[Federal Register Volume 75, Number 236 (Thursday, December 9, 2010)]
[Rules and Regulations]
[Pages 76615-76617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30962]



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  Federal Register / Vol. 75, No. 236 / Thursday, December 9, 2010 / 
Rules and Regulations  

[[Page 76615]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 890 and 892

RIN 3206-AL95


Federal Employees Health Benefits Program Miscellaneous 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 provide for continuation of Federal Employees 
Health Benefits (FEHB) coverage for certain former Senate Restaurant 
employees who transferred to employment with a private contractor; to 
add a new opportunity for eligible employees to enroll in the FEHB, or 
to change FEHB enrollment status, under provisions of the Children's 
Health Insurance Program Reauthorization Act of 2009; and to allow 
eligible FEHB plans to offer three options, without the requirement 
that one of the options be a high deductible health plan.

DATES: Effective December 9, 2010.

FOR FURTHER INFORMATION CONTACT: Ronald Brown, Policy Analyst, at (202) 
606-0004 or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: On April 19, 2010, OPM published proposed 
regulations (75 FR 20314) with miscellaneous changes, clarifications, 
and corrections. We received several comments requesting that the 
proposed change to FEHB Open Season dates begin in 2011 rather than in 
2010. We received several comments that changing the FEHB Open Season 
dates to November 1st through November 30th each year may result in 
employee confusion and additional administrative inconvenience because 
the Open Season will end immediately after the Thanksgiving holiday 
weekend, instead of ending the second full work week in December. 
Additionally, there was one comment that the Open Season could begin or 
end on a weekend, instead of a week day as is currently the case. We 
also received a comment that enrollees eligible for Medicare would have 
less flexibility to make health plan decisions if the FEHB Open Season 
dates ended in November. Currently, Medicare enrollees have from 
November 15 to December 31 to make changes in their Medicare coverage. 
Changing the FEHB Open Season dates would adversely affect this 
important segment of the FEHB population. Therefore, we have decided 
not to amend this provision of the FEHB regulations.
    One commenter asked that we continue the High Deductible Health 
Plans (HDHPs), including Health Savings Accounts, within the FEHB. We 
do not have any plans to discontinue offering HDHPs as a choice under 
the Program.
    We received one comment from an FEHB Plan requesting permission to 
offer two benefit levels or, alternatively, three options without 
offering an HDHP. However, the Plan is allowed by Federal law to only 
offer two levels of benefits. The authority to permit the Plan to offer 
more than two levels of benefits is a matter for Congress to consider 
and enact, if it chooses to do so. While we continue to look for ways 
to ensure that the FEHB offers choice and value, we are unable to 
permit a carrier any flexibility not allowed by law. We have no 
administrative authority to permit this change by revised ruling.

Background

Senate Restaurants Employees

    Public Law 110-279, enacted July 17, 2008, provides for certain 
Federal employee benefits to be continued for certain employees of the 
Senate Restaurants after the operations of the Senate Restaurants are 
contracted to be performed by a private business concern. The law 
provides that a Senate Restaurants employee, who was an employee of the 
Architect of the Capitol on the date of enactment and who accepted 
employment by the private business concern as part of the transition, 
may elect to continue certain Federal benefits during continuous 
employment with the business concern. We are revising the FEHB 
regulations to address coverage for these individuals pursuant to 
relevant of Public Law 110-279. We are adding Sec.  890.112 to subpart 
A.

New Enrollment Opportunities

    Public Law 111-3, the Children's Health Insurance Program (CHIP) 
Reauthorization Act of 2009 (the Act), enacted on February 4, 2009, 
allows States to subsidize health insurance premium payments for 
certain low-income children who have access to qualified employer-
sponsored health insurance coverage. FEHB-eligible enrollees who meet 
the criteria for child health assistance are eligible to receive State 
premium subsidy assistance payments to help them pay for their FEHB 
plan premiums. Current FEHB Program regulations already allow an 
eligible enrollee who loses coverage under the FEHB Program or another 
group health plan, including loss of eligibility or assistance under 
Medicaid or CHIP, to enroll or change enrollment from self only to self 
and family within the period beginning 31 days before and ending 60 
days after the date of loss of coverage. The Act provides new 
opportunities for eligible employees to enroll in the FEHB Program or 
to change enrollment from self only to self and family when the 
employee or an eligible family member becomes eligible for premium 
assistance under CHIP. Employees must request the change in enrollment 
within 60 days after the date the employee or eligible family member is 
determined to be eligible for assistance. Employees may make these 
enrollment changes regardless of whether they are covered under premium 
conversion (pay premiums with pre-tax dollars). We are amending the 
regulations to reflect this enrollment opportunity. We are adding Sec.  
890.301(m).

Change in Options Offered

    The current regulations state that an FEHB plan shall not have more 
than two options and a high deductible health plan. We are revising the 
regulations to allow employee organization plans and health maintenance 
organizations to both offer two options and a high deductible health 
plan or to offer three options, without the requirement that one of the 
options be a high deductible health plan. These plans are eligible by 
statute to offer more than two options.

[[Page 76616]]

This change will provide for more flexibility in contracting with 
health plans for modern types of benefits. These changes can be found 
in 890.201(b)(3)(i) and 890.201(b)(3)(ii).

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) imposes certain 
requirements on Federal agencies in connection with their conducting or 
sponsoring any collection of information as defined by the PRA. Certain 
provisions of this final rulemaking would result in new collection of 
information requirements within the meaning of the PRA. The Office of 
Personnel Management (OPM) therefore is revising a health benefits 
election form, Standard Form 2809.
    In the future, the OPM intends to publish a 60-day Federal Register 
Notice including the revised form that ties to this final rulemaking. 
The information collected in the notice will be submitted to the Office 
of Management and Budget (OMB) for review. The OMB assigned collection 
control number for this form is: 3206-0160.

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 affects health insurance benefits of Federal employees and 
annuitants. Executive Order 12866,

Regulatory Review

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

Federalism

    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.

List of Subjects in 5 CFR Parts 890 and 892

    Administrative practice and procedure, Employee benefit plans, 
Government employees, Reporting and recordkeeping requirements, 
Retirement.

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

0
Accordingly, OPM is amending 5 CFR part 890 and part 892 as follows:

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

0
1. The authority citation for part 890 is revised to read as follows:

    Authority:  5 U.S.C. 8913; Sec. 890.301 also issued under sec. 
311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under 
section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also 
issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 
8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c 
and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-
513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under 
sections 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105-33, 
111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061.

Subpart A--Administration and General Provisions

0
2. Add Sec.  890.112 to subpart A to read as follows:


Sec.  890.112  Continuation of coverage for certain Senate Restaurants 
employees.

    (a) A Senate Restaurants employee who was an employee of the 
Architect of the Capitol on July 17, 2008, who accepted employment with 
the private business concern to which the Senate Restaurants' food 
service operations were transferred as described in section 1 of Public 
Law 110-279, and who elected to continue his or her Federal employee 
retirement benefits is deemed to be an employee for purposes of this 
part during continuous employment with the private business concern or 
its successor. The individual shall be entitled to the benefits of, and 
be subject to all conditions under, the FEHB Program on the same basis 
as if the individual were an employee of the Federal Government.
    (b) Cessation of employment with the private business concern or 
its successor for any period terminates eligibility for coverage under 
the FEHB Program as an employee during any subsequent employment by the 
private business concern.
    (c) The private business concern or its successor must make 
arrangements for the withholding from pay of an individual described by 
paragraph (a) of this section of an amount equal to the premiums 
withheld from Federal employees' pay for FEHB coverage and, in 
accordance with procedures established by OPM, pay into the Employees 
Health Benefits Fund the amounts deducted from the individual's pay.
    (d) The private business concern or its successor shall, in 
accordance with procedures established by OPM, pay into the Employees 
Health Benefits Fund amounts equal to any agency contributions required 
under the FEHB Program.

Subpart B--Health Benefits Plans

0
3. Revise Sec.  890.201(b)(3) to read as follows:


Sec.  890.201  Minimum standards for health benefits plans.

* * * * *
    (b) * * *
    (3)(i) Have more than two options and a high deductible health plan 
(26 U.S.C. 223(c)(2)(A)) if the plan is described under 5 U.S.C. 
8903(1) or (2); or
    (ii) Have either more than three options, or more than two options 
and a high deductible health plan (26 U.S.C. 223(c)(2)(A)) if the plan 
is described under 5 U.S.C. 8903(3) or (4).
* * * * *

Subpart C--Enrollment

0
4. Add a new paragraph (m) to Sec.  890.301 to read as follows:


Sec.  890.301  Opportunities for employees who are not participants in 
premium conversion to enroll or change enrollment; effective dates.

* * * * *
    (m) An employee or eligible family member becomes eligible for 
premium assistance under Medicaid or a State Children's Health 
Insurance Program (CHIP). An eligible employee may enroll and an 
enrolled employee may change his or her enrollment from self only to 
self and family, from one plan or option to another, or make any 
combination of these changes when the employee or an eligible family 
member of the employee becomes eligible for premium assistance under a 
Medicaid plan or CHIP. An employee must enroll or change his or her 
enrollment within 60 days after the date the employee or family member 
is determined to be eligible for assistance.

PART 892--FEDERAL FLEXIBLE BENEFITS PLAN: PRE-TAX PAYMENT OF HEALTH 
BENEFITS PREMIUMS

0
5. The authority citation for part 892 is revised to read as follows:

    Authority:  5 U.S.C 8913; 5 U.S.C. 1103(a)(7); 26 U.S.C. 125; 
Sec. 892.101 also issued under sec. 311 of Pub. L. 111-3, 123 Stat. 
64.

Subpart A--Administration and General Provisions

0
6. In Sec.  892.101, amend the definition of qualifying life event by 
adding a new paragraph (13) to read as follows:


Sec.  892.101  Definitions.

* * * * *

[[Page 76617]]

    Qualifying life event * * *
    (13) An employee or eligible family member becomes eligible for 
premium assistance under Medicaid or a State Children's Health 
Insurance Program (CHIP). An eligible employee may enroll and an 
enrolled employee may change his or her enrollment from self only to 
self and family, from one plan or option to another, or make any 
combination of these changes when the employee or an eligible family 
member of the employee becomes eligible for premium assistance under a 
Medicaid plan or a State Children's Health Insurance Program. An 
employee must enroll or change his or her enrollment within 60 days 
after the date the employee or family member is determined to be 
eligible for assistance.

[FR Doc. 2010-30962 Filed 12-8-10; 8:45 am]
BILLING CODE 6325-39-P