[Federal Register Volume 78, Number 153 (Thursday, August 8, 2013)]
[Proposed Rules]
[Pages 48337-48339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19222]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 /
Proposed Rules
[[Page 48337]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 890
RIN 3206-AM85
Federal Employees Health Benefits Program: Members of Congress
and Congressional Staff
AGENCY: Office of Personnel Management.
ACTION: Proposed rule with request for comments.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing a
proposed rule to amend the Federal Employees Health Benefits (FEHB)
Program regulations regarding coverage for Members of Congress and
congressional staff.
DATES: OPM must receive comments on or before September 9, 2013.
ADDRESSES: Send written comments to Chelsea Ruediger, Planning and
Policy Analysis, U.S. Office of Personnel Management, Room 2H28, 1900 E
Street NW., Washington, DC 20415. You may also submit comments using
the Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Chelsea Ruediger at (202) 606-0004.
SUPPLEMENTARY INFORMATION: This proposed rule is intended to amend FEHB
Program eligibility regulations to comply with section 1312 of the
Patient Protection and Affordable Care Act, Public Law 111-148, as
amended by the Health Care and Education Reconciliation Act, Public Law
111-152 (the Affordable Care Act or the Act). Subparagraph
1312(d)(3)(D) of the Affordable Care Act states that, ``Notwithstanding
any other provision of law . . . the only health plans that the Federal
Government may make available to Members of Congress and congressional
staff with respect to their service as a Member of Congress or
congressional staff shall be health plans that are--(I) created under
this Act (or an amendment made by this Act); or (II) offered through an
Exchange established under this Act (or an amendment made by this
Act).'' The Act defines ``Member of Congress'' as any member of the
House of Representatives or the Senate and ``congressional staff'' as
all full-time and part-time employees employed by the official office
of a Member of Congress, whether in Washington, DC or outside of
Washington, DC.
Currently, Members of Congress (including Delegates to the House of
Representatives and the Resident Commissioner from Puerto Rico) and
congressional employees (which include each Member's respective
personal staffs, staffs of House and Senate leadership committees,
other committee staff and administrative office staff) meet the
definition of employee in 5 U.S.C. 8901 of title 5 and are, therefore,
eligible to enroll in the FEHB Program.
While the Affordable Care Act does not amend 5 U.S.C. 8901, the
effect of the ``notwithstanding'' clause of section 1312 is to limit
the ability of Members of Congress and congressional staff to purchase
health benefits plans for which OPM may contract under chapter 89.
Section 1312 specifies that ``the only health plans that the Federal
Government may make available'' are those that are either ``created
under'' the ACA, or ``offered through an Exchange established under''
the Act. The health benefits plans for which OPM can contract under
chapter 89 are not ``created under'' the ACA, nor are they offered
through the Exchanges. Therefore, Members of Congress and congressional
staff who are employed by the official office of a Member of Congress
may no longer purchase the health benefits plans for which OPM
contracts under chapter 89. As part of their service, they are limited
to purchasing plans from Exchanges. This proposed rule implements this
mandate.
Effective Date of Termination of Coverage
Though the Affordable Care Act does not provide a specific
effective date for Subparagraph 1312(d)(3)(D), OPM has concluded that
the most reasonable reading of the statute is that enrollment in FEHB
contracted plans under chapter 89 of title 5 will no longer be
available to Members of Congress and congressional staff who are
employed by the official office of a Member of Congress as of January
1, 2014, the date under the Act that Exchanges (also called Health
Insurance Marketplaces) established under the Affordable Care Act will
be available for providing health insurance coverage.
Accordingly, we are proposing that FEHB health plan enrollment for
Members of Congress and congressional staff employed by the official
office of a Member of Congress terminate (with a 31-day extension of
coverage and opportunity for conversion) on the first day of the last
pay period in which they are eligible for FEHB. FEHB coverage will
continue through the end of the pay period in which enrollment is
terminated. Therefore, the termination of coverage will be effective at
midnight on December 31, 2013.
Members of Congress and Congressional Staff
The proposed rule defines a ``Member of Congress'' as a member of
the Senate or of the House of Representatives, a Delegate to the House
of Representatives (which includes delegates from the District of
Columbia and the territories), and the Resident Commissioner of Puerto
Rico. Under the Affordable Care Act, territories are not required to
establish an Exchange but may elect to do so. We seek comment on the
health plans made available to Members of Congress who represent
territories that do not establish Exchanges.
The proposed rule utilizes the statutory definition for
congressional staff. Because there is no existing statutory or
regulatory definition of ``official office,'' the proposed rule
delegates to the employing office of the Member of Congress the
determination as to whether an employed individual meets the statutory
definition. OPM seeks comment on this proposal.
Based on research related to the administration of congressional
staffing, including communication with the respective House and Senate
administrative and disbursement offices, OPM has determined that
Members' offices are best equipped to make the determination as to
whether an individual is employed by the ``official office'' of that
Member. OPM's understanding is that congressional staff often have
allocated to them a percentage of work as personal staff and a
percentage of work as committee or leadership committee staff. It also
is
[[Page 48338]]
common for the percentage to change during the year. Moreover, staff
are often unaware of these percentages or budgetary source of their
compensation. OPM believes that allowing the employing office to make
the determination as to whether particular individuals are employed by
the ``official office'' is most appropriate, and will allow such
determinations to be made by the office of the Member of Congress,
which is their employer. As part of their responsibility to make this
determination, the employing offices shall be the final authority with
respect to the determination for each individual. Under these proposed
regulations, OPM will not review or overturn these determinations. OPM
seeks comment on this proposed approach.
The proposed rule provides that a designation as a congressional
staff member who is employed by the official office of a Member of
Congress will be an annual designation made prior to October of each
year for the following year based on expected work. The designation
must be made prior to October of the year before the coverage year to
allow the individual to participate in either the appropriate Exchange
open season in October or the FEHB Program open season in November for
the following year.
The proposed rule also states that the designation will be
effective for the entire FEHB Program plan year during which the staff
member works for that Member of Congress. OPM believes that it would be
unduly disruptive for an individual to move back and forth from
Exchange coverage to FEHB Program coverage mid-year. In addition, due
to the complexity of congressional staffing assignments, OPM's
understanding is that payroll changes may be made without the
congressional staff member being aware of these changes. Therefore, OPM
has proposed that individuals maintain their designations for an entire
year so long as they continue to be employed by the same Member of
Congress. OPM seeks comment on the feasibility of this method.
Clarification of Meaning of ``Health Benefit Plan Under This Chapter''
As Used in 5 U.S.C. 8905(b) and 5 U.S.C. 8906
As noted above, the ACA circumscribes the ability of the Federal
Government to offer health insurance to Members of Congress and certain
congressional staff in connection with their service to only those
plans offered on Exchanges. The ACA did not, however, alter the
definition of ``employee'' as used in 5 U.S.C. 8901(1)(B) & (C) or the
definition of ``health benefits plan'' under 5 U.S.C. 8901(6).
Although, pursuant to its authority under chapter 89 of title 5, OPM
will have no role in ``contracting for'' or ``approving'' health
benefit plans that are offered through the Exchanges, there is no doubt
that such plans fit within the definition of ``health benefit plan''
under 8901(6). This proposed regulation imposes no new requirements on
qualified health plans or Exchanges.
Prior to the passage of the ACA, there was no need for OPM to
clarify that the term ``health benefits plan under this chapter'' as
used in section 8905(b) and 8906 included plans other than those health
benefits plans for which OPM contracted or which OPM approved, pursuant
to its authority under 5 U.S.C. 8902, 8903 and 8903a. Because there are
now employees covered by chapter 89 who will be purchasing health
benefits plans on Exchanges, we believe that it is appropriate to
clarify that the provisions that authorize an employer contribution for
``health benefits plans under this chapter,'' and authorize the
continuation of such coverage into retirement, includes all health
benefits plans fitting within the definition set forth in 8901(6). The
revisions adopted here have no impact on the availability to Members of
Congress and Congressional Staff Members of the contribution
established in 5 U.S.C. 8906. Health benefit plans, as defined at 5
U.S.C. 8901(6), will encompass health benefit plans offered through an
Exchange.
The revisions adopted here also will have no impact on the ability
of Members of Congress and congressional staff who are employed by the
official office of a Member of Congress to continue being enrolled in
their existing health benefit plans when they become annuitants.
Pursuant to 5 U.S.C. 8905(b), an annuitant who at the time he/she
becomes an annuitant was enrolled in a health benefit plan under
chapter 89 (which, by definition, would include a health benefit plan
offered through an Exchange) may continue his/her enrollment in the
health benefit plan offered through the Exchange under the conditions
of eligibility prescribed by OPM in this part.
In order to establish that the contributions and withholdings will
be appropriately accounted for pursuant to section 8909 of title 5, we
have added new paragraph (h) to Sec. 890.501. The two enrollment
categories used by FEHB, self or self and family, are not generally
applicable in an Exchange. In an Exchange, a family's premium will
generally be based on the actual composition of the family (for
example, one adult, two adults, one adult and two children, etc.). A
state may also choose to establish family tiers that may differ from
the two enrollment categories used by FEHB. Therefore, subparagraph
(h)(1) reflects that OPM will apply the self and family contribution
level to any Exchange enrollment category other than one adult/
individual. Subparagraph (h)(2) clarifies the accounting issue with
respect to payments for health benefits plans under Exchanges.
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 involves the issue of where Members of Congress and certain
congressional staff may purchase their health insurance, and does not
otherwise alter the FEHB program.
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 Part 890
Administration and general provisions; Health benefits plans;
Enrollment, Temporary extension of coverage and conversion;
Contributions and withholdings; Transfers from retired FEHB Program;
Benefits in medically underserved areas; Benefits for former spouses;
Limit on inpatient hospital charges, physician charges, and FEHB
benefit payments; Administrative sanctions imposed against health care
providers; Temporary continuation of coverage; Benefits for United
States hostages in Iraq and Kuwait and United States hostages captured
in Lebanon; Department of Defense Federal Employees Health Benefits
Program demonstration project; Administrative practice and procedure,
Employee benefit plans, Government employees,
[[Page 48339]]
Reporting and recordkeeping requirements, Retirement.
Elaine Kaplan,
Acting Director. U.S. Office of Personnel Management.
Accordingly, OPM is proposing to amend title 5, Code of Federal
Regulations 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;
Public Law 111-148, as amended by Public Law 111-152.
0
2. Amend Sec. 89 0.101 adding definitions for ``congressional staff
member'' and ``Member of Congress'' to paragraph (a) to read as
follows:
Sec. 890.101 Definitions; time computations.
(a) * * *
Congressional staff member means an individual who is a full-time
or part-time employee employed by the official office of a Member of
Congress, whether in Washington, DC or outside of Washington, DC.
* * * * *
Member of Congress means a member of the Senate or of the House of
Representatives, a Delegate to the House of Representatives, and the
Resident Commissioner of Puerto Rico.
* * * * *
0
3. Amend Sec. 890.102 by adding paragraphs (c)(9) and (10) and
revising paragraph (e) to read as follows:
Sec. 890.102 Coverage.
* * * * *
(c) * * *
(9) The following employees are not eligible to purchase a health
benefit plan for which OPM contracts or which OPM approves under this
subsection, but may purchase health benefit plans, as defined in 5
U.S.C. 8901(6), that are offered by an Exchange, pursuant to Sec.
1312(d)(3)(D) of the Patient Protection and Affordable Care Act, Public
Law 111-148, as amended by the Health Care and Education Reconciliation
Act, Public Law 111-152 (the Affordable Care Act or the Act):
(i) A Member of Congress.
(ii) A congressional staff member, if the individual works for a
Member of Congress and is determined by the employing office of the
Member of Congress to meet the definition of congressional staff member
in Sec. 890.101 of this part effective January 1, 2014, or in any
subsequent calendar year. Designation as a congressional staff member
shall be an annual designation made prior to October of each year for
the following year. The designation shall be made for the duration of
the year during which the staff member works for that Member of
Congress beginning with the January 1st following the designation and
continuing to December 31st of that year.
* * * * *
(e) With the exception of those employees or groups of employees
listed in paragraph (e)(1) of this section, the Office of Personnel
Management makes the final determination of the applicability of this
section to specific employees or groups of employees.
(1) Employees identified in paragraph (c)(9)(i) and (ii) of this
section.
(2) [Reserved]
* * * * *
0
Amend Sec. 890.201 by adding paragraph (d) to read as follows:
Sec. 890.201 Minimum standards for health benefits.
* * * * *
(d) Nothing in this part shall limit or prevent a health insurance
plan purchased through an Exchange, pursuant to section 1312(d)(3)(D)
of the Patient Protection and Affordable Care Act, Public Law 111-148,
as amended by the Health Care and Education Reconciliation Act, Public
Law 111-152 (the Affordable Care Act or the Act), by an employee
otherwise covered by 5 U.S.C. 8901(1)(B) and (C) from being considered
a ``health benefit plan under this chapter'' for purposes of 5 U.S.C.
8905(b) and 5 U.S.C. 8906.
0
4. Amend Sec. 890.303 by revising paragraph (b) to read as follows:
Sec. 890.303 Continuation of enrollment.
* * * * *
(b) Change of enrolled employees to certain excluded positions.
Employees and annuitants enrolled under this part who move, without a
break in service or after a separation of 3 days or less, to an
employment in which they are excluded by Sec. 890.102(c), continue to
be enrolled unless excluded by Sec. 890.102(c)(4), (5), (6), (7), or
(9).
* * * * *
0
5. Amend Sec. 890.304 by revising paragraph (a)(1)(iii) to read as
follows.
Sec. 890.304 Termination of enrollment.
(a) * * *
(1) * * *
(iii) The last day of the pay period in which his employment status
or the eligibility of his position changes so that he is excluded from
enrollment.
* * * * *
0
6. Amend Sec. 890.501 by adding paragraph (h) to read as follows:
Sec. 890.501 Government contributions.
* * * * *
(h)(1) The Government contribution for an employee who enrolls in a
health benefit plan offered through an Exchange, pursuant to section
1312(d)(3)(D) of the Patient Protection and Affordable Care Act, Public
Law 111-148, as amended by the Health Care and Education Reconciliation
Act, Public Law 111-152 (the Affordable Care Act or the Act), or an
annuitant whose enrollment in a health benefit plan offered through
such an Exchange continues, pursuant to 5 U.S.C. 8905(b), shall be
calculated in the same manner as for other employees and annuitants.
(2) Government contributions and employee withholdings for
employees who enroll in a health benefit plan offered through an
Exchange, pursuant to section 1312(d)(3)(D) of the Patient Protection
and Affordable Care Act, Public Law 111-148, as amended by the Health
Care and Education Reconciliation Act, Public Law 111-152 (the
Affordable Care Act or the Act), or annuitants whose enrollment in a
health benefit plan offered through such an Exchange continues,
pursuant to 5 U.S.C. 8905(b), shall be accounted for pursuant to 5
U.S.C. 8909 and such monies shall only be available for payment of
premiums, and costs in accordance with 5 U.S.C. 8909(a)(2).
[FR Doc. 2013-19222 Filed 8-7-13; 8:45 am]
BILLING CODE 6325-63-P