[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Rules and Regulations]
[Pages 30267-30268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13015]

Rules and Regulations
                                                Federal Register

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Federal Register / Vol. 75, No. 104 / Tuesday, June 1, 2010 / Rules 
and Regulations

[[Page 30267]]


5 CFR Part 875

RIN 3206-AL92

Federal Long Term Care Insurance Program: Eligibility Changes

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.


SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing a 
final regulation to expand eligibility to apply for coverage under the 
Federal Long Term Care Insurance Program (FLTCIP). Under this 
regulation, the definition of ``qualified relative'' is expanded to 
cover the same-sex domestic partners of eligible Federal and U.S. 
Postal Service employees and annuitants.

DATES: Effective July 1, 2010.

FOR FURTHER INFORMATION CONTACT: John Cutler, at [email protected] or 
(202) 606-0004.

SUPPLEMENTARY INFORMATION: The President's Memorandum of June 17, 2009, 
on Federal Benefits and Non-Discrimination requested that the Office of 
Personnel Management (OPM) extend certain benefits that can be provided 
to same-sex domestic partners of Federal employees consistent with 
Federal law. On September 14, 2009, OPM published proposed regulations 
in the Federal Register (74 FR 46937-46938) to expand eligibility to 
apply for coverage under the Federal Long Term Care Insurance Program 
(FLTCIP). Comments were requested by November 13, 2009. After reviewing 
the comments received, OPM has decided to release this final regulation 
without any changes from the proposed regulation. Therefore, the 
regulation will expand the term ``qualified relative'' found in 5 
U.S.C. 9001(5)(D) to include additional individuals who are same-sex 
domestic partners of a Federal or U.S. Postal Service employee or 
annuitant. Prior to this regulation, a ``qualified relative'' included 
a spouse, parent, stepparent, parent-in-law, and adult child at least 
age 18.
    OPM received 51 comments on our proposal to extend benefit 
eligibility to same-sex domestic partners, with the comments running 
about 3 to 1 in favor of such a change. A number of comments asked that 
opposite-sex domestic partners be included. However, as stated in the 
proposed regulation, opposite-sex domestic partners were not included 
because they may obtain eligibility to apply for Federal long term care 
insurance through marriage, an option not currently available to same-
sex domestic partners.
    Some comments suggested a clarification of the documentation that 
OPM will require to verify the domestic partner status. The 
documentation will consist of an attestation that the domestic partners 
meet the criteria in Sec.  875.213(b). OPM does not expect to establish 
more rigorous criteria for the attestation as that would impose a 
greater burden on domestic partners than other qualified relatives. For 
instance, we do not require documentation such as bank statements or 
other proof of financial support for spousal coverage.
    We received some comments suggesting that we add a requirement for 
a ``common residence.'' Again, the documentation will consist of an 
attestation that the domestic partners meet the criteria in Sec.  
875.213(b). OPM does not want to establish more rigorous criteria for 
the attestation as that would impose a greater burden on domestic 
partners than other qualified relatives. We do not expect to require 
other documentation or to impose other tests or requirements in order 
to apply, enroll (if approved for coverage), or maintain coverage.
    Other commenters who addressed the documentation requirements 
requested clarity as to how the attestation would be created and where 
it would be maintained. Two comments stated a preference for the 
documentation to be kept by OPM. We believe the employing agency or 
retirement system is the appropriate place for such documentation 
because the agency/retirement system serves as the personnel office for 
its employees/annuitants. OPM does not maintain employment records for 
employees other than for its own agency employees. OPM will supply an 
attestation document on its website for the use of employees, retirees, 
and their same-sex domestic partners. OPM does not intend to publish 
the document for comment since the attestation requirements have 
already been made available through the regulation.
    There was a suggestion in some comments that OPM not require 
documentation of a same-sex domestic partnership for individuals in 
states where same-sex marriage or creation of a similar relationship, 
such as a civil union, is permitted. However, because of the variation 
from state to state, OPM has chosen a uniform set of criteria that all 
eligible employees, retirees, and their same-sex domestic partners must 
meet regardless of the state they reside in. Therefore, in order to be 
eligible to apply for Federal long term care insurance as qualified 
relatives, domestic partners must meet the standards provided in Sec.  
875.213(b), including the attestation requirement.
    Finally, there were some comments requesting that coverage be 
extended to other family members, specifically parents of the domestic 
partner. We do not intend to extend benefits to other individuals at 
this time.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because the regulation 
only adds an additional group to the list of groups eligible to apply 
for coverage under the FLTCIP. The FLTCIP is a voluntary, self-pay 
benefits program with no Government contribution.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.


    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.

[[Page 30268]]

List of Subjects in 5 CFR Part 875

    Administrative practices and procedures, Employee benefit plans, 
Government contracts, Government employees, Health insurance, Military 
personnel, Organization and functions, Retirement.

    U.S. Office of Personnel Management.
John Berry,

Accordingly, OPM amends 5 CFR part 875, as follows:


1. The authority citation for 5 CFR part 875 continues to read as 

    Authority: Authority: 5 U.S.C. 9008.

2. Add a new Sec.  875.213 to subpart B to read as follows:

Sec.  875.213  May I apply as a qualified relative if I am the domestic 
partner of an employee or annuitant?

    (a) You may apply for coverage as a qualified relative if you are a 
domestic partner, as described in paragraph (b) of this section. As 
prescribed by OPM, you will be required to provide documentation to 
demonstrate that you meet these requirements.
    (b) For purposes of this part, the term ``domestic partner'' is a 
person in a domestic partnership with an employee or annuitant of the 
same sex. The term ``domestic partnership'' is defined as a committed 
relationship between two adults, of the same sex, in which the 
    (1) Are each other's sole domestic partner and intend to remain so 
    (2) Have a common residence, and intend to continue the arrangement 
    (3) Are at least 18 years of age and mentally competent to consent 
to a contract;
    (4) Share responsibility for a significant measure of each other's 
financial obligations;
    (5) Are not married to anyone else;
    (6) Are not a domestic partner of anyone else;
    (7) Are not related in a way that, if they were of opposite sex, 
would prohibit legal marriage in the State in which they reside; and
    (8) Certify that they understand that willful falsification of the 
documentation described in paragraph (a) of this section may lead to 
disciplinary action and the recovery of the cost of benefits received 
related to such falsification and may constitute a criminal violation 
under 18 U.S.C. 1001.
[FR Doc. 2010-13015 Filed 5-28-10; 8:45 am]