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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations
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employers within the meaning of section 409 of the IHCIA and are entitled to purchase coverage, rights, and benefits under the FEHB Program for their tribal employees. Accordingly, under 25 U.S.C. 1647b, tribally controlled schools include both TCSA
grant schools and schools operating under the ISDEAA Pub. L. 93638 or a 638 contract. Tribes or tribal organizations operating schools under 638 contracts were already entitled to purchase FEHB since the extension of FEHB to tribal employers in 2012.
Currently, there are 128 tribally controlled schools with approximately 4,533 employees. Three of these tribally controlled schools operate under 638
contracts schools, and the remainder are TCSA grant schools. Tribal employees, as defined at 5 CFR 890.1402, across the 125 TCSA grant schools are now eligible for FEHB. Section 1114 of the FY21
CAA is expected to make FEHB
accessible to approximately 4,328 tribal employees of entitled TCSA grant schools.
Tribal Consultation Under Executive Order 13175, OPM
has an obligation to engage in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications. OPM
continues to be committed to effective consultation and collaboration with tribes and tribal organizations.
OPM conducted extensive consultation with tribes and tribal organizations in 2011 and 2012 before implementation of the Tribal FEHB
Program. OPM representatives attended more than 20 tribal conferences and meetings to provide information and consultation about the Program. In addition, OPM hosted training sessions for interested tribes and tribal organizations on numerous occasions.
OPM also published a series of policy papers regarding the implementation of the Tribal FEHB Program, and tribes, tribal organizations, and urban Indian organizations were given an opportunity to provide feedback on these papers. A
Tribal Technical Workgroup was established to support the implementation of the Tribal FEHB
Program. Other tribal consultative actions included collaborating with the Department of Health and Human Services HHS to conduct in-person briefings for tribal communities across the country, focusing on the implementation of the ACA.
Consultation for the Tribal FEHB
Program is detailed in the proposed rule, 81 FR 59907, and the final rule, 81
FR 95397, which are the implementing
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regulations for section 409 of the IHCIA, and set forth the conditions for coverage, rights, and benefits under the FEHB Program for certain tribal employers who are entitled to purchase FEHB coverage for their tribal employees. Public Law 116260 has tribal implications by broadening the category of eligible tribal employees of tribally controlled schools that are entitled to purchase FEHB coverage for their tribal employees.
On March 24, 2021, OPM issued a Dear Tribal Leader Letter DTLL that outlined proposed consultation topics and provided background on OPMs mission and activities. OPM also posted a public notice of the Consultation on its website and on the National Congress of American Indians NCAIs consultation site, and OPM created a new page dedicated to current and future consultation activities. On April 16, 2021, OPM held a virtual tribal consultation with tribes about federal human resources policies and programs;
ways to improve consultation and sustain strong partnerships with Tribal governments; access to Federal employee benefits, including the FEHB
Program and the newly eligible tribal employees of entitled tribally controlled schools under the FY21 CAA; and recruitment and hiring. A Dear Tribal Principals Letter was also issued on May 20, 2021 announcing a Listening Session detailing FEHB enrollment, which was held on June 8, 2021.
The public comment period for the interim final rule is an important opportunity to receive meaningful feedback about the entitlement of tribally controlled schools to purchase FEHB coverage for their tribal employees. Upon publication of the interim final rule, OPM will provide notification to Tribal Leaders, stakeholders, and other interested parties alerting them of the publication of the rule and the process for submitting formal comments. OPM has begun outreach to and will continue to assist newly entitled tribally controlled schools after the final rule is in effect.
Discussion of the Proposed Changes This rule will clarify that newly entitled TCSA grant schools are subject to FEHB regulations, as set forth in subpart N of 5 CFR 890 by including them in the definition of tribal employer, and newly eligible tribal employees are subject to applicable provisions in the regulations. There are technical corrections and clarifications such as amending the definitions of billing unit and 5 CFR 890.1402 to tribe or tribal organization carrying out programs under the TCSA and
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including the term tribally controlled school in 5 CFR 890.1402. In addition, the definition of paymaster has been revised to clarify that OPM may designate more than one entity to perform the responsibilities of the paymaster. There is also the inclusion of tribally controlled schools throughout subpart N in Part 890, the regulatory provisions on FEHB,2 as defined in 5
CFR 890.1402. The newly entitled tribally controlled schools are also included throughout section 5 CFR
890.1404, which details a tribal employers election and agreement to purchase FEHB. These technical amendments are included at 5 CFR
890.1404a1, a2, b5, b9, and e1.
Expected Impact of Proposed Changes While this rule identifies TCSA grant schools as tribal employers entitled to purchase FEHB coverage for their tribal employees, pursuant to Public Law 116
260, OPM does not believe this regulation will have a large impact on the broader health insurance markets.
Currently, there are an estimated 4,533
eligible tribal employees of tribally controlled schools, including TCSA
grant schools and 638 contract schools. Eligible tribal employees are full-time common law employees as determined by a tribal employer. There are an estimated 4,328 newly eligible tribal employees at TCSA grant schools.
The impact on carriers is relatively small, as tribal enrollments make up 0.78 percent of enrollments in the FEHB
Program. As of April 2021, the total tribal enrollment in the FEHB Program is 32,178 with a total of 64,208 covered lives. Overall, as of March 2021 there are over 4.1 million separate enrollments in the FEHB Program, providing health insurance to about 8.2
million Federal employees, annuitants, certain tribal employees, and their family members covered by the FEHB
Program.
For states with larger AI/AN
populations, OPM does not expect an outsized impact on local carriers as local carriers plans generally reflect the cost of their area. OPM does not anticipate that the newly eligible tribal employees will be significantly more expensive than other current FEHB
enrollees in the same geographic region.
For example, OPM estimates, for tribally controlled schools in which data is 2 A tribal employer includes an Indian tribe or tribal organization carrying out at least one program under the ISDEAA; an Indian tribe or tribal organization carrying out at least one program under the TCSA; and an urban Indian organization carrying out at least one program under title V of the IHCIA.

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