[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]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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.
 
 ========================================================================
 

  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.

-----------------------------------------------------------------------

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