Designation of Certain Services as Emergency Services Under the Antideficiency Act; Opportunities To Enroll and Change Enrollment in the FEHB Program During a Lapse in Appropriations; Continuation of Certain Insurance Benefits During a Lapse in Appropriations, 17271-17274 [2021-05624]
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17271
Rules and Regulations
Federal Register
Vol. 86, No. 62
Friday, April 2, 2021
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
OFFICE OF PERSONNEL
MANAGEMENT
DATES:
Designation of Certain Services as
Emergency Services Under the
Antideficiency Act; Opportunities To
Enroll and Change Enrollment in the
FEHB Program During a Lapse in
Appropriations; Continuation of
Certain Insurance Benefits During a
Lapse in Appropriations
Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
In this final rule, the Office of
Personnel Management (OPM) is
finalizing provisions to ensure the
continuation of certain insurance
benefits and services that could be
impacted by a lapse in appropriations.
First, this final rule implements section
1110 of the National Defense
Authorization Act for Fiscal Year 2020
(FY20 NDAA), that designated certain
Federal Employees Health Benefits
(FEHB) Program and Federal
Employees’ Group Life Insurance
(FEGLI) services as emergency services
under the Antideficiency Act. Second,
this rule also implements section
1110(c)(2) of FY20 NDAA that deems
employees furloughed as a result of a
lapse in appropriations to be in pay
status, for purposes of enrolling or
changing enrollment in the FEHB
Program. Third, this final rule also
ensures, pursuant to section 1111 of the
FY20 NDAA, 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
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Julia
Elam, Program Analyst, at (202) 606–
2128 or Padma Shah, Senior Policy
Analyst, at (202) 606–2128.
FOR FURTHER INFORMATION CONTACT:
RIN 3206–AN99
SUMMARY:
This rule is effective on April 2,
2021.
5 CFR Parts 870, 875, 890, and 894
VerDate Sep<11>2014
other periodic charges due to such a
lapse. The 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 a source other than backpay for
FLTCIP enrollees who elected to make
payments directly to the Carrier. This
final rule adopts the proposed rule as
published.
On July
20, 2020, OPM published proposed
regulations (85 FR 43743) to do the
following during a furlough as a result
of lapse of appropriations: designate
FEHB and FEGLI services as emergency
service under the Antideficiency Act;
deem furloughed employees and
employees excepted from furlough and
working without pay as a result of a
lapse in appropriations to be in a pay
status for the purposes of enrolling or
changing FEHB enrollment; ensure the
continuation of FEDVIP and FLTCIP
coverage. The rule amends 5 CFR parts
870, 875, 890, and 894. OPM provided
30 days for the public to comment on
the proposed rule. The comment period
closed on August 19, 2020. OPM
received 7 public comments and one
informal comment.
FEGLI is administered by 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). 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). 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, and certain TRICARE-eligible
individuals who are authorized under
section 715 of the National Defense
Authorization Act of Fiscal Year 2017,
Public Law 114–328, became eligible for
FEDVIP. FLTCIP was created as a result
of the enactment of the Long Term Care
Security Act of 2000, Public Law 106–
265.
SUPPLEMENTARY INFORMATION:
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Response to Comments
OPM received comments from three
professional associations, one FEHB
Carrier, and one carrier organization, as
well as four comments that were outside
the scope of this rule. In addition, we
received feedback from a benefits
administrator. All the commenters were
supportive of the regulation’s goal to
continue FEDVIP and FLTCIP benefits
during a lapse in appropriations and to
designate certain FEGLI and FEHB
services as emergency services. There
was agreement that designating these as
emergency services ensures the safety of
Federal employees and provides a sense
of stability while employees are
furloughed. The commenters also
supported that the rule ensures that
furloughed employees and employees
working without pay can continue to
enroll and make enrollment changes in
the FEHB Program.
The professional organizations
commented that lapses in
appropriations cause significant
financial uncertainty and strain on
furloughed employees. The commenters
stated the proposed rule would work to
provide employees with security and
peace of mind during the economic
uncertainty surrounding a lapse in
appropriations. They also stated that the
regulation ensures furloughed
employees’ health needs are met,
making them better equipped to return
to work when appropriations are
restored. OPM agrees that the regulation
can have a positive impact on Federal
employees who may be impacted by a
lapse in appropriations.
The FEHB Carrier also stated that
maintaining health insurance benefits
are a matter of human safety. The
commenter also agreed with the rule
ensuring that furloughed employees and
employees working without pay as a
result of a lapse in appropriations, can
continue to enroll and update their
enrollments in health insurance
coverage during lapses in
appropriations. The commenter stated
that the rule will not have a negative
impact on its FEHB line of business,
since during the 2018–2019 lapse in
appropriations, it continued to process
enrollments and enrollment changes.
The commenter also supported the
continuation of vision and dental
benefits for employees during lapses in
appropriations.
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02APR1
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Federal Register / Vol. 86, No. 62 / Friday, April 2, 2021 / Rules and Regulations
The carrier organization indicated
that the proposed rule was consistent
with the FY20 NDAA, Public Law 116–
92, and had been drafted in a manner
that would improve program
administration. OPM agrees that the
regulation can improve program
administration and believes it can assist
in processing and continuing benefits
during a lapse in appropriations.
The benefits administrator provided
feedback about back pay payments for
missed FLTCIP and FEDVIP premiums
and expressed concern about double
deductions for FEDVIP premiums since,
prior to this rule, the practice was for
the Program Administrator to collect
two missed premium payments each
month until the previously unpaid
premiums are caught up when
employees returned to work and
received pay upon the end of a lapse in
appropriations. The commenter also
stated that currently not all payroll
providers can process past premiums for
FEDVIP and FLTCIP from back pay
when a lapse in appropriations ends.
The commenter suggested that the rule
allow unpaid FLTCIP premiums during
a lapse in appropriations be paid by
adjusting future deductions as was done
during the most recent extended
government shutdown. OPM declines to
revise the regulation to allow for
adjusting future deductions to make
payments for premiums. Section 1111 of
the FY20 NDAA directs that FLTCIP
premiums be paid from back pay or may
be paid back from a source other than
backpay for FLTCIP enrollees who
elected to make payments directly to the
Carrier. Therefore, we are finalizing the
regulatory text in 5 CFR 875.302(c)(1) as
originally proposed, stating that if
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. OPM encourages payroll
providers to make necessary systems
change so that back pay can be used as
payments for premiums missed during a
lapse in appropriations.
The benefits administrator also had
concerns about FEDVIP premiums being
paid to the Carrier from the enrollee’s
back pay since only one shared service
center can process back payments. It
suggested that the regulatory text also
include that premiums can be paid from
adjustments made to future deductions.
It also commented that during the last
shutdown the decision to pay back pay
was not made until the end of the
shutdown and asked how it will know
whether to direct bill enrollees.
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00:14 Apr 02, 2021
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OPM declines to adjust the regulatory
text based on these comments. Section
1111 of the FY20 NDAA directs that
FEDVIP premiums be paid from back
pay. Therefore, we are finalizing the
regulatory text in 5 CFR 894.405(c) and
5 CFR 894.406(c) as originally proposed,
stating that premiums will be paid to
the Carrier from back pay made
available as soon as practicable upon
the end of such a lapse. We would like
to clarify that enrollees who have been
furloughed or excepted from furlough
and working without pay will not be
billed for services during a lapse in
appropriations and coverage should
continue. As explained in the proposed
rule, 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. However, we would like to
provide a technical correction to the
preamble of the proposed rule. If
Congress does not appropriate back pay,
the Program Administrator may collect
missed premiums by adjusting future
deductions.
OPM is issuing this final rule with no
changes.
Expected Impact of the Final Rule
OPM expects that the regulatory
changes which designate certain FEHB
Program and FEGLI services 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
Antideficiency Act, will have a positive
effect on enrollees impacted by a lapse
in appropriations. The updated FEHB
regulations will allow Government
agencies to continue to employ Federal
officers and employees to perform
services such as enrolling an individual
in an FEHB plan or changing the
enrollment of an individual enrolled in
FEHB during a lapse in appropriations.
The amended FEGLI regulations will
assist FEGLI enrollees since it allows
agencies to employ officers or
employees to perform FEGLI services
during a lapse in appropriations. These
services include 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 anticipates that the additional
FEHB regulatory changes will assist
employees who are furloughed or
excepted from furlough who may want
to enroll, or will assist enrollees who
may experience a qualifying life event
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Sfmt 4700
and may want to make enrollment
changes. Under the rule as finalized, 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
enrolling and change enrollment in the
FEHB Program. Prior to this regulation,
such an employee might experience
challenges with enrollment or
enrollment changes since generally, an
employee needs to be in pay status in
order to enroll or change enrollment in
the FEHB Program. In addition, prior to
this rule FEHB services were not
designated as emergency services and
employees or officers performing those
services might have not been allowed to
perform those services during a lapse in
appropriations.
OPM expects these regulation changes
for the continuation of FLTCIP and
FEDVIP during a lapse in appropriations
will ensure enrollees who are
furloughed or excepted from furlough
and working without pay to continue
FLTCIP and FEDVIP coverage without
having their coverage cancelled. Once
the lapse in appropriations has ended,
FLTCIP premiums will be paid from
back pay or may be paid back from a
source other than backpay (i.e.
automatic bank withdrawal or direct
bill) for FLTCIP enrollees who elected to
make payments directly to the Carrier.
FEDVIP premiums will be paid back
from back pay once the lapse in
appropriations has ended. OPM
anticipates these changes to the
regulation will ensure Carriers receive
payments for missed premiums that
occurred during a lapse in
appropriations.
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. This
rulemaking is not a significant
regulatory action under Executive Order
12866.
Regulatory Flexibility Act
I certify that this regulation will not
have a significant economic impact on
a substantial number of small entities.
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Federal Register / Vol. 86, No. 62 / Friday, April 2, 2021 / Rules and Regulations
Federalism
5 CFR Part 894
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.
Administrative practice and
procedure, Government employees,
Health facilities, Health insurance,
Health professions, Hostages, Iraq,
Kuwait, Lebanon, Military personnel,
Reporting and recordkeeping
requirements, Retirement.
Civil Justice Reform
Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.
This regulation meets the applicable
standard set forth in Executive Order
12988.
Unfunded Mandates Reform Act of
1995
This rule will not result in the
expenditure by State, local or tribal
governments of more than $100 million
annually. Thus, no written assessment
of unfunded mandates is required.
Congressional Review Act
The Congressional Review Act (5
U.S.C. 801 et seq.) requires rules (as
defined in 5 U.S.C. 804) to be submitted
to Congress before taking effect. OPM
will submit to Congress and the
Comptroller General of the United
States a report regarding the issuance of
this action before its effective date, as
required by 5 U.S.C. 801. OMB’s Office
of Information and Regulatory Affairs
has determined that this is not a ‘‘major
rule’’ as defined by the Congressional
Review Act (5 U.S.C. 804(2)).
Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35)
This regulatory action will not impose
any additional reporting or
recordkeeping requirements under the
Paperwork Reduction Act.
List of Subjects
5 CFR Part 870
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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; Sec. 870.106 also
issued under section 1110(b) of Pub. L. 116–
92, 133 Stat. 1198 (5 U.S.C. 8702 note); 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, section 7(e) of
Pub. L. 105–274, 112 Stat. 2419, and section
145 of Pub. L. 106–522, 114 Stat. 2472; Sec.
870.302(a)(3)(ii) also issued under section
153 of Pub. L. 104–134, 110 Stat. 1321; Secs.
870.302(b)(8), 870.601(a), and 870.602(b) also
issued under Pub. L. 110–279, 122 Stat. 2604
(2 U.S.C. 2051); 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. 870.510
also issued under section 1622(b) of Pub. L.
104–106, 110 Stat. 521 (36 U.S.C. 5522); Sec.
870.703(e)(1) also issued under section 502 of
Pub. L. 110–177, 121 Stat. 2542 (5 U.S.C.
8701 note); Sec. 870.705 also issued under 5
U.S.C. 8714b(c) and 8714c(c); and Subpart J
also issued under section 599C of Pub. L.
101–513, 104 Stat. 2064 (5 U.S.C. 5561 note),
as amended.
Subpart A—Administration and
General Provisions
5 CFR Part 875
§ 870.106 Designation of FEGLI services
as emergency services under the
Antideficiency Act.
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.
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2. Add § 870.106 to read as follows:
(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
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.
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3. The authority citation for part 875
is revised to reads as follows:
■
Authority: 5 U.S.C. 9008; Pub. L. 116–92,
133 Stat. 1198 (5 U.S.C. 8956 note).
Subpart C—Cost
4. Amend § 875.302 by adding
paragraph (c) to read as follows:
Administrative practice and
procedure, Government employees,
Hostages, Iraq, Kuwait, Lebanon, Life
insurance, Retirement.
Administrative practice and
procedure, Employee benefit plans,
Government contracts, Government
employees, Health insurance, Military
personnel, Organization and functions,
Retirement.
PART 875—FEDERAL LONG TERM
CARE INSURANCE PROGRAM
■
Accordingly, OPM amends title 5,
Code of Federal Regulations parts 870,
875, 890, and 894 as follows:
■
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§ 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
when due, your coverage will terminate
pursuant to § 875.412.
PART 890—FEDERAL EMPLOYEES
HEALTH BENEFITS PROGRAM
5. The authority citation for part 890
is revised to read as follows:
■
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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. 890.111 also issued under section
1622(b) of Pub. L. 104–106, 110 Stat. 521 (36
U.S.C. 5522); Sec. 890.112 also issued under
section 1 of Pub. L. 110–279, 122 Stat. 2604
(2 U.S.C. 2051); Sec. 890.113 also issued
under section 1110 of Pub. L. 116–92, 133
Stat. 1198 (5 U.S.C. 8702 note); Sec. 890.301
also issued under section 311 of Pub. L. 111–
3, 123 Stat. 64 (26 U.S.C. 9801); Sec.
890.302(b) also issued under section 1001 of
Pub. L. 111–148, 124 Stat. 119, as amended
by Pub. L. 111–152, 124 Stat. 1029 (42 U.S.C.
300gg–14); Sec. 890.803 also issued under 50
U.S.C. 3516 (formerly 50 U.S.C. 403p) and 22
U.S.C. 4069c and 4069c–1; subpart L also
issued under section 599C of Pub. L. 101–
513, 104 Stat. 2064 (5 U.S.C. 5561 note), as
amended; and subpart M also issued under
section 721 of Pub. L. 105–261 (10 U.S.C.
1108), 112 Stat. 2061.
Subpart A—Administration and
General Provisions
■
6. Add § 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 this part and part 892
of this chapter 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.
7. Amend § 890.301 by revising the
section heading and adding a heading
for paragraph (n) and paragraph (o) to
read as follows:
Subpart D—Cost of Coverage
9. Amend § 894.405 by adding
paragraph (c) to read as follows:
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BILLING CODE 6324–64–P
DEPARTMENT OF AGRICULTURE
*
Rural Utilities Service
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*
*
(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
When does my FEDVIP coverage
*
*
*
*
*
(n) Determination of lowest-cost
nationwide plan option. * * *
(o) Pay status during a lapse in
appropriations. 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.
appropriations, your FEDVIP coverage
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.
*
*
*
*
*
§ 894.405 What happens if I go into
nonpay status or if my pay/annuity is
insufficient to cover the allotments?
§ 894.601
stop?
§ 890.301 Opportunities for employees to
enroll or change enrollment; effective dates.
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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 (2 U.S.C. 2051);
and Sec. 894.601(b) also issued under Pub. L.
116–92, 133 Stat. 1198 (5 U.S.C. 8956 note).
■
■
00:14 Apr 02, 2021
8. The authority citation for part 894
is revised to read as follows:
■
11. Amend § 894.601 by revising
paragraph (b) to read as follows:
Subpart C—Enrollment
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PART 894—FEDERAL EMPLOYEES
DENTAL AND VISION INSURANCE
PROGRAM
*
*
*
*
(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
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7 CFR Part 1752
RIN 0572–AC41
Special Servicing of
Telecommunications Programs Loans
for Financially Distressed Borrowers
Rural Utilities Service, USDA.
Final rule; confirmation and
response to comments.
AGENCY:
ACTION:
The Rural Utilities Service
(RUS), a Rural Development agency of
the United States Department of
Agriculture (USDA), is confirming the
final rule published in the Federal
Register on February 25, 2020 to outline
the general policies for servicing actions
associated with financially distressed
borrowers from the
Telecommunications Infrastructure
Loan Program, Rural Broadband
Program, Distance Learning and
Telemedicine Program, Broadband
Initiatives Program, and Rural eConnectivity Pilot Program. This
document also provides the Agency an
opportunity to acknowledge the one
public comment received on the final
rule.
DATES: Effective April 2, 2021, the final
rule published February 25, 2020 at 85
FR 10555 is confirmed.
FOR FURTHER INFORMATION CONTACT:
Laurel Leverrier, Assistant
Administrator Telecommunications
Program, Rural Utilities Service, U.S.
Department of Agriculture (USDA),
email: laurel.leverrier@usda.gov,
telephone: (202) 720–3416.
SUPPLEMENTARY INFORMATION: The Rural
Utilities Service improves the quality of
life in rural America by providing
investment capital for deployment of
rural telecommunications infrastructure.
To achieve the goal of increasing
economic opportunity in rural America,
SUMMARY:
E:\FR\FM\02APR1.SGM
02APR1
Agencies
[Federal Register Volume 86, Number 62 (Friday, April 2, 2021)]
[Rules and Regulations]
[Pages 17271-17274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05624]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 86, No. 62 / Friday, April 2, 2021 / Rules
and Regulations
[[Page 17271]]
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; Opportunities To Enroll and Change Enrollment in
the FEHB Program During a Lapse in Appropriations; Continuation of
Certain Insurance Benefits During a Lapse in Appropriations
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this final rule, the Office of Personnel Management (OPM)
is finalizing provisions to ensure the continuation of certain
insurance benefits and services that could be impacted by a lapse in
appropriations. First, this final rule implements section 1110 of the
National Defense Authorization Act for Fiscal Year 2020 (FY20 NDAA),
that designated certain Federal Employees Health Benefits (FEHB)
Program and Federal Employees' Group Life Insurance (FEGLI) services as
emergency services under the Antideficiency Act. Second, this rule also
implements section 1110(c)(2) of FY20 NDAA that deems employees
furloughed as a result of a lapse in appropriations to be in pay
status, for purposes of enrolling or changing enrollment in the FEHB
Program. Third, this final rule also ensures, pursuant to section 1111
of the FY20 NDAA, 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 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 a source other than backpay for FLTCIP
enrollees who elected to make payments directly to the Carrier. This
final rule adopts the proposed rule as published.
DATES: This rule is effective on April 2, 2021.
FOR FURTHER INFORMATION CONTACT: Julia Elam, Program Analyst, at (202)
606-2128 or Padma Shah, Senior Policy Analyst, at (202) 606-2128.
SUPPLEMENTARY INFORMATION: On July 20, 2020, OPM published proposed
regulations (85 FR 43743) to do the following during a furlough as a
result of lapse of appropriations: designate FEHB and FEGLI services as
emergency service under the Antideficiency Act; deem furloughed
employees and employees excepted from furlough and working without pay
as a result of a lapse in appropriations to be in a pay status for the
purposes of enrolling or changing FEHB enrollment; ensure the
continuation of FEDVIP and FLTCIP coverage. The rule amends 5 CFR parts
870, 875, 890, and 894. OPM provided 30 days for the public to comment
on the proposed rule. The comment period closed on August 19, 2020. OPM
received 7 public comments and one informal comment.
FEGLI is administered by 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). 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). 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, and certain TRICARE-
eligible individuals who are authorized under section 715 of the
National Defense Authorization Act of Fiscal Year 2017, Public Law 114-
328, became eligible for FEDVIP. FLTCIP was created as a result of the
enactment of the Long Term Care Security Act of 2000, Public Law 106-
265.
Response to Comments
OPM received comments from three professional associations, one
FEHB Carrier, and one carrier organization, as well as four comments
that were outside the scope of this rule. In addition, we received
feedback from a benefits administrator. All the commenters were
supportive of the regulation's goal to continue FEDVIP and FLTCIP
benefits during a lapse in appropriations and to designate certain
FEGLI and FEHB services as emergency services. There was agreement that
designating these as emergency services ensures the safety of Federal
employees and provides a sense of stability while employees are
furloughed. The commenters also supported that the rule ensures that
furloughed employees and employees working without pay can continue to
enroll and make enrollment changes in the FEHB Program.
The professional organizations commented that lapses in
appropriations cause significant financial uncertainty and strain on
furloughed employees. The commenters stated the proposed rule would
work to provide employees with security and peace of mind during the
economic uncertainty surrounding a lapse in appropriations. They also
stated that the regulation ensures furloughed employees' health needs
are met, making them better equipped to return to work when
appropriations are restored. OPM agrees that the regulation can have a
positive impact on Federal employees who may be impacted by a lapse in
appropriations.
The FEHB Carrier also stated that maintaining health insurance
benefits are a matter of human safety. The commenter also agreed with
the rule ensuring that furloughed employees and employees working
without pay as a result of a lapse in appropriations, can continue to
enroll and update their enrollments in health insurance coverage during
lapses in appropriations. The commenter stated that the rule will not
have a negative impact on its FEHB line of business, since during the
2018-2019 lapse in appropriations, it continued to process enrollments
and enrollment changes. The commenter also supported the continuation
of vision and dental benefits for employees during lapses in
appropriations.
[[Page 17272]]
The carrier organization indicated that the proposed rule was
consistent with the FY20 NDAA, Public Law 116-92, and had been drafted
in a manner that would improve program administration. OPM agrees that
the regulation can improve program administration and believes it can
assist in processing and continuing benefits during a lapse in
appropriations.
The benefits administrator provided feedback about back pay
payments for missed FLTCIP and FEDVIP premiums and expressed concern
about double deductions for FEDVIP premiums since, prior to this rule,
the practice was for the Program Administrator to collect two missed
premium payments each month until the previously unpaid premiums are
caught up when employees returned to work and received pay upon the end
of a lapse in appropriations. The commenter also stated that currently
not all payroll providers can process past premiums for FEDVIP and
FLTCIP from back pay when a lapse in appropriations ends. The commenter
suggested that the rule allow unpaid FLTCIP premiums during a lapse in
appropriations be paid by adjusting future deductions as was done
during the most recent extended government shutdown. OPM declines to
revise the regulation to allow for adjusting future deductions to make
payments for premiums. Section 1111 of the FY20 NDAA directs that
FLTCIP premiums be paid from back pay or may be paid back from a source
other than backpay for FLTCIP enrollees who elected to make payments
directly to the Carrier. Therefore, we are finalizing the regulatory
text in 5 CFR 875.302(c)(1) as originally proposed, stating that if
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. OPM encourages payroll providers to make
necessary systems change so that back pay can be used as payments for
premiums missed during a lapse in appropriations.
The benefits administrator also had concerns about FEDVIP premiums
being paid to the Carrier from the enrollee's back pay since only one
shared service center can process back payments. It suggested that the
regulatory text also include that premiums can be paid from adjustments
made to future deductions. It also commented that during the last
shutdown the decision to pay back pay was not made until the end of the
shutdown and asked how it will know whether to direct bill enrollees.
OPM declines to adjust the regulatory text based on these comments.
Section 1111 of the FY20 NDAA directs that FEDVIP premiums be paid from
back pay. Therefore, we are finalizing the regulatory text in 5 CFR
894.405(c) and 5 CFR 894.406(c) as originally proposed, stating that
premiums will be paid to the Carrier from back pay made available as
soon as practicable upon the end of such a lapse. We would like to
clarify that enrollees who have been furloughed or excepted from
furlough and working without pay will not be billed for services during
a lapse in appropriations and coverage should continue. As explained in
the proposed rule, 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. However, we would like to
provide a technical correction to the preamble of the proposed rule. If
Congress does not appropriate back pay, the Program Administrator may
collect missed premiums by adjusting future deductions.
OPM is issuing this final rule with no changes.
Expected Impact of the Final Rule
OPM expects that the regulatory changes which designate certain
FEHB Program and FEGLI services 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 Antideficiency Act,
will have a positive effect on enrollees impacted by a lapse in
appropriations. The updated FEHB regulations will allow Government
agencies to continue to employ Federal officers and employees to
perform services such as enrolling an individual in an FEHB plan or
changing the enrollment of an individual enrolled in FEHB during a
lapse in appropriations. The amended FEGLI regulations will assist
FEGLI enrollees since it allows agencies to employ officers or
employees to perform FEGLI services during a lapse in appropriations.
These services include 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 anticipates that the additional FEHB regulatory changes will
assist employees who are furloughed or excepted from furlough who may
want to enroll, or will assist enrollees who may experience a
qualifying life event and may want to make enrollment changes. Under
the rule as finalized, 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 enrolling and change enrollment in the FEHB Program. Prior
to this regulation, such an employee might experience challenges with
enrollment or enrollment changes since generally, an employee needs to
be in pay status in order to enroll or change enrollment in the FEHB
Program. In addition, prior to this rule FEHB services were not
designated as emergency services and employees or officers performing
those services might have not been allowed to perform those services
during a lapse in appropriations.
OPM expects these regulation changes for the continuation of FLTCIP
and FEDVIP during a lapse in appropriations will ensure enrollees who
are furloughed or excepted from furlough and working without pay to
continue FLTCIP and FEDVIP coverage without having their coverage
cancelled. Once the lapse in appropriations has ended, FLTCIP premiums
will be paid from back pay or may be paid back from a source other than
backpay (i.e. automatic bank withdrawal or direct bill) for FLTCIP
enrollees who elected to make payments directly to the Carrier. FEDVIP
premiums will be paid back from back pay once the lapse in
appropriations has ended. OPM anticipates these changes to the
regulation will ensure Carriers receive payments for missed premiums
that occurred during a lapse in appropriations.
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. This rulemaking is not a significant regulatory action under
Executive Order 12866.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities.
[[Page 17273]]
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.
Civil Justice Reform
This regulation meets the applicable standard set forth in
Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local or
tribal governments of more than $100 million annually. Thus, no written
assessment of unfunded mandates is required.
Congressional Review Act
The Congressional Review Act (5 U.S.C. 801 et seq.) requires rules
(as defined in 5 U.S.C. 804) to be submitted to Congress before taking
effect. OPM will submit to Congress and the Comptroller General of the
United States a report regarding the issuance of this action before its
effective date, as required by 5 U.S.C. 801. OMB's Office of
Information and Regulatory Affairs has determined that this is not a
``major rule'' as defined by the Congressional Review Act (5 U.S.C.
804(2)).
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This regulatory action will not impose any additional reporting or
recordkeeping requirements under the Paperwork Reduction Act.
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 amends title 5, Code of Federal Regulations parts
870, 875, 890, and 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; Sec. 870.106 also issued under section
1110(b) of Pub. L. 116-92, 133 Stat. 1198 (5 U.S.C. 8702 note); 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, section 7(e) of
Pub. L. 105-274, 112 Stat. 2419, and section 145 of Pub. L. 106-522,
114 Stat. 2472; Sec. 870.302(a)(3)(ii) also issued under section 153
of Pub. L. 104-134, 110 Stat. 1321; Secs. 870.302(b)(8), 870.601(a),
and 870.602(b) also issued under Pub. L. 110-279, 122 Stat. 2604 (2
U.S.C. 2051); 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. 870.510 also
issued under section 1622(b) of Pub. L. 104-106, 110 Stat. 521 (36
U.S.C. 5522); Sec. 870.703(e)(1) also issued under section 502 of
Pub. L. 110-177, 121 Stat. 2542 (5 U.S.C. 8701 note); Sec. 870.705
also issued under 5 U.S.C. 8714b(c) and 8714c(c); and Subpart J also
issued under section 599C of Pub. L. 101-513, 104 Stat. 2064 (5
U.S.C. 5561 note), as amended.
Subpart A--Administration and General Provisions
0
2. Add Sec. 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 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, 133 Stat. 1198 (5
U.S.C. 8956 note).
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
Sec. 875.412.
PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM
0
5. The authority citation for part 890 is revised to read as follows:
[[Page 17274]]
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. 890.111 also issued under section 1622(b) of Pub. L.
104-106, 110 Stat. 521 (36 U.S.C. 5522); Sec. 890.112 also issued
under section 1 of Pub. L. 110-279, 122 Stat. 2604 (2 U.S.C. 2051);
Sec. 890.113 also issued under section 1110 of Pub. L. 116-92, 133
Stat. 1198 (5 U.S.C. 8702 note); Sec. 890.301 also issued under
section 311 of Pub. L. 111-3, 123 Stat. 64 (26 U.S.C. 9801); Sec.
890.302(b) also issued under section 1001 of Pub. L. 111-148, 124
Stat. 119, as amended by Pub. L. 111-152, 124 Stat. 1029 (42 U.S.C.
300gg-14); Sec. 890.803 also issued under 50 U.S.C. 3516 (formerly
50 U.S.C. 403p) and 22 U.S.C. 4069c and 4069c-1; subpart L also
issued under section 599C of Pub. L. 101-513, 104 Stat. 2064 (5
U.S.C. 5561 note), as amended; and subpart M also issued under
section 721 of Pub. L. 105-261 (10 U.S.C. 1108), 112 Stat. 2061.
Subpart A--Administration and General Provisions
0
6. Add 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 this part and part
892 of this chapter 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 a
heading for paragraph (n) and paragraph (o) to read as follows:
Sec. 890.301 Opportunities for employees to enroll or change
enrollment; effective dates.
* * * * *
(n) Determination of lowest-cost nationwide plan option. * * *
(o) Pay status during a lapse in appropriations. 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 (2 U.S.C. 2051);
and Sec. 894.601(b) also issued under Pub. L. 116-92, 133 Stat. 1198
(5 U.S.C. 8956 note).
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?
* * * * *
(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 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. 2021-05624 Filed 4-1-21; 8:45 am]
BILLING CODE 6324-64-P