Federal Register - September 3, 2021
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Source: Federal Register
49461
Rules and Regulations
Federal Register Vol. 86, No. 169
Friday, September 3, 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
5 CFR Part 890
RIN 3206AO18
Access to Federal Employees Health Benefits FEHB for Employees of Certain Tribally Controlled Schools Office of Personnel Management.
ACTION: Interim final rule; request for comments.
AGENCY:
The Office of Personnel Management OPM is issuing an interim final rule to expand eligibility for enrollment in the Federal Employees Health Benefits FEHB Program to additional tribal employees. The Consolidated Appropriations Act, 2021
FY21 CAA amended section 409 of the Indian Health Care Improvement Act and expanded entitlement to Indian tribes or tribal organizations carrying out programs under the Tribally Controlled Schools Act of 1988 TCSA
to purchase coverage, rights, and benefits under the FEHB Program for their employees.
DATES:
Effective date: This rule is effective on September 3, 2021.
Comment date: OPM must receive comments on or before November 2, 2021.
SUMMARY:
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
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received without change, including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Julia Elam, Program Analyst, at julia.elam@
opm.gov or 202 6062128.
SUPPLEMENTARY INFORMATION:
FEHB Program Background The FEHB Program was established in 1960 and is the largest employersponsored health insurance program in the United States. As of March 2021, there were approximately 8.2 million covered individuals in the FEHB
Program. Covered individuals, as defined in 5 CFR 890.101, include employees of the Federal government, annuitants, members of their families, former spouses, and miscellaneous groups, enumerated in 5 U.S.C. 8901;
United States Postal Service employees and annuitants, pursuant to 39 U.S.C.
1005; tribal employees of tribal employers, pursuant to 25 U.S.C. 1647b;
and separated employees and former dependents who are eligible for Temporary Continuation of Coverage under 5 U.S.C. 8905a.
For the 2021 plan year, there are 276
plan choices across the entire FEHB
Program. The actual number of options available to any given enrollee depends on the individuals geographic location but will include a minimum of 18
nationwide plan choices, as well as local and regional plans. OPM
estimates, using the 2020 head count, that total 2021 premiums are approximately $59 billion.
Authority for This Rulemaking Section 1114 of the Consolidated Appropriations Act, 2021 Pub. L. 116
260 amended Section 409 of the Indian Health Care Improvement Act 25 U.S.C.
1647b to extend entitlement to Indian tribes or tribal organizations carrying out programs under the Tribally Controlled Schools Act of 1988 TCSA
25 U.S.C. 2501 et seq. to purchase coverage, rights and benefits under the FEHB Program for their employees.
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.
The Patient Protection and Affordable Care Act ACA Pub. L. 111148 and the Health Care and Education Reconciliation Act of 2010 Pub. L. 111
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152, as amended extended entitlement to Indian tribes and tribal organizations carrying out programs under the Indian Self-Determination and Education Assistance Act ISDEAA Pub. L. 93
638, and urban Indian organizations carrying out programs under Title V of the Indian Health Care Improvement Act IHCIA to purchase coverage, rights, and benefits under the FEHB
Program for their employees, defined in the FEHB regulations as tribal employees. As the administrator of the FEHB Program, OPM extended eligibility to tribal employees of entitled tribal employers within the meaning of section 409 of the IHCIA. Tribal employers began purchasing FEHB for their employees on March 22, 2012 with coverage effective on May 1, 2012. As of April 2021, 125 tribes participate in the FEHB Program, and there are 32,178
tribal employees for a total of 64,208
covered lives.
Tribally Controlled Schools and FEHB
Eligibility In 2010, section 409 of the IHCIA did not explicitly extend entitlement to tribes and tribal organizations operating schools pursuant to the TCSA. After the extension of FEHB to tribal employers in 2012, OPM received applications from tribal schools carrying out agreements under Public Law 100297, commonly referred to as 297 grant schools hereinafter referred to as TCSA grant schools. OPMs understanding was that Public Law 100297 contracts did not fall within the ISDEAA or Title V of the IHCIA. In April 2012, OPM sent a letter to the Interior Departments Office of the Solicitor seeking the Solicitors opinion regarding its conclusion that tribes or tribal organizations carrying out programs under Public Law 100297
were not entitled to purchase FEHB. In June 2012, the Office of the Solicitor within the Interior Department confirmed that tribal employers who receive grants pursuant to Public Law 100297 were not ipso facto eligible to purchase Federal Employee Health Benefit FEHB . . . 1
Under Public Law 116260, tribes or tribal organizations carrying out programs under the TCSA became tribal 1 Sabrina A. McCarthy, Office of the Solicitor, U.S. Department of the Interior, to John O Brien, Director, Healthcare and Insurance, Office of Personnel Management June 1, 2012.
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