[Federal Register Volume 81, Number 232 (Friday, December 2, 2016)]
[Rules and Regulations]
[Pages 86905-86906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28789]



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 Rules and Regulations
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  Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / 
Rules and Regulations  

[[Page 86905]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 890 and 894

RIN 3206-AN34


Federal Employees Health Benefits and Federal Employees Dental 
and Vision Insurance Programs' Coverage Exception for Children of Same-
Sex Domestic Partners

AGENCY: U.S. Office of Personnel Management.

ACTION: Interim final rule.

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

SUMMARY: This action amends the rule to create a regulatory exception 
that allows children of same-sex domestic partners living overseas to 
maintain their Federal Employees Health Benefits (FEHB) and Federal 
Employees Dental and Vision Program (FEDVIP) coverage until September 
30, 2018. Due to a recent Supreme Court decision, as of January 1, 
2016, coverage of children of same-sex domestic partners under the FEHB 
Program and FEDVIP will generally only be allowed if the couple is 
married, as discussed in Benefits Administration Letter (BAL) 15-207 
dated October 5, 2015. OPM recognizes there are additional requirements 
placed on overseas federal employees that may not apply to other 
civilian employees with duty stations in the United States making it 
difficult to travel to the United States to marry same-sex partners.

DATES: This rule is effective on December 2, 2016.

FOR FURTHER INFORMATION CONTACT: Michael W. Kaszynski, Senior Policy 
Analyst at [email protected] or (202) 606-0004. You may also 
submit comments using the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

SUPPLEMENTARY INFORMATION:

I. Background

    Effective January 1, 2014, the Office of Personnel Management (OPM) 
published the ``Federal Employees Health Benefits Program and Federal 
Employees Dental and Vision Insurance Program: Expanding Coverage of 
Children; Federal Flexible Benefits Plan: Pre-Tax Payment of Health 
Benefits Premiums: Conforming Amendments'' final rule (78 FR 64873) to 
extend FEHB and FEDVIP coverage to children of same-sex domestic 
partners of Federal employees and annuitants who would marry their 
partners but live in states that do not allow same-sex couples to 
marry. As the result of the June 26, 2015, Supreme Court Obergefell v. 
Hodges decision, all U.S. states now allow same-sex couples to marry. 
Accordingly, as of January 2016, coverage of an enrollee's 
stepchild(ren) is only allowed if the couple is married.

II. Discussion of Interim Rule

    This rule amends Sec. Sec.  890.302 and 894.101 of title 5, Code of 
Federal Regulations. The amendments will allow an employing agency to 
request, and for OPM to grant, a continued coverage exception for 
children of an employee's same-sex domestic partner living outside the 
United States. Any coverage under such an exception will not extend 
beyond September 30, 2018. The OPM recognizes there are additional 
requirements placed on overseas employees that may not apply to other 
civilian employees with duty stations in the United States making it 
difficult to travel to the United States to marry same-sex partners. 
Therefore, OPM is creating the authority to allow an exception for 
Federal employees in a domestic partnership and living outside of the 
United States. If requested by an enrollees' agency, coverage of 
children of same-sex domestic partners can be continued under self and 
family or self plus one enrollment in the FEHB and FEDVIP Programs. 
This continued coverage exception will be available to overseas 
employees until September 30, 2018.
    Under Section 553(b) of the Administrative Procedure Act (APA) (5 
U.S.C. 551, et seq.) a general notice of proposed rulemaking is 
required unless an agency, for good cause, finds that notice and public 
comment thereon are impracticable, unnecessary, or contrary to the 
public interest. In addition, the APA exempts interpretative rules from 
proposed rulemaking procedures. This rule continues benefit eligibility 
past January 1, 2016, for children of same-sex domestic partners of 
employees living abroad, which require OPM to amend current regulations 
in an expeditious manner. Therefore, OPM has concluded that delaying 
implementation of this rule due to a full notice and public comment 
period would be impracticable and contrary to the public interest since 
the time it would have taken to issue proposed and final rules would 
have significantly delayed the implementation of this important 
regulatory change. For the foregoing reasons, OPM asserts that good 
cause exists to implement this rule as an interim rule under the APA, 5 
U.S.C. 553(b) and accordingly, adopts this rule on that basis.

Regulatory Impact Analysis

    OPM has examined the impact of this rule as required by Executive 
Order 12866 (September 1993, Regulatory Planning and Review) 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). A regulatory impact 
analysis must be prepared for major rules with economically significant 
effects of $100 million or more in any one year. This rule is not 
considered a major rule because OPM estimates there are a relatively 
small number of overseas enrollments that will be affected. Premium 
cost increases for this regulatory change will not equal or exceed $100 
million.

Paperwork Reduction Act

    This document does not contain proposed information collection 
requirements subject to the Paperwork Reduction Act of 1995, Public Law 
104-13.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale

[[Page 86906]]

of the businesses, organizations, and governmental jurisdictions 
subject to regulation.'' To achieve this principle, agencies are 
required to solicit and consider flexible regulatory proposals and to 
explain the rationale for their actions to assure that such proposals 
are given serious consideration.'' I certify that these regulations 
will not have a significant economic impact on a substantial number of 
small entities because they will apply only to overseas Federal 
employees, annuitants and their former spouses who are in same-sex 
domestic partnerships and are not married.

List of Subjects

5 CFR Part 890

    Administrative practice and procedure, Government employees, Health 
facilities, Health insurance, Health professions, Hostages, Iraq, 
Kuwait, Lebanon, Military personnel, Reporting and recordkeeping 
requirements, Retirement.

5 CFR Part 894

    Administrative practice and procedure, Civil rights, Government 
employees, Individuals with disabilities, Intergovernmental relations.

Beth F. Cobert,
Acting Director, U.S. Office of Personnel Management.

    Accordingly, OPM is amending 5 CFR parts 890 and 894 as follows:

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

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

    Authority: 5 U.S.C. 8913; Sec. 890.301 also issued under sec. 
311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under 
section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also 
issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 
8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c 
and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-
513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under 
sections 11202(f), 11232(e), 11246(b) and (c) of Pub. L. 105-33, 111 
Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061; Pub. 
L. 111-148, as amended by Pub. L. 111-152.


0
2. In Sec.  890.302, revise paragraph (b)(2) to read as follows:


Sec.  890.302  Coverage of family members.

* * * * *
    (b)* * *
    (2) Meaning of stepchild. Except as provided in paragraph (b)(5) of 
this section, for purposes of this part, the term ``stepchild'' refers 
to the child of an enrollee's spouse or domestic partner and shall 
continue to refer to such child after the enrollee's divorce from the 
spouse, termination of the domestic partnership, or death of the spouse 
or domestic partner, so long as the child continues to live with the 
enrollee in a regular parent-child relationship. Coverage of children 
of domestic partners terminates on January 1, 2016, unless an agency 
requests, and OPM grants, the agency a continued coverage exception for 
enrollees living overseas. This continued coverage exception will be 
available to overseas employees and all coverage, under such an 
exception, will end on September 30, 2018.
* * * * *

PART 894--FEDERAL EMPLOYEES DENTAL AND VISION INSURANCE PROGRAM

0
3. The authority citation for part 894 continues to read as follows:

    Authority: 5 U.S.C. 8962; 5 U.S.C. 8992; subpart C also issued 
under sec. 1 of Pub. L. 110-279, 122 Stat. 2604.


0
4. In Sec.  894.101, the definition of ``Stepchild'' is revised to read 
as follows:


Sec.  894.101  Definitions.

* * * * *
    Stepchild means:
    (1) Except as provided in paragraph (2), the child of an enrollee's 
spouse or domestic partner and shall continue to refer to such child 
after the enrollee's divorce from the spouse, termination of the 
domestic partnership, or death of the spouse or domestic partner, so 
long as the child continues to live with the enrollee in a regular 
parent-child relationship.
    (2) The child of an enrollee and a domestic partner who otherwise 
meet the requirements of paragraphs (1) through (8) of the definition 
of Domestic partnership in this section, but live in a state that has 
authorized marriage by same-sex couples prior to the first day of Open 
Season, shall not be considered a stepchild who is the child of a 
domestic partner in the following plan year. The determination of 
whether a state's marriage laws render a child ineligible for coverage 
as a stepchild who is the child of a domestic partner shall be made 
once annually, based on the law of the state where the same-sex couple 
lives on the last day before Open Season begins for enrollment for the 
following year. A child's eligibility for coverage as a stepchild who 
is the child of a domestic partner in a particular plan year shall not 
be affected by a mid-year change to a state's marriage law or by the 
couple's relocation to a different state. For midyear enrollment 
changes involving the addition of a new stepchild, as defined by this 
regulation, outside of Open Season, the determination of whether a 
state's marriage laws render the child ineligible for coverage shall be 
made at the time the employee notifies the employing office of his or 
her desire to cover the child. Coverage of children of domestic 
partners terminates on January 1, 2016, unless an agency requests, and 
OPM grants, the agency a continued coverage exception for enrollees 
living overseas. Continued coverage exceptions will only be granted to 
children of domestic partners living overseas and all coverage 
exceptions will end on September 30, 2018.
* * * * *

[FR Doc. 2016-28789 Filed 12-1-16; 8:45 am]
 BILLING CODE 6325-63-P