issued under Pub. L. 110-279, 122 Stat. 2604; Subpart E also issued 
under 5 U.S.C. 8702(c); Sec. 870.601(d)(3) also issued under 5 
U.S.C. 8706(d); Sec. 870.703(e)(1) also issued under section 502 of 
Pub. L. 110-177, 121 Stat. 2542; Sec. 870.705 also issued under 5 
U.S.C. 8714b(c) and 8714c(c); Pub. L. 104-106, 110 Stat. 521; Pub. 
L. 116-92.

Subpart A--Administration and General Provisions

0
2. Amend subpart A by adding section 870.106 to read as follows:


Sec.  870.106   Designation of FEGLI services as emergency services 
under the Antideficiency Act.

    (a) Any services by an officer or employee relating to benefits 
under this part, shall be deemed, for purposes of section 1342 of Title 
31, United States

[[Page 43747]]

Code, as services for emergencies involving the safety of human life or 
the protection of property.
    (b) The designation of services as emergency services shall apply 
to any lapse in appropriations beginning on or after December 20, 2019, 
the date of enactment of Section 1110(d) of Public Law 116-92.

PART 875--FEDERAL LONG TERM CARE INSURANCE PROGRAM

0
3. The authority citation for part 875 is revised to reads as follows:

    Authority: 5 U.S.C. 9008, Pub. L. 116-92.

Subpart C--Cost

0
4. Amend Sec.  875.302 by adding paragraph (c) to read as follows:


Sec.  875.302  What are the options for making premium payments?

* * * * *
    (c) Notwithstanding paragraph (b) of this section, if you are an 
enrollee who is furloughed or excepted from furlough and working 
without pay during a lapse in appropriations, your FLTCIP coverage will 
stay in effect through such a lapse. Your coverage may not be cancelled 
as a result of nonpayment of premiums or other periodic charges due 
during such lapse. Pursuant to the National Defense Authorization Act 
for Fiscal Year 2020, Public Law 116-92, such continuation of coverage 
during a lapse in appropriations applies to any contract for long term 
care insurance coverage under 5 U.S.C. chapter 90 entered into before, 
on, or after December 20, 2019.
    (1) If your premium payments are made by Federal payroll or annuity 
deduction, or uniformed services retirement pay deduction, premiums 
will be paid to the Carrier from back pay made available as soon as 
practicable upon the end of such a lapse. If your premium payments are 
made by pre-authorized debit or by direct billing, you have the option 
of continuing to pay premiums while you are furloughed or excepted from 
furlough and working without pay, or not making premium payments. If 
you opt not to make premium payments during this period, you will be 
contacted by the Carrier regarding premiums due and must pay premiums 
to the Carrier as soon as practicable upon the end of the lapse.
    (2) Upon the end of a lapse in appropriations, premiums will be 
required from all impacted enrollees in accordance with enrollees' 
method of payment, as described in paragraph (c)(1) of this section. If 
you do not pay the required premiums as soon as practicable upon the 
end of the lapse when due, your coverage will terminate pursuant to 5 
CFR 875.412.

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

0
5. The authority citation for part 890 is revised to read as follows:

    Authority: 5 U.S.C. 8913; Sec. 890.102 also issued under 
sections 11202(f), 11232(e), and 11246(b) of Pub. L. 105-33, 111 
Stat. 251; Sec. 890.112 also issued under section 1 of Pub. L. 110-
279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.301 also issued under 
sec. 311 of Pub. L. 111-3, 123 Stat. 64; Sec. 890.111 also issued 
under section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 
890.803 also issued under 50 U.S.C. 3516 (formerly 50 U.S.C. 403p), 
22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C 
of Pub. L. 101-513, 104 Stat. 2064, as amended; subpart M also 
issued under section 721 of Pub. L. 105-261, 112 Stat. 2061; Pub. L. 
111-148, as amended by Pub. L. 111-152; Pub. L. 116-92.

Subpart A--Administration and General Provisions

0
6. Amend subpart A by adding Sec.  890.113 to read as follows:


Sec.  890.113   Designation of FEHB Program services as emergency 
services under the Antideficiency Act.

    (a) Any services by an officer or employee under parts 890 and 892 
relating to the enrollment of an individual in a health benefits plan 
under this chapter, or changing the enrollment of an individual already 
so enrolled, shall be deemed, for purposes of section 1342 of Title 31, 
United States Code, as services for emergencies involving the safety of 
human life or the protection of property.
    (b) The designation of services as emergency services shall apply 
to any lapse in appropriations beginning on or after December 20, 2019, 
the date of enactment of section 1110(d) of Public Law 116-92.

Subpart C--Enrollment

0
7. Amend Sec.  890.301 by revising the section heading and adding 
paragraph (o) to read as follows:


Sec.  890.301   Opportunities for employees to enroll or change 
enrollment; effective dates.

* * * * *
    (o) An employee, who is furloughed or excepted from furlough and 
working without pay as a result of a lapse in appropriations, is deemed 
to be in pay status, during the lapse, for purposes of this section.

PART 894--FEDERAL EMPLOYEES DENTAL AND VISION INSURANCE PROGRAM

0
8. The authority citation for part 894 is revised to read as follows:

    Authority: 5 U.S.C. 8962; 5 U.S.C. 8992; Subpart C also issued 
under section 1 of Pub. L. 110-279, 122 Stat. 2604; Sec. 715 of Pub. 
L. 114-328, 130 Stat. 2221; Pub. L. 116-92.

Subpart D--Cost of Coverage

0
9. Amend Sec.  894.405 by adding paragraph (c) to read as follows:


Sec.  894.405   What happens if I go into nonpay status or if my pay/
annuity is insufficient to cover the allotments?

* * * * *
    (c) If you are a FEDVIP enrollee, who due to a lapse in 
appropriations is furloughed or excepted from furlough and working 
without pay due to such a lapse, your FEDVIP coverage will not stop 
during such a lapse. Upon the end of such a lapse, premiums will be 
paid to the Carrier from back pay made available as soon as practicable 
upon the end of such a lapse.
0
10. Amend Sec.  894.406 by adding paragraph (c) to read as follows:


Sec.  894.406   What happens if my uniformed services pay or uniformed 
services retirement pay is insufficient to cover my FEDVIP premiums, or 
I go into a nonpay status?

* * * * *
    (c) If you are a FEDVIP enrollee who is furloughed or excepted from 
furlough and working without pay due to such a lapse, your coverage 
will not stop during such a lapse. Upon the end of such a lapse, 
premiums will be paid to the Carrier using back pay.

Subpart F--Termination or Cancellation of Coverage

0
11. Amend Sec.  894.601 by revising paragraph (b) to read as follows:


Sec.  894.601   When does my FEDVIP coverage stop?

    (a) * * *
    (b) If you go into a period of nonpay or insufficient pay (or 
insufficient uniformed services pay or uniformed services retirement 
pay) and you do not make direct premium payments, your FEDVIP coverage 
stops at the end of the pay period for which your agency, retirement 
system, OWCP, uniformed services or uniformed services retirement 
system last deducted your premium payment. Exception: If you are an 
enrollee who is furloughed or excepted from furlough and working 
without pay during a lapse in appropriations, your FEDVIP coverage

[[Page 43748]]

will not stop, and your enrollment may not be cancelled as a result of 
nonpayment of premiums or other periodic charges due. Pursuant to the 
National Defense Authorization Act for Fiscal Year 2020, Public Law 
116-92, such continuation of coverage during a lapse in appropriations 
applies to any dental or vision contract under 5 U.S.C. chapters 89A 
and 89B entered into before, on, or after December 20, 2019.
* * * * *
[FR Doc. 2020-14474 Filed 7-17-20; 8:45 am]
BILLING CODE 6325-64-P