[Federal Register Volume 81, Number 169 (Wednesday, August 31, 2016)]
[Proposed Rules]
[Pages 59907-59919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20566]


 ========================================================================
 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.
 
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  Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 / 
Proposed Rules  

[[Page 59907]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 890

RIN 3206-AM40


Access to Federal Employees Health Benefits (FEHB) for Employees 
of Certain Indian Tribal Employers

AGENCY: U.S. Office of Personnel Management.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing a 
Notice of Proposed Rulemaking to address the implementation of certain 
provisions of the Patient Protection and Affordable Care Act and the 
Health Care and Education Reconciliation Act of 2010, as amended (ACA) 
making Federal employee health insurance accessible to employees of 
certain Indian tribal entities. The ACA includes authorization for 
Indian tribes, tribal organizations, and urban Indian organizations 
that carry out certain programs to purchase coverage, rights, and 
benefits under the Federal Employees Health Benefits (FEHB) Program for 
their employees. Tribal employers and tribal employees will be 
responsible for the full cost of benefits, plus an administrative fee.

DATES: Comment date: Comments are due on or before October 31, 2016.

FOR FURTHER INFORMATION CONTACT: Chelsea Ruediger, Senior Policy 
Analyst (202) 606-0004.

ADDRESSES: You may submit comments, identified by RIN number ``3206-
AM40'' using any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail: Chelsea Ruediger, Senior Policy Analyst, Planning and Policy 
Analysis, U.S. Office of Personnel Management, 1900 E Street NW., 
Washington, DC 20415.

SUPPLEMENTARY INFORMATION:

Background

    The U.S. Office of Personnel Management (OPM) is issuing a notice 
of proposed rulemaking to extend certain Federal employee benefits to 
employees of certain Indian tribal employers. The Patient Protection 
and Affordable Care Act (Pub. L. 111-148) and the Health Care and 
Education Reconciliation Act of 2010 (Pub. L. 111-152), as amended 
(ACA) extended eligibility to purchase coverage, rights, and benefits 
under the Federal Employees Health Benefits (FEHB) Program to employees 
of those Indian tribes and tribal organizations carrying out programs 
under the Indian Self-Determination and Education Assistance Act 
(ISDEAA), and urban Indian organizations carrying out programs under 
title V of the Indian Health Care Improvement Act (IHCIA). This 
regulation includes program rules for tribal employers and tribal 
employees in accordance with chapter 89 of title 5, United States Code. 
The new regulatory provisions are set forth in new subpart N, part 890 
of title 5 of the Code of Federal Regulations.
    These proposed rules, which codify previously issued guidance, 
adopt the FEHB program for Federal employees under 5 U.S.C. 89 with 
slight variations to meet the needs of the tribal population. OPM 
performed consultation and developed sub-regulatory guidance in 2011-
2012 to administer the program. OPM has been operating the program 
since then and tribal employers began purchasing FEHB for their 
employees on March 22, 2012 with an insurance coverage effective date 
of May 1, 2012. As of the publication date of this proposed rule, 
19,540 tribal employees and 90 tribes are participating in the program. 
These proposed rules codify the program as set forth in previous 
guidance after extensive work understanding tribal population needs.

Authorizing Legislation

    Section 10221 of the ACA enacted the entire text of S. 1790 as 
reported on December 16, 2009 by the Senate Committee on Indian Affairs 
to Public Law 111-148. S. 1790 revised and extended the IHCIA, 
including adding a new section 409 to the IHCIA (codified at 25 U.S.C. 
1647b).
    This proposed regulation refers to tribes, tribal organizations, 
and urban Indian organizations that are entitled to access insurance 
under section 409 as ``tribal employers.'' Moreover, because the term 
``employee'' as used in 5 U.S.C. chapter 89 is a statutorily defined 
term, OPM refers to a tribal employer's employees who are eligible to 
enroll in FEHB as ``tribal employees.'' \1\ This proposed regulation 
establishes how FEHB enrollment will be administered, including 
eligibility, tribal employer and tribal employee contribution to 
premiums, the process by which tribal employers will access these 
programs, the process by which tribal employees will elect coverage, 
and circumstances for termination and cancellation of enrollment.
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    \1\ The ACA establishes entitlement for certain tribal employers 
to purchase FEHB coverage, rights, and benefits for their tribal 
employees in a manner consistent with the FEHB statute 5 U.S.C. Ch. 
89. The Department of Labor reviewed this notice of proposed 
rulemaking and advised that the tribal employer does not ``establish 
or maintain'' an employee welfare benefit subject to Title I of 
ERISA with such a purchase pursuant to the ACA, and advised that the 
enrollment of tribal employees in FEHB coverage does not affect the 
status of the FEHB as a governmental plan for purposes of the 
exemption from title I of ERISA at 29 U.S.C. 1003(b)(1). In 
addition, the Department of the Treasury, including the Internal 
Revenue Service, reviewed this notice of proposed rulemaking and 
advised that the enrollment of tribal employees in FEHB coverage 
does not affect the status of the FEHB as a governmental plan within 
the meaning of 26 U.S.C. 9832(d)(2).
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    Where practicable, this regulation provides for the administration 
of benefits by and for tribal employers and tribal employees in the 
same manner as these benefits are administered by and for Federal 
agencies and Federal employees. There may be some instances for which 
there is no established procedure in place for the Federal Government, 
such as the procedure and timeline by which tribal employers certify 
entitlement to purchase FEHB. When there are no established procedures 
in place, OPM has proposed a procedure.
    OPM has worked in consultation with tribal leaders to establish 
program rules.

Tribal Consultation

    Under Executive Order 13175, OPM has an obligation to engage in 
``regular and meaningful consultation and collaboration with tribal 
officials in the development of Federal policies that have tribal 
implications.'' OPM is committed to fulfilling this obligation.
    Following the passage of the ACA, OPM published a series of policy 
papers

[[Page 59908]]

(found here under Outreach Documentation) regarding the implementation 
of the Tribal FEHB Program. Tribes, tribal organizations, and urban 
Indian organizations were given an opportunity to provide feedback on 
these papers at outreach events and tribal conferences and meetings. 
Written feedback was also accepted.
    A Tribal Technical Workgroup composed of tribal human resource 
representatives and OPM operational and policy staff was established 
when developing this regulation and in support of the implementation of 
the Tribal FEHB Program. The primary purpose was to ensure system 
requirements for enrollment processing were completed according to the 
needs of tribal employers.
    Additional tribal consultative actions included collaborating with 
the Department of Health and Human Services (HHS) to conduct in-person 
briefings for tribal communities across the country, focusing on the 
implementation of the ACA.
    OPM representatives have attended more than 20 tribal conferences 
and meetings to provide information and consultation about the Tribal 
FEHB Program since its inception. In addition, OPM has hosted training 
sessions for interested tribes and tribal organizations on numerous 
occasions. Tribal Benefits Administration Letters (TBAL) are released 
and distributed to participating tribal employers regularly, just as 
they are for Federal agencies. Questions following the release of a 
TBAL are directed to OPM's dedicated Tribal Desk. The Tribal Desk is 
available during regular business hours and is answered by the OPM 
staff who administer the program. Whenever possible, OPM has created 
direct lines of communication and fostered collaboration between tribal 
employers and OPM employees.
    When important program changes occur, OPM issues Dear Tribal Leader 
Letters (DTLL) to notify tribes, tribal organizations and urban Indian 
organizations. An example was the DTLL issued describing the revision 
of the original ``all-or-nothing'' policy. The original policy had 
required a tribal employer to enroll all of their billing units. Due to 
concerns raised by tribal employers, OPM amended that policy to allow 
tribal employers to select which of their billing units will receive 
FEHB and which will not. As a result, interest in FEHB enrollment has 
increased.
    OPM's obligation to consult with tribal officials is ongoing. OPM 
will consider the public comment period of this proposed rule as an 
important consultation period. Tribal leaders will be alerted of the 
publication of this proposed rule and the process for submitting formal 
comments with a DTLL. As appropriate, OPM will conduct meetings with 
tribal officials to address components of this proposed rule. A DTLL 
will also be issued in tandem with the publication of a final rule.

FEHB Background

    The FEHB Program was established in 1960 to provide health benefits 
to Federal employees, annuitants, spouses, and children. Approximately 
8.2 million employees, annuitants, and family members are now covered. 
Federal employees can choose among various forms of health plans, 
including nationwide Fee-for-Service (FFS) plans, local Health 
Maintenance Organizations (HMO), Consumer-Driven Health Plans (CDHP), 
and High-Deductible Health Plans (HDHP). FEHB plans typically cover 
inpatient and outpatient hospital care, primary care and specialist 
doctor visits, and pharmacy benefits. Some FEHB plans offer limited 
routine vision and dental benefits.
    Currently, there are three FEHB enrollment categories: (1) Self 
only; (2) self plus one; and (3) self and family. A self only 
enrollment covers only the enrollee. A self plus one enrollment covers 
the enrollee and one designated eligible family member. A self and 
family enrollment covers the enrollee and all eligible family members. 
Eligible family members include a spouse and/or child(ren) under age 26 
(including married children, adopted children, and stepchildren). A 
child age 26 or over who is incapable of self-support because of a 
mental or physical disability that existed before age 26 is also an 
eligible family member. A foster child may be covered if the child 
lives with the employee in a parent-child relationship and the employee 
expects to raise the child to adulthood.
    A newly eligible Federal employee can enroll in any FEHB plan 
available in his or her geographic region within 60 days of becoming 
eligible. FEHB coverage is effective the first day of the pay period 
after the enrollment request is received by the Federal employee's 
employing office and that follows a pay period during any part of which 
the employee is in pay status. Federal employees can enroll, cancel 
enrollment, increase or decrease enrollment, or change plans or options 
during the annual open season usually held from mid-November to mid-
December. Any changes made during open season are effective for the 
following calendar year. Enrollees can also change enrollment in 
conjunction with a qualifying life event (QLE), such as marriage, 
divorce, birth or adoption of a child, change in employment status that 
affects insurance coverage or cost, or a move outside of an HMO's 
service area.
    The employing Federal agency pays a Government contribution of 
approximately 72 percent of the weighted average of premiums in effect 
for each calendar year. The Government contribution to any individual 
plan is capped at 75 percent of premium. FEHB plans generally require 
enrollee cost sharing in the form of calendar year deductibles, 
copayments, and/or coinsurance for covered services.

Definitions

    Section 890.1402 defines several terms used in the new subpart N of 
Part 890. This section also includes a series of deemed references. 
Defining these terms and identifying deemed references are necessary to 
make clear how OPM will modify and apply existing regulations to govern 
tribal employers' purchase of FEHB for tribal employees.
    The new subpart N refers to and incorporates many other subparts of 
part 890 that govern how the FEHB Program functions. The deemed 
references make it clear that references to statutory terms such as 
``employee,'' and other terms used throughout part 890 will be deemed 
references to ``tribal employee,'' and other terms as appropriate, in 
context, to govern tribal employers' purchase of FEHB for its tribal 
employees pursuant to the ACA.

Scope of Entitlement for Tribal Employers

    Entitlement to offer FEHB coverage, rights, and benefits will be 
available to any tribe, tribal organization, or urban Indian 
organization carrying out at least one of the programs under the ISDEAA 
or Title V of the IHCIA as specified in section 409 of the IHCIA. The 
terms `` tribe,'' `` tribal organization,'' and `` urban Indian 
organization'' are defined in the IHCIA. Those definitions, set forth 
below, are incorporated by reference in the regulatory text at Sec.  
890.1402 which defines the term `` tribal employer.'' The term `` 
tribal employer'' is used to refer to any of these entities that 
fulfill the requirements to be entitled to purchase FEHB for its 
employees.
    A tribe is any Indian tribe, band, nation, or other organized group 
or community, including any Alaska Native village or group or regional 
or village corporation as defined in or established pursuant to the 
Alaska

[[Page 59909]]

Native Claims Settlement Act (85 Stat. 688) [43 U.S.C.A. 1601 et seq.], 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians. 25 U.S.C. 1603(14).
    A tribal organization is the recognized governing body of any 
Indian tribe; any legally established organization of Indians which is 
controlled, sanctioned, or chartered by such governing body or which is 
democratically elected by the adult members of the Indian community to 
be served by such organization and which includes the maximum 
participation of Indians in all phases of its activities: That in any 
case in which a contract is let or grant made to an organization to 
perform services benefiting more than one Indian tribe, the approval of 
each such Indian tribe shall be a prerequisite to the letting or making 
of such contract or grant. 25 U.S.C. 1603(26), incorporating by 
reference 25 U.S.C. 450b(l) (definition of `` tribal organization'').
    An urban Indian organization is a non-profit corporate body 
situated in an urban center, governed by an urban Indian controlled 
board of directors, and providing for the maximum participation of all 
interested Indian groups and individuals, which body is capable of 
legally cooperating with other public and private entities for the 
purpose of performing the activities described in section 1653(a) of 
this title. 25 U.S.C. 1603(29).
    For purposes of this regulation, tribes and tribal organizations 
carrying out at least one program under the ISDEAA, and urban Indian 
organizations carrying out at least one program under Title V of the 
IHCIA, are entitled to purchase FEHB for their employees. If the tribal 
employer ceases to carry out one of these programs, entitlement to 
purchase FEHB ceases at the end of the calendar year in which the 
tribal employer ceased to carry out one of those programs.
    If OPM determines that a tribal employer is not entitled to 
purchase FEHB, the tribal employer may appeal that decision to OPM. OPM 
retains sole authority for deciding entitlement.
Eligible Tribal Employees
    OPM has defined the term `` tribal employee'' in Sec.  890.1402 
broadly to mean a common law employee of a tribal employer. This 
section incorporates the regulatory standard under the Federal 
employment tax regulations, (which, for this purpose, includes Federal 
Insurance Contributions Act tax and Federal income tax withholding), 
which generally provides that an individual is a common law employee if 
the tribal employer has the right to control and direct the individual 
who performs the services, not only as to the result to be accomplished 
by the work but also as to the details and means by which that result 
is accomplished. This determination is based on all the facts and 
circumstances. The section then indicates that this determination is to 
be guided by a list of 20 factors \2\ developed by the Internal Revenue 
Service (IRS), or any future guidance the IRS releases related to the 
common law employee relationship for Federal employment tax purposes. 
Because OPM expects tribal employers to treat tribal employees 
consistently for purposes of Federal employment taxation and access to 
Federal insurance, the tribal employer's determination of common law 
employee status for purposes of eligibility for FEHB must be consistent 
with any determination of common law employee status made by the tribal 
employer for Federal employment tax purposes.
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    \2\ IRS in Rev. Rul. 87-41, 1987-1 C.B. 296 and referenced in 
Joint Committee on Taxation report JCX-26-07 ``Present Law and 
Background Relating to Worker Classification for Federal Tax 
Purposes,'' dated May 7, 2007 http://www.irs.gov/pub/irs-utl/x-26-07.pdf.
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    OPM recognizes that there may be very limited cases in which a 
tribal employer has determined that a worker is a common law employee 
but has also determined that no Federal employment taxes are due with 
respect to the worker. Under these circumstances, OPM will defer to the 
tribal employer's reasonable determination that the worker is a common 
law employee for purposes of eligibility to enroll in FEHB.
    Each tribal employer entitled to access Federal insurance will be 
able to offer FEHB coverage, rights, and benefits to all of its tribal 
employees, not just those carrying out functions under the ISDEAA or 
IHCIA title V programs. OPM has determined that tribal employees (who, 
by definition, are common law employees) engaged in governmental or 
commercial operations, such as casino or hospitality operations, will 
be eligible to enroll in FEHB if it is purchased by their tribal 
employer. As discussed below, individuals who retire from employment 
with a tribal employer lose their status as tribal employees upon 
retirement and their enrollment will terminate.
    A tribal employer carrying out programs under the ISDEAA or Title V 
of the IHCIA may purchase FEHB for employees of one or more billing 
units carrying out programs or activities under their contract. Once a 
tribal employer has enrolled at least one billing unit carrying out 
programs or activities under ISDEAA or IHCIA, the tribal employer may 
enroll one or more billing units that are not carrying out programs or 
activities under ISDEAA or IHCIA. Section 890.1405 establishes that all 
eligible full-time and part-time tribal employees of each participating 
billing unit of a tribal employer must be offered the opportunity to 
enroll in FEHB. Intermittent, seasonal, and temporary tribal employees 
will be treated similarly to intermittent, seasonal and temporary 
Federal employees. However, under Sec.  890.102(k), the tribal employer 
may choose not to extend coverage to certain intermittent, seasonal, 
and temporary employees if written notification is provided to the 
Director of OPM.
    Tribal employers may not segment tribal employee populations by 
offering a different set of health benefits to different groups of 
tribal employees within a single billing unit. An exception to this 
rule is if tribal employees within a billing unit are offered 
alternative coverage as part of a collective bargaining agreement.

Coverage of Family Members

    As described in Sec.  890.1405(e), family members of tribal 
employees will be eligible for coverage in FEHB under substantially the 
same terms as family members of Federal employees. One exception is 
that former spouses of tribal employees may not enroll in FEHB under 
the Civil Service Retirement Spouse Equity Act. This is because Spouse 
Equity coverage is linked to the former spouse's entitlement to a 
portion of a Federal employee's annuity. Another exception is that if 
the tribal employee dies while employed, a surviving spouse cannot 
continue FEHB enrollment or enroll in his or her own right, unless the 
surviving spouse is also FEHB-eligible through his or her employment. 
This is because continuing FEHB eligibility for surviving spouses of 
Federal employees is linked to a survivor annuity.
    Section 890.1406 states that correction of enrollment errors will 
take place according to the same terms as for Federal employees. 
Requirements for tribal employees' appeals of eligibility and 
enrollment decisions are described in Sec.  890.1415.

Tribal Employer and Tribal Employee Contributions and Administrative 
Fee

    Section 890.1403 explains that a tribal employer is entitled to 
purchase FEHB if payment, defined by Sec.  890.1402 as all premiums 
plus administrative fees, are currently deposited in the Employees 
Health Benefits Fund, as required by the authorizing statute. This 
section

[[Page 59910]]

provides that a payment will be considered ``currently deposited'' if 
it is received by the Fund before, during, or within fourteen days 
after the end of the calendar month covered by the payment.
    Section 890.1413 describes how payment will work for tribal 
employers participating in FEHB. Tribal employer and tribal employee 
contributions for FEHB will be handled similarly for tribal employees 
as for Federal employees, with the tribal employer responsible for 
contributing a share of premium that is at least equivalent to the 
share of premium that the Federal Government contributes for Federal 
employees. The percentage contribution requirements are described in 5 
U.S.C. 8906. The FEHB contributions for part-time tribal employees 
working between 16 and 32 hours per week may be pro-rated in accordance 
with the terms applicable to part-time Federal employees. FEHB 
enrollment for tribal employees on unpaid leave may be continued in a 
manner similar to Federal employees on unpaid leave under 5 CFR 
890.502(b), as long as the full premium is paid.
    The tribal employer's FEHB contribution percentage must equal or 
exceed the contribution that the Federal Government would make each 
month for a Federal employee for the same plan. Tribal employers may 
elect to pay a greater tribal employer contribution, but may not pay a 
lesser amount than the Federal Government contribution for each plan. 
There is no cap on the percentage of premium that a tribal employer may 
contribute. The tribal employer may vary the contribution by type of 
enrollment (self only, self plus one, self and family) but must treat 
tribal employees in a uniform manner. As an example, a tribal employer 
could contribute 100% for all tribal employees in self only or self 
plus one enrollments and 90% for all tribal employees in self and 
family enrollments. Tribal employers may not vary the tribal employer 
contribution in order to encourage or discourage enrollment in any 
particular plan or plan option. Tribal employers may choose to vary the 
contribution amounts for each billing unit, provided each billing unit 
meets the requirements set forth above.
    In addition, the tribal employer is required to pay an 
administrative fee, in an amount set by OPM each year, for each tribal 
employee's enrollment on a monthly basis. This fee covers the costs of 
a paymaster to perform the collection and remittance functions that is 
performed for Federal employees by Federal payroll offices. The 
paymaster is the entity designated by OPM as responsible for receiving 
FEHB premiums from the tribal employer, forwarding premiums to the 
Employees Health Benefits Fund, and maintaining enrollment records for 
all participating tribal employers. Tribal employers may not charge 
this fee to tribal employees. The total aggregate amount for tribal 
employees' and tribal employer's share of the premium and the 
administrative fee must be available for receipt by the paymaster on an 
agreed upon date set in the agreement with the tribal employer.

Tribal Employers' Entitlement and Election to Purchase FEHB

    Section 890.1404 establishes a process by which tribal employers 
may demonstrate entitlement and elect to purchase, FEHB for their 
tribal employees. The tribal employer must notify OPM by email or 
telephone of the intention to purchase FEHB. Through an agreement 
described in Sec.  890.1404(b), OPM will confirm: (1) The tribal 
employer's contact information; (2) the date that FEHB coverage will 
begin; (3) the approximate number of tribal employees eligible to 
enroll; (4) the tribal employer's agreement not to make available to 
FEHB-eligible tribal employees alternate tribal employer-sponsored 
health insurance coverage concurrent with FEHB; (5) the tribal employer 
is entitled to participate in the FEHB by carrying out at least one 
program under ISDEAA or title V of IHCIA; (6) the tribal employer's 
acknowledgement that participation in FEHB makes the tribal employer 
subject to Federal Government audit with respect to such participation 
and to OPM authority to direct the administration of the program; (7) 
the tribal employer's agreement to establish or identify an independent 
dispute resolution panel to adjudicate appeals of determinations made 
by a tribal employer regarding an individual's status as a tribal 
employee; (8) the tribal employer's agreement to supply necessary 
enrollment information, payment of the tribal employer and tribal 
employee share of premium and payment of an administrative fee to the 
paymaster; (9) the tribal employer's agreement to notify OPM in the 
event that the tribal employer is no longer carrying out at least one 
program under the ISDEAA or title V of IHCIA, and (10) the tribal 
employer's agreement to abide by other terms and conditions of 
participation.
    Section 890.1404(c) allows a tribal employer to elect to purchase 
FEHB at any time. The election to purchase FEHB will commit the tribal 
employer to purchase FEHB at least through the remainder of the 
calendar year in which the election is made. Elections will be 
automatically renewable year to year unless revoked by the tribal 
employer or terminated by OPM. Section 890.1404(d) allows a tribal 
employer to revoke its election to purchase FEHB with 60 days' notice 
to OPM. If a tribal employer revokes an election to purchase FEHB, that 
tribal employer may only re-elect to purchase FEHB during the first 
annual open enrollment season that occurs at least twelve months after 
the election is revoked. If the tribal employer revokes an election to 
participate a second time, the tribal employer may only re-elect to 
purchase FEHB during the first open season that falls at least twenty-
four months after the second revocation. Section 890.1404(f) states 
that OPM maintains final authority to determine entitlement of a tribal 
employer to purchase FEHB.
    A tribal employer that begins to carry out a program under ISDEAA 
or Title V of IHCIA after this rule is effective may notify OPM of its 
intention to purchase benefits after the entitlement is established. 
Section 890.1407 states that a tribal employer electing to purchase 
FEHB for its employees may not concurrently make contributions toward 
non-FEHB tribal employer-sponsored health insurance to any tribal 
employee eligible for FEHB. However, a tribal employer electing FEHB 
may concurrently offer non-FEHB dental, vision, or disability coverage. 
This requirement will keep tribal employees' enrollment conditions 
aligned with those of Federal employees.

Interaction With Other FEHB Coverage

    Section 890.1405(f) establishes that eligibility to enroll in FEHB 
does not cause any tribal employee to be identified or characterized as 
a Federal employee, nor does it convey any additional rights or 
privileges of Federal employment. There may be circumstances in which a 
tribal employee is also an FEHB-eligible Federal employee. In such a 
case, the tribal employee may participate in FEHB through either 
employer. A tribal employee who is also a Federal employee cannot 
enroll in FEHB through both employers. FEHB enrollments may be 
transferred between Federal employing offices and tribal employers in a 
similar manner as transfer of enrollments between Federal agencies.

Initial Tribal Employee Enrollment Period, Open Season, and QLEs

    Section 890.1405 describes tribal employee eligibility for 
enrollment in FEHB. Tribal employees will be able to enroll in FEHB 
after an agreement

[[Page 59911]]

between the tribal employer and OPM is signed. The effective date of 
coverage will be decided by the tribal employer and OPM. A third party 
paymaster will handle payroll functions including remitting tribal 
employer and tribal employee contributions to FEHB premiums.
    The enrollment process for tribal employees into FEHB is described 
in Sec.  890.1407. Tribal employers must establish an initial 
enrollment opportunity for tribal employees. After that initial 
enrollment opportunity, for plan years during which a tribal employer's 
election to offer FEHB is in place, the FEHB enrollment period for 
tribal employees will be the same as for Federal employees: Up to 60 
days after becoming a new tribal employee or changing to an eligible 
position, during the annual open season, or 31 days before to 60 days 
after experiencing a qualifying life event. The effective date of 
enrollment for tribal employees will be the same as for Federal 
employees under parts 890 or 892, depending on premium conversion 
status. Upon enrollment in the FEHB Program, tribal employees will 
choose among the same nationwide and local FEHB plans that are 
available to Federal employees.
    Section 890.1408 describes the circumstances under which a tribal 
employee may change enrollment type, plan, or option. These changes are 
allowed and will take effect under the same circumstances as for 
Federal employees. Changes may be restricted if the tribal employer has 
a premium conversion plan in effect (pre-tax treatment of premiums) and 
the tribal employee has elected premium conversion.

Cancellation of Coverage, Decreases in Enrollment

    Section 890.1409 establishes that a tribal employee may cancel his 
or her FEHB coverage or decrease his or her enrollment only under the 
same circumstances as a Federal employee. If the tribal employee has 
elected premium conversion, this cancellation or change is restricted.

Termination of Enrollment

    Section 890.1410 establishes that FEHB enrollment will terminate 
when employment with the tribal employer ends due to resignation, 
dismissal, or retirement, or when the tribal employer discontinues its 
purchase of FEHB. Termination of enrollment does not refer to a 
voluntary cancellation by the tribal employee during a period of 
continued employment. Upon termination of enrollment, the tribal 
employee will receive a 31-day temporary extension of coverage without 
premium contribution from the tribal employee or tribal employer and 
will have an opportunity to convert to an individual policy. Tribal 
employees whose FEHB enrollment terminates due to separation from 
tribal employment (unless the separation is for gross misconduct) are 
also eligible for temporary continuation of FEHB coverage (TCC), 
described at 5 U.S.C. 8905a and 5 CFR part 890 subpart K.
    If an FEHB enrollment is terminated due to the death of the tribal 
employee, the tribal employee's spouse and covered children are 
entitled to a 31-day temporary extension of coverage and opportunity to 
convert to an individual policy. Covered children, if any, may elect 
TCC and may cover the tribal employee's surviving spouse as a member of 
family.

Termination Due to Non-Payment of Premiums

    Section 890.1410(f) establishes that insufficient payment from the 
tribal employer to the paymaster can result in termination of 
enrollment for all of the tribal employer's tribal employees affected 
by the paymaster's failure to obtain current deposit. In such a case, 
FEHB enrollment for all affected tribal employees will be terminated 
according to a process determined by OPM. FEHB enrollment of all tribal 
employees affected by the paymaster's failure to obtain current deposit 
will be terminated effective as of midnight on the last day of the 
month in which premium payment was received. These tribal employees 
will be entitled to a 31-day temporary extension of coverage without 
additional premium contribution and the opportunity to convert to an 
individual policy. In the event that a tribal employer elects to 
purchase FEHB and does not pay premiums for the first month in which 
payment is due, no 31-day temporary extension of coverage or 
opportunity to convert to an individual policy will be provided. 
Termination of enrollment due to non-payment of premiums in either case 
will not result in an opportunity to enroll in TCC since current tribal 
employees do not meet the conditions for TCC enrollment. Tribal 
employers will have full responsibility for communicating notice of 
termination of enrollment, and accompanying rights and obligations, to 
their tribal employees. Any outstanding premium due for coverage in 
arrears will be treated as a debt owed solely by the tribal employer.

Temporary Continuation of Coverage (TCC)

    Tribal employees and certain family members whose FEHB coverage 
terminates under certain circumstances can elect to purchase temporary 
continuation of coverage (TCC) for up to 18 or 36 months. Section 
890.1411 establishes the criteria for TCC participation for tribal 
employees and their family members. In general, tribal employees who 
are enrolled in FEHB and separate from tribal employment, except for 
reasons of gross misconduct, may elect to purchase TCC. Certain 
formerly covered family members, including children or stepchildren who 
no longer meet the requirements of a covered family member, and former 
spouses, may elect TCC. The surviving spouse of a deceased enrollee who 
was enrolled in FEHB is not eligible to elect TCC, but may be covered 
by the TCC enrollment of an eligible child.
    The administrative fee is the same as would apply to a former 
Federal employee enrolled in TCC. The administrative fee described in 
Sec.  890.1413(e) would not apply to a TCC enrollment of a tribal 
employee or family member.

Non-Pay Status, Insufficient Pay, or Change to Ineligible Position

    Section 890.1412 establishes that a tribal employee in non-pay 
status or with insufficient pay to cover the premium costs may continue 
FEHB enrollment for up to 365 days. Tribal employees in non-pay status 
due to uniformed service are entitled to continue FEHB enrollment for 
up to 24 months. After termination, the tribal employee and covered 
family members are entitled to a 31-day temporary extension of coverage 
without premium contribution, and conversion to an individual policy.
    Section 890.1412 also establishes that a temporary tribal employee 
who has insufficient pay to cover the employee share of FEHB premiums 
may choose a less expensive plan. If the tribal employee does not or 
cannot move to a less expensive plan, the FEHB enrollment will be 
terminated and the enrollee is entitled to a 31-day temporary extension 
of coverage without premium contribution and may convert to an 
individual policy.
    If a tribal employee moves from an FEHB-eligible to a FEHB 
ineligible position, the FEHB enrollment can continue if there has not 
been a break in service of more than three days. If there has been a 
break in service of longer than three days, FEHB enrollment will 
terminate at midnight of

[[Page 59912]]

the last day of the pay period in which the employment status changed. 
Such a tribal employee will be entitled to a 31-day temporary extension 
of coverage without premium contribution and may convert to an 
individual policy.

Responsibilities of the Tribal Employer

    Section 890.1414 describes the responsibilities of the tribal 
employer. These include premium payment, eligibility determinations, 
enrollment, establishment of appeals process, communications regarding 
FEHB, and notification requirements.

Eligibility and Enrollment Decisions and Appeal Rights

    Section 890.1415 requires that a tribal employer establish or 
identify an independent panel to resolve disputes about eligibility of 
individuals for FEHB enrollment. This panel must be authorized to 
adjudicate such disputes and enforce eligibility and enrollment 
determinations. The tribal employer must inform tribal employees of 
this avenue for dispute resolution. Decisions of the independent panel 
must be written, a record of evidence considered by the panel must be 
retained and available for OPM review, and the panel decisions remain 
subject to final OPM authority.

Filing Claims for Payment or Service; Court Review of Disputed Claims

    Section 890.1416 describes the procedures for (1) filing claims for 
payment or service; and (2) invoking the provisions for court review of 
disputed claims. Both situations will follow the established procedures 
for Federal employees.

No Continuation of FEHB Enrollment Into Retirement From Employment With 
a Tribal Employer

    Section 890.1417 states that an FEHB enrollment cannot be continued 
into retirement from employment with a tribal employer. This is a 
statutory requirement as the law entitles tribal employers to purchase 
FEHB for employees but it does not extend that entitlement to permit 
tribal employers to purchase FEHB for retirees.
    A Federal annuitant may continue FEHB into retirement and any 
enrollment in, or coverage as a family member under FEHB during 
employment with a tribal employer will count toward the ``five-year 
rule.'' The ``five-year rule'' generally requires five years of pre-
retirement FEHB enrollment, or coverage as a family member, in order to 
continue FEHB into retirement. Section 890.1417 further states that a 
Federal annuitant who has continued FEHB into retirement and who begins 
post-retirement employment with a tribal employer that has elected to 
purchase FEHB may transfer the FEHB enrollment with his or her Federal 
retirement system to an enrollment with the tribal employer in a 
similar manner as that used for Federal annuitants re-employed by 
Federal agencies.

No Continuation of FEHB Enrollment for Compensationers Past 365 days

    Section 890.1418 establishes that tribal employees who are not also 
Federal employees, but are receiving worker's compensation benefits in 
leave without pay status for more than 365 days under programs run by 
the U.S. Department of Labor may not be enrolled in FEHB.

Regulatory Impact Analysis

    OPM has examined the impact of this proposed rule as required by 
Executive Order 12866 and Executive Order 13563, which directs agencies 
to assess all costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public, health, and safety effects, distributive impacts, and equity), 
and based on that analysis, it has determined that it is an 
economically significant rule. A regulatory impact analysis must be 
prepared for economically significant rules.

Need for Regulatory Action

    As part of the ACA, section 10221 incorporated and enacted S. 1790, 
the Indian Health Care Improvement Reauthorization and Extension Act of 
2009, resulting in the addition of section 409 to the IHCIA. Section 
409 allows tribes, tribal organizations and urban Indian organizations 
carrying out specific programs under Federal law to purchase the rights 
and benefits FEHB Program for their employees. As the administrator of 
the FEHB, OPM has extended eligibility to entitled tribal employees 
within the meaning of section 409. Section 409 has been implemented and 
over 16,000 tribal employees are currently covered by FEHB. Federal 
regulations are necessary to protect the interests of all stakeholders, 
memorialize processes and procedures, and provide transparency.

Regulatory Baseline

    The costs, benefits and transfers assessed in remaining portions of 
this regulatory impact analysis reflect existing FEHB coverage of 
tribal employees. This analysis is consistent with the guidance 
provided in OMB Circular A-4.

Benefits of Coverage

    Health insurance coverage improves access to health care services, 
including preventive services, improves clinical outcomes, financial 
security, and decreases uncompensated care.\3\ Although section 409 
extends FEHB to employees of tribes, tribal organizations, and urban 
Indian organizations regardless of their status as tribal members, the 
authorizing legislation for this regulation falls under 25 U.S.C. 
Chapter 18 which clearly outlines congressional intent to ``maintain 
and improve the health of the Indians'' and identifies providing ``the 
resources, processes, and structure that will enable Indian tribes and 
tribal members to obtain the quantity and quality of health care 
services and opportunities that will eradicate the health disparities 
between Indians and the general population of the United States'' as a 
major national goal of the United States (section 1601). Thus, the 
following section discusses the benefits of extending health insurance 
to tribal members, rather than to tribal employees in general.
---------------------------------------------------------------------------

    \3\ See Patient Protection and Affordable Care Act; 
Establishment of Exchanges and Qualified Health Plans, Exchange 
Standards for Employers (CMS-9989-FWP) and Standards Related to 
Reinsurance, Risk Corridors and Risk Adjustment (CMS-9975-F) for a 
more detailed description of the benefits of health insurance.
---------------------------------------------------------------------------

    While the exact benefits of health insurance are difficult to 
quantify, evidence supports that American Indians and Alaska Natives 
could benefit more from health insurance than the average population. 
According to a 2013 Kaiser Family Foundation report, American Indians 
and Alaska Natives were more likely than other nonelderly adult 
Americans to report being in fair or poor health, being overweight or 
obese, having diabetes and cardiovascular disease, and experiencing 
frequent mental distress.\4\ They had limited access to employer-
sponsored coverage because more were unemployed or in low-wage jobs 
that did not offer health benefits. Almost a third of them were 
uninsured. More than 90% had incomes below 400% and 60% had incomes 
below 138% of the Federal poverty level. The infant mortality rate was 
150 percent higher for Native American infants than white infants, and 
the suicide rate for Native

[[Page 59913]]

Americans was two and a half times the national rate.\5\
---------------------------------------------------------------------------

    \4\ Kaiser Family Foundation, ``Health Coverage and Care for 
American Indians and Alaska Natives,'' October 2013.
    \5\ Then Senator Barack Obama, Indian Health Care Improvement 
Act Amendments of 2007 Floor Speech, U.S. Senate, January 2008.
---------------------------------------------------------------------------

    The Indian Health Service (IHS), which provides services through a 
network of hospitals, clinics, and health stations to about 2.2 million 
American Indians and Alaska Natives, has historically been underfunded. 
Access to services varies significantly by location and funds are 
insufficient to meet health care needs. According to the Federal 
Disparity Index, in 2010 the IHS funds covered less than 60% of those 
needed to pay for coverage equivalent to that of Federal employees.\6\
---------------------------------------------------------------------------

    \6\ The Federal Employees Health Plan Disparity Index 
(hereinafter ``FDI'') is an index comparing Indian Health Service 
(IHS) funding to the cost of providing medical insurance for 
American Indian/Alaska Native (AI/AN) users in a mainstream health 
insurance plan such as that offered under the Federal Employees 
Health Benefits Program (FEHBP). The FDI uses actuarial methods that 
control for age, sex, and health status to price health benefits for 
Indian people using the FEHBP, which is then used to make per capita 
health expenditure comparisons. See http://www.nihb.org/docs/07112013/FY%202015%20IHS%20budget%20full%20report_FINAL.pdf for 2010 
information.
---------------------------------------------------------------------------

    Health services not available through direct care must be purchased 
through the Purchased/Referred Care (PRC) (formerly Contract Health 
Services) \7\ program. Some estimates indicate that the PRC program has 
lost at least $778 million due to unfunded medical inflation and 
population growth between 1992 and 2008.\8\ This has resulted in 
allocating of health care services using the PRC medical priority 
system, in which many patients cannot receive care unless they are in a 
priority status. In FY 2007, this under-funding resulted in a backlog 
of over 300,000 health services that were not provided because there 
was not enough funding. Unfortunately, the denied/deferred services 
report understates the need of PRC resources due to data limitations 
and the fact that many tribes no longer report deferred or denied 
services because of the expense involved in tracking.
---------------------------------------------------------------------------

    \7\ This program was renamed in The Consolidated Appropriations 
Act of 2014 to the Purchased/Referred Care program. Discussion in 
this regulatory impact analysis provides pre-statutory examples 
covering 1992-2008 and cites the 2009 budget request. Although there 
is currently still major unmet need, funding for this program has 
increased from $579 million in FY 2008 to $914 million in FY 2016. 
See the FY17 Congressional Budget Justification at https://www.ihs.gov/budgetformulation/includes/themes/newihstheme/documents/FY2017CongressionalJustification.pdf for more up to date 
information.
    \8\ ``The FY 2009 IHS Budget: Analysis and Recommendations,'' p. 
22, March 17, 2008, available at: www.npaihb.org.
---------------------------------------------------------------------------

    The sources referenced above illustrate the health disparities 
specific to the Native American population. Expanding healthcare access 
to this group not only addresses this disparity and generates benefits 
to the individual, but also generates societal benefits in the form of 
decreased healthcare costs for chronic illnesses, increased employee 
productivity, and a healthier population that are the result of 
expanding access to healthcare to any group.

Costs of Coverage

    In the following section, costs associated with this rule are 
analyzed for the following groups: Tribal employers, tribal employees, 
the Tribal Insurance Processing System (TIPS) (the system used by the 
current paymaster), OPM, and FEHB carriers. Most of the costs described 
below either result in a direct benefit to the individual or are 
transfers from one group to another. For example, costs incurred by 
tribal employees (premiums, deductibles, copays, etc.) result in 
individual benefits in the form of improved health outcomes. Costs 
incurred by tribal employers to cover premiums are a benefit to tribal 
employees. OPM has determined that the total dollar amounts do meet the 
threshold for this to be considered an economically significant rule.
    OPM analyzed actual fiscal year 2015 enrollment data for the over 
16,000 tribal employees enrolled in the FEHB Program and found the 
annual cost of enrollment to be $168.5 million. This includes both 
premiums and the administrative fee added to each tribal FEHB 
enrollment. The administrative fee covers the costs of program 
administration for the paymaster.\9\ A per member per month (cost per 
month for each covered individual) cost of approximately $413 was 
calculated.\10\
---------------------------------------------------------------------------

    \9\ This number does not include OPM's administrative costs to 
operate this program.
    \10\ The number of enrollments was multiplied by a family factor 
to estimate total covered lives including family members. The family 
factor is calculated for the FEHB Program as a whole, not based on 
actual tribal enrollment. The total annual cost was then divided by 
the total number of covered lives, the result of this was divided by 
12 to estimate the cost per member per month.
---------------------------------------------------------------------------

    Premiums in the FEHB Program have increased between 3-6% each year 
for the last five years, below increases in the commercial market. As 
enrollment increases, total spending on premium costs will increase. 
However, the administrative fee will likely decrease as administrative 
costs are spread among a growing number of enrollments.

Costs for Tribal Employers

    To cover the cost of program administration, this proposed rule 
includes an administrative fee assessed on a per contract basis, paid 
by the tribal employer.\11\ OPM has contracted with a paymaster to 
develop and maintain TIPS, an online portal for the input of enrollment 
data and transmission to carriers.
---------------------------------------------------------------------------

    \11\ This is analogous with Federal agencies who cover the cost 
of program administration without an additional fee to employees.
---------------------------------------------------------------------------

    For fiscal year 2015, the administrative fee was $15.15 per 
contract; for fiscal year 2016 it is $12. This fee is adjusted to align 
with actual programmatic costs. As enrollment increases, this cost will 
go down as the costs of maintaining TIPS will be spread among more 
enrollments.
    The cost of coverage for each tribal employer depends upon the 
number of enrollees covered, the health plans selected by those 
enrollees, and the portion of the premium paid by the employer.
    Currently, the largest number of employees enrolled for one tribal 
employer is just under 4,000 and the smallest tribal employers have 
just one employee enrolled.\12\ The majority of participating tribal 
employers have fewer than 150 employees enrolled, with a program-wide 
median of 71 enrolled employees.
---------------------------------------------------------------------------

    \12\ Based on September 2015 enrollment.
---------------------------------------------------------------------------

    The average cost per enrollment in the program, including the 
administrative fee, is estimated at approximately $10,172.\13\
---------------------------------------------------------------------------

    \13\ Total annual cost (including administrative fee) divided by 
number of enrollees (using September 2015 data).
---------------------------------------------------------------------------

    Tribal employers are required by this rule to contribute to the 
premium for tribal employees at least the same as the Federal 
government does for its employees and may contribute more, up to 100% 
of the premium costs. The Federal government contribution is 
statutorily defined as the lesser of 72% of the weighted average of all 
premiums or 75% of the plan premium.\14\ This averages out to 
approximately 70% paid by the employer, program-wide.
---------------------------------------------------------------------------

    \14\ 5 U.S.C. 8906.
---------------------------------------------------------------------------

    Based on averages for fiscal year 2015, a tribal employer may pay 
from just over $7,000 to over $40 million, depending on the number of 
tribal employees covered and percentage of premium contributed by the 
tribal employer. Of course, actual costs will vary based on plan 
selection.

[[Page 59914]]

    Tribal employers assess the cost of participating and recognize 
that participation in the FEHB Program is a business decision made by 
the employers themselves. It often is a decision made by comparing the 
cost of other forms of health coverage and coverage through the FEHB 
Program. For those tribes that choose to participate it can be assumed 
that the benefits outweigh the costs of participation.

Costs for Tribal Employees

    Costs for tribal employees depend upon the plan selected, 
enrollment type, and the percentage of premium contributed by the 
tribal employer. Based on FY15 data, the average cost for an annual 
enrollment is approximately $10,035 \15\ with an average annual 
employee contribution of approximately $3,011. The actual tribal 
employee contribution varies based on the tribal employer contribution 
towards the premium.
---------------------------------------------------------------------------

    \15\ Does not include the Administrative Fee, which is covered 
by tribal employers.
---------------------------------------------------------------------------

    Other costs such as copays, deductibles, and coinsurance are also 
the responsibility of the tribal employee, to the extent that such cost 
sharing is not otherwise prohibited by Federal law. These costs differ 
based on plan selection and utilization. Individual enrollment in the 
FEHB Program is voluntary so it can be assumed that the benefits to the 
individual of enrolling in tribal employer-sponsored coverage outweigh 
the costs of enrollment.

Administration of TIPS

    Annual costs for administering TIPS, incurred by the paymaster, are 
described in the chart below. These costs are covered by the 
administrative fee paid by tribal employers.

------------------------------------------------------------------------
                         Dates                                Costs
------------------------------------------------------------------------
May 2012 (launch date) through Sept 30, 2012..........     $1,096,932.00
2013 Fiscal year......................................      1,677,293.68
2014 Fiscal year......................................      1,653,397.93
2015 Fiscal year......................................      1,815,660.00
------------------------------------------------------------------------

Costs for OPM

    Implementation of the Tribal FEHB Program began in fiscal year 
2011. In addition to policy development and tribal consultation costs, 
OPM contracted with a paymaster to develop an electronic enrollment 
portal for tribal employers. Development of the Tribal Insurance 
Processing System (TIPS) cost approximately $3.9 million. OPM received 
approximately $3 million in funds from the Department of Health and 
Human Services' (HHS) Health Insurance Reform Implementation Fund and 
covered the remaining costs from funds appropriated to OPM.
    OPM continues to incur costs associated with managing the Tribal 
FEHB Program. These costs are not covered by the administrative fee 
included in each tribal enrollment. See the chart below for Full Time 
Equivalent in FY2012-FY2015.

------------------------------------------------------------------------
                       Fiscal year                              FTE
------------------------------------------------------------------------
FY2012..................................................             5.3
FY2013..................................................             3.5
FY2014..................................................             2.3
FY2015..................................................             1.8
------------------------------------------------------------------------

FEHB Carriers

    The impact on carriers is relatively small, as tribal enrollments 
are a very small percentage of the over 4 million FEHB enrollments. 
Premiums cover claims costs, administrative costs, plus a small profit 
known as the service charge.

Conclusion

    While this rule meets the thresholds in Executive Orders 12866 and 
13563 to be deemed an economically significant rule, many of the 
associated costs constitute transfers among involved parties. Under the 
provisions of this rule, participation in the FEHB Program is voluntary 
for both tribal employers and tribal employees. This, in conjunction 
with the relationship between costs incurred and the benefits of 
offering coverage, indicates that the benefits of this rule outweigh 
the costs.

List of Subjects on 5 CFR Part 890

    Administrative practice and procedure, Government employees, Health 
insurance.

U.S. Office of Personnel Management.

Beth F. Cobert,
Acting Director.

    For the reasons set forth in the preamble, OPM amends 5 CFR part 
890 to read 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. 890.303 also issued under Sec. 50 
U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; Subpart L also issued 
under Sec. 599C of Public Law 101-513, 104 Stat. 2064, as amended; 
Sec. 890.102 also issued under Secs. 11202(f), 11232(e), 11246(b) 
and (c) of Public Law 105-33, 111 Stat. 251; Sec. 721 of Public Law 
105-261, 112 Stat. 2061 unless otherwise noted; Sec. 890.111 also 
issued under Sec. 1622(b) of Public Law 104-106, 110 Stat. 515. 
Subpart N issued under Sec. 10221, Pub. L. 111-148, 124 Stat 935 [25 
U.S.C. 1647b].

0
2. Add new subpart N to read as follows:
Subpart N--Federal Employees Health Benefits for Employees of Certain 
Indian Tribal Employers
Sec.
890.1401 Purpose.
890.1402 Definitions and deemed references.
890.1403 Tribal employer purchase of FEHB requires current deposit 
of payment.
890.1404 Tribal employer election and agreement to purchase FEHB.
890.1405 Tribal employees eligible for enrollment.
890.1406 Correction of enrollment errors.
890.1407 Enrollment process; effective dates.
890.1408 Change in enrollment type, plan, or option.
890.1409 Cancellation of coverage or decreases in enrollment.
890.1410 Termination of enrollment and 31-day temporary extension of 
coverage; and conversion to individual policy.
890.1411 Temporary Continuation of Coverage (TCC).
890.1412 Non-pay status, insufficient pay, or change to ineligible 
position.
890.1413 Premiums and administrative fee.
890.1414 Responsibilities of the tribal employer.
890.1415 Reconsideration of enrollment and eligibility decisions and 
appeal rights.
890.1416 Filing claims for payment or service and court review.
890.1417 No continuation of FEHB enrollment into retirement from 
employment with a tribal employer.
890.1418 No continuation of FEHB enrollment in compensationer status 
past 365 days.

Subpart N--Federal Employees Health Benefits for Employees of 
Certain Indian Tribal Employers


Sec.  890.1401  Purpose.

    This subpart sets forth the conditions for coverage, rights, and 
benefits under Chapter 89 of title 5, United States Code, according to 
the provisions of 25 U.S.C. 1647b.


Sec.  890.1402  Definitions and deemed references.

    (a) In this subpart--
    Billing unit is a subdivision of the tribal employer's workforce 
that aligns tribal employees for purposes of administering FEHB 
enrollment and collection of payment. A billing unit may be either 
governmental or commercial or a combination of both. So long as a 
tribal employer purchases FEHB for at least one billing unit that is 
carrying out at least one program under ISDEAA or IHCIA, the tribal 
employer

[[Page 59915]]

may purchase FEHB for other billing units without regard to its 
programs.
    Pay period is the interval of time for which a paycheck is issued 
by the tribal employer for work performed by the tribal employee.
    Paymaster is the entity designated by OPM as responsible for 
receiving FEHB premiums from the tribal employer, forwarding premiums 
to the Employees Health Benefits Fund, and maintaining enrollment 
records for all participating tribal employers.
    Payment is the sum of the tribal employer's share of premium plus 
the tribal employees' share of premium plus any administrative fees or 
costs required under this subpart, due for the enrollment, in the 
aggregate, of the tribal employer's tribal employees.
    Tribal employee is a full-time or part-time common law employee of 
a tribal employer. An individual is a common law employee if, based on 
all the facts and circumstances, the tribal employer has the right to 
control and direct the individual who performs the services, not only 
as to the result to be accomplished by the work but also as to the 
details and means by which that result is accomplished. This 
determination is based on all facts and circumstances and shall be 
guided by the factors described by the Internal Revenue Service in Rev. 
Rul. 87-41, 1987-1 C.B. 296 and referenced in Joint Committee on 
Taxation report JCX-26-07 Present Law and Background Relating to Worker 
Classification for Federal Tax Purposes, dated May 7, 2007, and shall 
be consistent with the tribal employer's determination of common law 
employee status for Federal employment tax purposes, if any. For 
purposes of this subpart, tribal employees do not include retirees or 
annuitants of a tribal employer, volunteers of a tribal employer, or 
others who are not common law employees of a tribal employer. 
Categories of excluded tribal employees are described at Sec.  
890.1405(b). FEHB benefits available to tribal employees are set forth 
in this subpart and to the extent there exists any ambiguity or 
inconsistency between this subpart and other subparts of Part 890, the 
terms of this subpart will govern FEHB benefits available to tribal 
employees.
    Tribal employer is an Indian tribe or tribal organization (as those 
terms are defined in 25 U.S.C. Chapter 18, ``Indian Health Care'') 
carrying out at least one program under the Indian Self-Determination 
and Education Assistance Act or an urban Indian organization (as that 
term is defined in 25 U.S.C. Chapter 18, ``Indian Health Care'') 
carrying out at least one program under the title V of the Indian 
Health Care Improvement Act, provided that the tribe, tribal 
organization, or urban Indian organization certifies entitlement to 
purchase FEHB according to the process described in subpart N. FEHB 
benefits that tribal employers are entitled to purchase for their 
tribal employees are set forth in this subpart and to the extent there 
exists any ambiguity or inconsistency between this subpart and other 
subparts of Part 890, the terms of this subpart will govern FEHB 
benefits available for purchase by tribal employers.
    (b) In this subpart, wherever reference is made to other subparts 
of Part 890:
    (1) A reference to employee is deemed a reference to tribal 
employee;
    (2) A reference to employer is deemed a reference to tribal 
employer;
    (3) A reference to enrollee is deemed a reference to a tribal 
employee in whose name the enrollment is carried;
    (4) A reference to employing agency, employing office, or agency is 
deemed a reference to tribal employer, and/or if the reference involves 
the subject of a paymaster function, the paymaster, as appropriate;
    (5) A reference to United States, Federal Government, or Government 
in the capacity of an employer is deemed a reference to tribal 
employer;
    (6) A reference to Federal Service or Government Service is deemed 
a reference to employment with a tribal employer;
    (7) A reference to annuitant, survivor annuitant, or an individual 
with entitlement to an annuity is deemed inapplicable in the context of 
this subpart; and
    (8) A reference incorporated into this subpart that does not 
otherwise apply to tribal employees and tribal employers shall have no 
meaning and is deemed inapplicable in the context of this subpart.


Sec.  890.1403  Tribal employer purchase of FEHB requires current 
deposit of payment.

    (a) A tribal employer shall be entitled to purchase coverage, 
rights, and benefits for its tribal employees under chapter 89 of title 
5, United States Code, if payment for the coverage, rights, and 
benefits for the period of employment with such tribal employer is 
currently deposited in the Employees Health Benefits Fund.
    (b) Payment will be considered currently deposited if received by 
the Employees Health Benefits Fund before, during, or within fourteen 
days after the end of the month covered by the payment.
    (c) Purchase of FEHB coverage by a tribal employer confers all the 
rights and benefits of FEHB as set forth in subpart N to the tribal 
employer and tribal employee.


Sec.  890.1404  Tribal employer election and agreement to purchase 
FEHB.

    (a) A tribal employer that intends to purchase FEHB for its tribal 
employees shall notify OPM by email or telephone.
    (1) A tribal employer must purchase FEHB for at least one billing 
unit carrying out programs or activities under the tribal employer's 
ISDEAA or IHCIA contract.
    (2) For so long as a tribal employer continues to purchase FEHB for 
at least one billing unit carrying out programs or activities under a 
tribal employer's ISDEAA or IHCIA contract, the tribal employer may 
purchase FEHB for one or more billing units without regard to whether 
they are carrying out programs or activities under the tribal 
employer's ISDEAA or IHCIA contract.
    (b) A tribal employer must enter into an agreement with OPM to 
purchase FEHB. This agreement will include:
    (1) The name, job title, and contact information of the individual 
responsible for health insurance coverage decisions for the tribal 
employer,
    (2) The date on which the tribal employer will begin to purchase 
FEHB coverage,
    (3) The approximate number of tribal employees who will be eligible 
to enroll,
    (4) A certification that the eligible tribal employees within the 
enrolling billing unit will not have alternate tribal employer-
sponsored health insurance coverage available concurrent with FEHB,
    (5) A certification and documentation demonstrating that the tribal 
employer is entitled to purchase FEHB as either: An Indian tribe or 
tribal organization carrying out at least one program under the Indian 
Self-Determination and Education Assistance Act; or an urban Indian 
organization carrying out at least one program under Title V of the 
Indian Health Care Improvement Act,
    (6) Agreement by the tribal employer that its purchase of FEHB 
makes the tribal employer responsible for administering the program in 
accordance with this subpart, subject to Federal Government audit with 
respect to such purchase and administration, and subject to OPM 
authority to direct the administration of the program, including but 
not limited to the correction of errors,
    (7) Agreement that the tribal employer will establish or identify 
an independent dispute resolution panel to adjudicate appeals of 
determinations

[[Page 59916]]

made by a tribal employer regarding an individual's status as a tribal 
employee eligible to enroll in FEHB, eligibility of family members, and 
eligibility to change enrollment. This panel must have authority to 
enforce eligibility decisions,
    (8) A certification that the tribal employer will supply necessary 
enrollment information and payment to the paymaster,
    (9) Agreement to provide notice to OPM in the event that the tribal 
employer is no longer carrying out at least one program under the 
ISDEAA or title V of IHCIA, and
    (10) Other terms and conditions as appropriate.
    (c) A tribal employer may make an initial election to purchase FEHB 
at any time. A tribal employer purchasing FEHB shall commit to purchase 
FEHB for at least the remainder of the calendar year in which the 
agreement is signed. Elections will be automatically renewable year to 
year unless revoked by the tribal employer or terminated by OPM.
    (d) If a tribal employer revokes the initial election, OPM must be 
given 60 days notice. The tribal employer may not re-elect to purchase 
FEHB until the first annual open season that falls at least twelve 
months after the revocation. If the tribal employer revokes an election 
to participate a second time, the tribal employer may not re-elect to 
purchase FEHB until the first open season that falls at least twenty-
four months after the second revocation.
    (e) OPM maintains final authority, in consultation with the United 
States Department of the Interior and the United States Department of 
Health and Human Services,to determine whether a tribal employer is 
entitled to purchase FEHB as either:
    (1) An Indian tribe or tribal organization carrying out at least 
one program under the Indian Self-Determination and Education 
Assistance Act; or
    (2) An urban Indian organization carrying out at least one program 
under Title V of the Indian Health Care Improvement Act. If a tribe, 
tribal organization or urban Indian organization believes it has been 
improperly denied the entitlement to purchase FEHB, it may appeal the 
denial to OPM. The appeal will be given an independent level of review 
within OPM and the decision on review will be final.


Sec.  890.1405  Tribal employees eligible for enrollment.

    (a)(1) A tribal employee who is a full-time or part-time common law 
employee of a tribal employer is eligible to enroll in FEHB if that 
tribal employer has elected to purchase FEHB coverage for the tribal 
employees of that tribal employer's billing unit, except that a tribal 
employee described in paragraph (b) of this section is not eligible to 
enroll in FEHB.
    (2) Status as a tribal employee under Sec.  890.1402(a) for 
purposes of eligibility to enroll in FEHB is initially made based on a 
reasonable determination by the tribal employer. OPM maintains final 
authority to correct errors regarding FEHB enrollment as set forth at 
Sec.  890.1406.
    (3) Retirees, annuitants, volunteers, compensationers under Federal 
worker's disability programs past 365 days, and others who are not 
common law employees of the tribal employer are not eligible to enroll 
under this subpart.
    (b) The following tribal employees are not eligible to enroll in 
FEHB:
    (1) A tribal employee whose employment is limited to one year or 
less and who has not completed one year of continuous employment, 
including any break in service of 5 days or less;
    (2) A tribal employee who is expected to work less than 6 months in 
one year;
    (3) An intermittent tribal employee--a non-full-time tribal 
employee without a prearranged regular tour of duty;
    (4) A beneficiary or patient employee in a Government or tribal 
hospital or home; and
    (5) A tribal employee paid on a piecework basis, except one whose 
work schedule provides for full-time service or part-time service with 
a regular tour of duty.
    (c) Notwithstanding paragraphs (b)(1), (2), and (3) of this section 
a tribal employee working on a temporary appointment, a tribal employee 
working on a seasonal schedule of less than 6 months in a year, or a 
tribal employee working on an intermittent schedule, for whom the 
tribal employer expects the total hours in pay status (including 
overtime hours) plus qualifying leave without pay hours to be at least 
130 hours per calendar month, is eligible to enroll in FEHB according 
to terms described in Sec.  890.102(j) unless the tribal employer 
provides written notification to the Director as described in Sec.  
890.102(k).
    (d) The tribal employer initially determines eligibility of a 
tribal employee to enroll in FEHB, eligibility of family members, and 
eligibility of tribal employee to change enrollment. The tribal 
employer's initial decision may be appealed pursuant to Sec.  890.1415.
    (e) A tribal employee who is eligible and enrolls in FEHB under 
this subpart will have the option of enrolling in any FEHB open fee-
for-service plan or health maintenance organization (HMO), consumer 
driven health plan (CDHP), or high deductible health plan (HDHP) 
available to Federal employees in the same geographic location as the 
tribal employee. The tribal employee will have the same choice of self 
only, self plus one, or self and family enrollment as is available to 
Federal employees.
    (f) Family members of tribal employees will be covered by FEHB 
according to terms described at Sec.  890.302. Children of tribal 
employees, whether married or not married, and whether or not 
dependent, are covered under a self and family enrollment or a self 
plus one enrollment (if the child is the designated covered family 
member) up to the age of 26. Former spouses of tribal employees are not 
former spouses as described at 5 U.S.C. 8901(10) and are not eligible 
to elect coverage under subpart H.
    (g) Eligibility for FEHB under this subpart does not identify an 
individual as a Federal employee for any purpose, nor does it convey 
any additional rights or privileges of Federal employment.


Sec.  890.1406  Correction of enrollment errors.

    Correction of errors regarding FEHB enrollment for tribal employees 
takes place according to the terms described in Sec.  890.103.


Sec.  890.1407  Enrollment process; effective dates.

    (a) FEHB election for tribal employers. Tribal employers may 
purchase FEHB coverage for their tribal employees after an agreement is 
accepted by OPM. Tribal employers will not be permitted to access FEHB 
if the tribal employer contributes toward an alternative employer-
sponsored health insurance plan for tribal employees within the billing 
unit(s) for which the employer seeks to purchase FEHB coverage, with 
the exception of a collectively bargained alternative plan. A stand-
alone dental, vision, or disability plan is not considered alternative 
health insurance.
    (b) Opportunities for tribal employees to enroll. (1) Upon electing 
to purchase FEHB, a tribal employer will establish an initial 
enrollment opportunity for tribal employees. A tribal employee's 
enrollment upon an initial enrollment opportunity becomes effective as 
prescribed by OPM.
    (2) After the initial enrollment opportunity, described in Sec.  
890.1407(b)(1), tribal employees are subject to the same initial 
enrollment

[[Page 59917]]

period, belated enrollment rules, enrollment by proxy, and open season 
as Federal employees, as described at Sec.  890.301(a),(b),(c), and 
(f).
    (3) A tribal employee who enrolls after the initial enrollment 
opportunity and who does not elect premium conversion through his or 
her tribal employer's premium conversion plan, if one is available, 
will be subject to the enrollment and qualifying life event rules 
described at Sec.  890.301 and effective dates described at Sec.  
890.301(b) and (f).
    (4) A tribal employee who enrolls after the initial enrollment 
opportunity and who elects premium conversion through his or her tribal 
employer's premium conversion plan, if one is available, will be 
subject to the enrollment rules, qualifying life event rules and 
effective dates described at Sec. Sec.  892.207, 892.208 and 892.210 of 
this chapter (together with Sec.  890.301 as referenced therein).


Sec.  890.1408  Change in enrollment type, plan, or option.

    (a) A tribal employee enrolled under this subpart may increase or 
decrease his or her enrollment, or may change enrollment from one plan 
or option to another, as described in Sec.  890.301 (for tribal 
employees who did not elect premium conversion) or Part 892 (for tribal 
employees who did elect premium conversion).
    (b) A change in enrollment type, plan, or option under this section 
becomes effective as described in Sec.  890.301 (for tribal employees 
who did not elect premium conversion) or Part 892 (for tribal employees 
who did elect premium conversion).


Sec.  890.1409  Cancellation of coverage or decreases in enrollment.

    (a) A tribal employee enrolled under this subpart may cancel 
enrollment as described at Sec.  890.304(d) or decrease his or her 
enrollment as described at Sec.  890.301. A tribal employee who does 
not participate in premium conversion may cancel his or her enrollment 
or decrease his or her enrollment at any time by request to the tribal 
employer, unless there is a legally binding court or administrative 
order requiring coverage of a child as described at Sec.  
890.301(g)(3). A tribal employee who participates in premium conversion 
may cancel his or her enrollment as provided by Sec.  892.209 or 
decrease his or her enrollment as provided by Sec.  892.208 of this 
chapter only during open season or because of and consistent with a 
qualifying life event.
    (b) A cancellation of enrollment becomes effective as described at 
Sec.  890.304(d). A decrease in enrollment becomes effective as 
described in Sec.  890.301(e)(2).
    (c) A tribal employee who cancels his or her enrollment under this 
section or decreases his or her enrollment may reenroll or increase his 
or her enrollment only during open season or because of and consistent 
with a qualifying life event.


Sec.  890.1410  Termination of enrollment and 31-day temporary 
extension of coverage; and conversion to individual policy.

    (a) Tribal Employee Separation. (1) Enrollment of a tribal employee 
under this subpart terminates due to separation from employment with 
the tribal employer for reasons of resignation, dismissal, or 
retirement. Termination of enrollment is effective at midnight of the 
last day of the pay period in which the tribal employee separates from 
employment.
    (2) A former tribal employee who is separated under this subpart 
due to resignation, dismissal, or retirement and covered family members 
are entitled to a 31-day temporary extension of coverage without 
premium contribution and may convert to an individual policy as 
described at Sec.  890.401.
    (b) Death of tribal employee. (1) Enrollment of a tribal employee 
terminates at midnight of the last day of the pay period in which the 
tribal employee dies.
    (2) If, at the time of death, the deceased tribal employee was 
enrolled in self and family FEHB coverage:
    (i) The surviving spouse is entitled to a 31-day temporary 
extension of coverage without premium contribution and may convert to 
an individual policy as described at Sec.  890.401;
    (ii) The covered children of the deceased tribal employee are 
entitled to a 31-day temporary extension of coverage without premium 
contribution and may convert to an individual policy as described at 
Sec.  890.401.
    (3) If, at the time of death, the deceased tribal employee was 
enrolled in self plus one FEHB coverage, only the designated covered 
family member is entitled to a 31-day temporary extension of coverage 
without premium contribution and may convert to an individual policy as 
described at Sec.  890.401.
    (c) Termination of family member coverage. (1) Coverage of a family 
member of a tribal employee who was covered under this subpart 
terminates, subject to the 31-day temporary extension of coverage, for 
conversion, at midnight of the earlier of the following dates:
    (i) The day on which he or she ceases to be a family member; or
    (ii) The day the tribal employee's enrollment terminates, unless 
the family member is entitled to continued coverage under the 
enrollment of another.
    (2) Family members who lose coverage under this subsection are 
entitled to a 31-day temporary extension of coverage without premium 
contribution and may convert to an individual policy as described at 
Sec.  890.401.
    (d) Tribal employer loses entitlement to purchase FEHB. (1) 
Coverage of a tribal employee and family members under this subpart, 
except TCC that is already elected and in effect, terminates at 
midnight of the last day of the calendar year in which a tribal 
employer is no longer entitled to purchase FEHB. FEHB can terminate 
earlier at the request of the tribal employer.
    (2) Following the termination described in Sec.  890.1410(d)(1), 
enrolled tribal employees and covered family members are entitled to a 
31-day temporary extension of coverage without premium contribution and 
may convert to an individual policy as described at Sec.  890.401.
    (e) Tribal employer revokes election to purchase FEHB. If a tribal 
employer voluntarily revokes its election to purchase FEHB, tribal 
employees will be entitled to a 31-day temporary extension of coverage 
and may convert to an individual policy as described at Sec.  890.401. 
In such a case, the FEHB enrollment terminates effective the first day 
for which premium payment is not received and the 31-day temporary 
extension of coverage, for conversion begins immediately thereafter.
    (f) Failure to currently deposit payment. (1) If payment is not 
currently deposited in the Employees Health Benefits Fund, the tribal 
employer's entitlement to purchase FEHB can be terminated, and all 
enrollments affected by the paymaster's failure to obtain current 
deposit of payment will be terminated, for non-payment.
    (2) Enrollments of all of the tribal employer's tribal employees 
affected by the paymaster's failure to obtain current deposit of 
payment will be terminated effective midnight of the last day of the 
month for which payment was received.
    (3) In the case of termination of enrollment due to non-payment, 
affected tribal employees will be entitled to a 31-day temporary 
extension of coverage without premium contribution and may convert to 
an individual policy as described at Sec.  890.401. The 31-day 
extension of

[[Page 59918]]

coverage begins immediately upon termination of enrollment.
    (4) In the event that a tribal employer elects to purchase FEHB for 
its tribal employees but does not currently deposit payment in the 
first month that it is due, the enrollment of tribal employees affected 
by the paymaster's failure to obtain current deposit of payment will be 
terminated effective midnight of the last day of the month for which 
payment was not currently deposited. Tribal employees affected by the 
paymaster's failure to obtain current deposit of payment will not be 
entitled to a 31-day temporary extension of coverage and may not 
convert to an individual policy as described at Sec.  890.401.
    (5) Any outstanding premium due for coverage in arrears will be 
treated as a debt owed solely by the tribal employer.


Sec.  890.1411  Temporary Continuation of Coverage (TCC).

    (a) For purposes of this subpart, temporary continuation of 
coverage (TCC) is described by 5 U.S.C. 8905a and subpart K. The 
administrative fee for TCC for tribal employees is the same as for 
Federal employees, with no specific tribal administrative fee as 
described in Sec.  890.1413(e).
    (b) A former tribal employee who is separated under this subpart 
due to resignation, dismissal, or retirement may elect TCC, unless the 
separation is due to gross misconduct as defined in Sec.  890.1102.
    (c) Eligibility for TCC for tribal employees following procedures 
provided in Sec.  890.1103 of subpart K, except that former spouses of 
tribal employees are not eligible for TCC.


Sec.  890.1412  Non-pay status, insufficient pay, or change to 
ineligible position.

    (a) Non-pay status for 365 days. Enrollment of a tribal employee 
and coverage of family members may continue for up to 365 days during 
which the tribal employee is in a non-pay status (as described at Sec.  
890.303(e)(1)) under terms described at Sec.  890.502(b). Enrollment 
terminates at midnight of the last day of the pay period which includes 
the 365th consecutive day of nonpay status or the last day of leave 
under the Family and Medical Leave Act, whichever is later. The tribal 
employee and covered family members are entitled to a 31-day temporary 
extension of coverage without premium contribution and may convert to 
an individual policy as described at Sec.  890.401.
    (b) Insufficient Pay. If the pay of a non-temporary tribal employee 
who is enrolled in FEHB is insufficient to pay for the tribal 
employee's share of premiums, the tribal employer must follow the 
procedure described at Sec.  890.502(b). If the enrollment is 
terminated due to insufficient pay, the tribal employee and covered 
family members are entitled to a 31-day temporary extension of coverage 
without premium contribution and may convert to an individual policy as 
described at Sec.  890.401.
    (c) Insufficient Pay for temporary tribal employees. If the pay of 
a temporary tribal employee who meets eligibility requirements 
described at 5 U.S.C. 8906a is insufficient to pay the tribal 
employee's share of premiums as described at Sec.  890.304(a)(2), and 
the tribal employee does not or cannot elect a plan at a cost to him or 
her not in excess of the pay, the tribal employee's enrollment must be 
terminated as described at Sec.  890.304(a)(2). The tribal employee and 
covered family members are entitled to a 31-day temporary extension of 
coverage without premium contribution and may convert to an individual 
policy as described at Sec.  890.401.
    (d) Change to ineligible position. A tribal employee who moves from 
an FEHB eligible to a non-FEHB-eligible position at a tribal employer 
will be eligible to continue FEHB enrollment as described in Sec.  
890.303(b).
    (e) Non-pay status due to Uniformed Service. (1) Enrollment of a 
tribal employee and coverage of family members terminates at midnight 
of the earliest of the dates described at Sec.  890.304(a)(1)(vi)-
(viii). The tribal employee and covered family members are entitled to 
a 31-day temporary extension of coverage without premium contribution 
and may convert to an individual policy as described at Sec.  890.401.
    (2) Enrollment is reinstated on the date the tribal employee is 
restored to duty in an eligible position with the tribal employer upon 
return from Uniformed Service, pursuant to applicable law, provided 
that the tribal employer continues to purchase FEHB for its tribal 
employees in the affected tribal employee's billing unit on that date.


Sec.  890.1413  Premiums and administrative fee.

    (a) Premium contributions and withholdings described at Sec. Sec.  
890.501 and 890.502 must be paid by the tribal employer and the tribal 
employee, except that the term OPM as used in Sec.  890.502(c) is 
deemed to be a reference to the paymaster, as appropriate, for purposes 
of this subpart. There is no Government contribution as that term is 
used in 5 U.S.C 8906.
    (b) Contribution requirements. (1)A tribal employer must contribute 
at least the monthly equivalent of the minimum Government contribution 
for a specific FEHB plan as described in 5 U.S.C. 8906;
    (2) There is no cap on the percentage of premium that a tribal 
employer may contribute, as long as the contribution and withholding 
arrangement is not designed to encourage or discourage enrollment in 
any particular plan or plan option;
    (3) A tribal employer may vary the contribution amount by type of 
FEHB enrollment (self only, self plus one, self and family), providing 
it is done in a uniform manner and meets the requirements described in 
Sec.  890.1413(b)(1) and (2); and
    (4) A tribal employer may vary the contribution amount by billing 
unit, providing each billing unit meets the requirements described in 
Sec.  890.1413(b)(1)-(3).
    (c) A tribal employer may, but is not required to, prorate the 
tribal employer and tribal employee share of premium attributable to 
enrollment of its part-time tribal employees working between 16 and 32 
hours per week by prorating shares in proportion to the percentage of 
time that a tribal employee in a comparable full time position is 
regularly scheduled to work.
    (d) Tribal employee and tribal employer contributions to premiums 
under this subpart will be aggregated by the tribal employer. The 
tribal employee and tribal employer contributions must be available for 
receipt by the paymaster on an agreed upon date. The paymaster will 
receive the premium contributions together with the fee described at 
paragraph (e) of this section and will deposit the payment into the 
Employees Health Benefits Fund described in 5 U.S.C. 8909.
    (e) A fee determined annually by OPM will be charged in addition to 
premium for each enrollment of a tribal employee. The fee may be used 
for other purposes as determined by OPM. The fee must be paid entirely 
by the tribal employer as part of the payment to purchase FEHB for 
tribal employees, and must be available for collection by the 
paymaster, together with the aggregate tribal employee and tribal 
employer contributions, in time to be currently deposited into the 
Employees Health Benefits Fund described in 5 U.S.C. 8909.

[[Page 59919]]

Sec.  890.1414  Responsibilities of the tribal employer.

    (a) The tribal employer pays premiums for tribal employees enrolled 
under this subpart pursuant to Sec. Sec.  890.1403 and 890.1413.
    (b) The tribal employer must determine the eligibility of 
individuals who attempt to enroll for coverage under this subpart and 
enroll those it finds eligible.
    (c) The tribal employer must determine whether eligible tribal 
employees have eligible family member(s) and allow coverage under a 
self plus one or self and family enrollment as described in Sec.  
890.302 for those it finds eligible.
    (d) The tribal employer must establish or identify an independent 
dispute resolution panel for reconsideration of enrollment and 
eligibility decisions as described in Sec.  890.1415.
    (e) The tribal employer has the following notification 
responsibilities. The tribal employer must:
    (1) Notify OPM and tribal employees in writing of intent to revoke 
election to purchase FEHB at least 60 days before such revocation 
described at Sec.  890.1404(d);
    (2) Promptly notify tribal employees and OPM if there is a change 
in the tribal employer's entitlement to purchase FEHB described at 
Sec.  890.1410(d);
    (3) Promptly notify affected tribal employees of termination of 
enrollment due to non-payment, the 31-day temporary extension of 
coverage and its ending date described at Sec.  890.1410(f)(2)-(3); and
    (4) Promptly notify affected tribal employees of termination of 
enrollment due to non-payment described at Sec.  890.1410(f)(4).


Sec.  890.1415  Reconsideration of enrollment and eligibility decisions 
and appeal rights.

    (a) The tribal employer shall establish or identify an independent 
dispute resolution panel to adjudicate appeals of determinations made 
by a tribal employer denying an individual's status as a tribal 
employee eligible to enroll in FEHB or denying a change in the type of 
enrollment (i.e., to or from self only coverage) under this subpart. 
Such panel shall be authorized to enforce enrollment and eligibility 
decisions. The tribal employer shall notify affected individuals of 
this panel and its functions.
    (b) Under procedures set forth by the tribal employer, an 
individual may file a written request to the independent dispute 
resolution panel to reconsider an initial decision of the tribal 
employer under this subpart. A reconsideration decision made by the 
panel must be issued to the individual in writing and must fully state 
the findings and reasons for the findings. The panel may consider 
information from the tribal employer, the individual, or another 
source. The panel must retain a file of its documentation until 
December 31 of the 3rd year after the year in which the decision was 
made, and must provide the file to OPM upon request.
    (c) If the panel determines that the individual is ineligible to 
enroll in FEHB as a tribal employee or to change enrollment, the 
individual may request that OPM reconsider the denial. Such a request 
must be made in writing and any decision by OPM will be binding on the 
tribal employer.
    (d) OPM may request a panel decision file during the retention 
period described at paragraph (b) of this section. Panel decisions 
remain subject to final OPM authority to correct errors, as set forth 
in Sec.  890.1406.


Sec.  890.1416  Filing claims for payment or service and court review.

    (a) Tribal employees may file claims for payment or service as 
described at Sec.  890.105.
    (b) Tribal employees may invoke the provisions for court review 
described at Sec.  890.107(b)-(d).


Sec.  890.1417  No continuation of FEHB enrollment into retirement from 
employment with a tribal employer.

    (a) An FEHB enrollment cannot be continued into retirement from 
employment with a tribal employer.
    (b) A Federal annuitant may continue FEHB enrollment into 
retirement from Federal service if the requirements of 5 U.S.C. 8905(b) 
for carrying FEHB coverage into retirement are satisfied through 
enrollment, or coverage as a family member, either through a Federal 
employing office or a tribal employer, or any combination thereof.
    (c) A Federal annuitant who is employed after retirement by a 
tribal employer in an FEHB eligible position may participate in FEHB 
through the tribal employer. In such a case, the Federal annuitant's 
retirement system will transfer the FEHB enrollment to the tribal 
employer, in a similar manner as for a Federal annuitant who is 
employed by a Federal agency after retirement.
    (d) A tribal employee who becomes a survivor annuitant as described 
in 890.303(d)(2) is entitled to reinstatement of health benefits 
coverage as a Federal employee would under the same circumstances.


Sec.  890.1418  No continuation of FEHB enrollment in compensationer 
status past 365 days.

    A tribal employee who is not also a Federal employee who becomes 
eligible for one of the Department of Labor's disability compensation 
programs may not continue FEHB coverage in leave without pay status 
past 365 days.

[FR Doc. 2016-20566 Filed 8-30-16; 8:45 am]
 BILLING CODE 6325-63-P