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Rules and Regulations
Federal Register Vol. 86, No. 196
Thursday, October 14, 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 849
RIN 3206AO08

Representative Payees Under the Civil Service Retirement System and Federal Employees Retirement System Office of Personnel Management.
ACTION: Final rule.
AGENCY:

The Office of Personnel Management OPM is issuing this final rule to promulgate regulations which administer the representative payee program authorized by statute. This final rule is necessary to ensure proper procedures for annuity payments due minors or individuals who are mentally incompetent or under other legal disability and are unable to manage their respective payments.
DATES: This rule is effective October 14, 2021.
FOR FURTHER INFORMATION CONTACT:
Michael Shipley, 202 6060299. Email:
Comboxinternet@opm.gov. Include the RIN in the subject line of the email.
SUPPLEMENTARY INFORMATION: On March 8, 2021, OPM issued a proposed rule at 86 FR 13217 for the purpose of promulgating regulations to administer the representative payee program under the Civil Service Retirement System CSRS and the Federal Employees Retirement System FERS. Under CSRS, the provisions of Public Law 89554, Sept. 6, 1966, 80 Stat. 582 authorized the United States Civil Service Commission, precursor to the United States Office of Personnel Management OPM, to make payments due a minor or an individual mentally incompetent, or under other legal disability, to a person who is constituted guardian or other fiduciary by the law of the State of residence of the claimant or any person, who in the judgment of the
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Commission, is responsible for the care of the claimant. Similarly, the FERS Act of 1986, Public Law 99335, Title I, section 101a, June 6, 1986, 100 Stat.
575, authorized OPM to make the same payments under FERS. According to these statutes, OPM has historically authorized these payments to individuals, and in some instances, organizations on behalf of the annuitant as representative payees.
On March 18, 2020, Congress enacted Public Law 116126, 134 Stat. 174177
2020, the Representative Payee Fraud Prevention Act of 2019 the Act, which made numerous changes to existing statutes regarding representative payees.
First the Act officially defined the term representative payee under both CSRS
and FERS as the person including an organization designated . . . to receive payment on behalf of a minor or an individual mentally incompetent or under other legal disability at 5 U.S.C.
833133 and 5 U.S.C. 840139, respectively. Ensuring that organization was added to the definition recognizes that other entities, such as agencies, institutions, nursing homes, et al., may serve as representative payees.
Congress also enacted 5 U.S.C. 8345a and 8466a to address the embezzlement or conversion of payments. Congress made it unlawful for a representative payee to use the funds received as a representative payee for any use other than the use and benefit of the individual on whose behalf the payments were received. OPM was given the authority to revoke certification as a representative payee, if we determine that a representative payee has embezzled or converted the annuity payments, and to certify payments to another representative payee or directly to the annuitant.
Congress set forth the penalty for misuse of benefits by a representative payee, under title 18 U.S.C., as a fine, imprisonment for not more than 5 years, or both.
Furthermore, in selecting a representative payee, OPM was granted authority to defer or suspend the annuity payment until a representative payee is located, if we determine that paying the annuitant directly would cause substantial harm to the annuitant.
Substantial harm exists if both of the following conditions exist:

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1 Direct payment of benefits can be expected to cause serious physical or mental injury to the individual; and 2 The potential effect of the injury outweighs the effect of having no income to meet the basic needs of the individual.
We have included this language concerning substantial harm to the proposed regulations.
Finally, the Act created limitations on who can be appointed as a representative payee. Individuals that have been convicted of a violation of: 1
5 U.S.C. 8345a or 8466a; 2 section 208
or 1632 of the Social Security Act 42
U.S.C. 408, 1383a; or 3 section 6101
of title 38, are barred from serving as a representative payee.
OPM is promulgating these regulations to fully implement and administer the representative payee program for CSRS and FERS. The regulations are required to prevent misuse and fraud by representative payees.
The public comment period on the proposed rule ended May 7, 2021. OPM
received four substantive comments.
Three of the comments voiced general support for the proposed rule in protecting vulnerable individuals from potential misuse by the representative payee. OPM received one comment from the American Association of Nurse Practitioners AANP. The AANP
suggested amending the language in 5
CFR 849.203 from medical professional to licensed health practitioner. In addition, the AANP
suggested amending 5 CFR 849.602 to include the language or other licensed health practitioners when identifying statements that are acceptable to stop representative payments. The AANP
reasoned that the term licensed health practitioner is already defined under 5
CFR 339.104, and that these changes more closely align with other regulations at 5 CFR 831.1202 and 844.102 that OPM uses to administer annuity benefits under CSRS and FERS.
OPM agrees and has adopted the AANPs recommendations by amending 5 CFR 849.203 and 849.602, to include licensed health practitioner as appropriate. OPM has also amended 5
CFR 849.102 to include the definition for physicians and practitioners.

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