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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations
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necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distribute impacts, and equity.
This rule is a significant regulatory action under E.O. 12866. As of July 2021, 7 tribally controlled schools have enrolled in the FEHB Program.
Currently, there are an estimated 4,328
newly eligible employees of 297 grant schools and 205 eligible tribal employees at 638 contract schools.
Need for Regulatory Action The FY21 CAA amended section 409
of the IHCIA, codified at 25 U.S.C.
1647b, and expanded entitlement to tribes and tribal organizations carrying out programs under the TCSA to purchase coverage, rights and benefits under the FEHB Program for their tribal employees. As the administrator of the FEHB Program, OPM has extended eligibility to tribal employees of TCSA
grant schools that have purchased FEHB
coverage within the meaning of section 409 as amended. Issuance of Federal regulations without delay is necessary to apply the existing rules that govern the relationship between OPM and tribal employers, and between the tribal employers and their tribal employees who have already elected to enroll in FEHB. Therefore, OPM has good cause to issue interim final rules that will protect the interests of all stakeholders, memorialize processes and procedures, and provide transparency.
Currently, there are an estimated 4,328 newly eligible employees of TCSA
grant schools and 205 eligible tribal employees at three 638 contract schools. Of these, 125 are tribally controlled schools where FEHB was previously not available, and 3 are other schools for which FEHB eligibility has previously been expanded.
At these affected schools, administrators will potentially take steps to update their health insurance offerings in line with expanded FEHB
eligibility. This may include familiarization with FEHB policies, planning, enrolling schools, and providing information to staff on plan options. To the extent that this results in effort above and beyond normal effort associated with administering the health insurance selection process, this will generate costs for these schools.
However, OPM lacks data to estimate the extent to which this rule will generate such costs.
This rule may affect expenses paid by tribal employers toward health insurance premiums for employees.
Under 5 CFR 890.1413b, tribal employers are required to contribute to
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the premium for tribal employees at least the same as the Federal government does for its employees and may contribute more, up to 100 percent of the premium costs. Under 5 U.S.C.
8906, the Federal government contribution is statutorily defined as the lesser of 72 percent of the weighted average of all premiums or 75 percent of the plan premium. The Senate Report 4
mentioned previously suggests that some tribal employers currently pay a substantial fraction of health insurance premiums, and that access to FEHB will appreciably reduce premiums. To the extent that this is the case, there will be a reduction in premium payments paid by tribal employers. We lack data to estimate the magnitude of these effects since they depend upon the number of enrollees who shift health insurance decisions as a result of the rule, the characteristics of the newly chosen health plans, and the portion of the premium paid by the employer.
In addition, tribal employers are responsible for the costs associated with administering the Tribal FEHB Program.
The administrative fee covers costs for the paymaster to process tribal employee FEHB enrollments and collect and remit premiums. It also covers costs associated with dedicated OPM staff who process new tribe applications;
oversee the paymaster; answer FEHB
Program questions; and issue FEHB
Program guidance through Tribal Benefits Administration Letters TBALs released and distributed to tribal employers. For fiscal year 2021, the administrative fee is $5.63 per enrollee per month.
There is an immediate need for affordable health insurance for tribally controlled schools. According to a 2019
Senate Report,5 many Bureau of Indian Education BIE grant schools face challenges covering the cost of benefits for their employees because they do not have access to lower-cost options through the FEHB Program. Another urgent concern is that American Indian/
Alaska Natives AI/AN experience health disparities, and, according to the Centers for Disease Control and Prevention CDC, AI/AN have experienced disproportionate rates of infection and mortality during the COVID19 pandemic.
Furthermore, according to the NCAI
and the National Indian Health Board, many BIE grant schools utilize a portion of their educational services funding to 4 Id.
5 See U.S. Senate. To Allow Tribal Grant Schools to Participate in the Federal Employee Health Benefits Program S. Rep. No. 11654. Available at https www.govinfo.gov/content/pkg/CRPT116srpt54/html/CRPT-116srpt54.htm.

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pay for health insurance and other benefits, which reduces financial resources for textbooks, teachers aides, and extracurricular programs.6 Access to affordable health insurance could also reduce the financial burden on tribally controlled schools such that resources can be redirected for the benefit of students. Another benefit is that TCSA grant schools are provided with equal opportunity to enroll in the FEHB Program.
Ultimately, tribal schools assess the cost of participating in the FEHB
Program and decide if it provides net benefits to their schools. For those tribally controlled schools that choose to participate it can be assumed that the benefits outweigh the costs of participation, and the Senate Report referenced above suggests that this may be the case for many affected schools.
As noted above, we lack data to estimate the magnitude of these effects, and we seek public comment on data or methods to estimate these impacts.
Effects on Tribal Employees There are an estimated 4,328 newly eligible employees at tribally controlled schools. As discussed above, this rule may result in tribal employers updating coverage options for employees to include FEHB plans. To the extent that this is the case, these employees may update their health insurance choices.
This may result in some expended effort by affected employees, although the extent to which individuals will engage in effort above and beyond the baseline effort associated with health plan selection is unclear. The Senate Report referenced above suggests that this rule may result in appreciable differences in plan offerings and selections, although we lack data to estimate the potential impact.
To the extent that individuals adjust their health insurance choices, they may experience benefits. While the exact benefits of health insurance are difficult to quantify for tribal employees of tribally controlled schools, evidence supports that extending access to FEHB
coverage for newly eligible individuals could have positive benefits. For example, Cecelia Firethunder, President of the Oglala Lakota Nation Education Coalition OLNEC, provided testimony at a legislative hearing on H.R. 895, the Tribal School Federal Insurance Parity Act, suggesting that access to FEHB
coverage may allow access to lower cost insurance options for their employees.7
6 Id.
7 See Written Testimony of Cecelia Firethunder, President of the Oglala Lakota Nation Education Coalition. House Indigenous Peoples of the United
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