[Federal Register Volume 81, Number 249 (Wednesday, December 28, 2016)]
[Rules and Regulations]
[Pages 95397-95410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31195]



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Rules and Regulations
                                                Federal Register
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to and codified in the Code of Federal Regulations, which is published 
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Federal Register / Vol. 81, No. 249 / Wednesday, December 28, 2016 / 
Rules and Regulations

[[Page 95397]]



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: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: This final rule makes Federal employee health insurance 
accessible to employees of certain Indian tribal entities. Section 409 
of the Indian Health Care Improvement Act (codified at 25 U.S.C. 1647b) 
authorizes 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: The final rule is effective February 27, 2017.

FOR FURTHER INFORMATION CONTACT: Padma Shah, Senior Policy Analyst at 
(202) 606-0004.

SUPPLEMENTARY INFORMATION: 
    The Office of Personnel Management (OPM) is issuing a final rule to 
extend coverage, rights, and benefits under the Federal Employees 
Health Benefits (FEHB) Program to certain employees of certain Indian 
tribal employers.
    Section 10221 of the Patient Protection and Affordable Care Act 
(Pub. L. 111-148) incorporated, amended, and enacted the entire text of 
S. 1790 as reported on December 16, 2009 by the Senate Committee on 
Indian Affairs. Bill S. 1790 revised and extended the Indian Health 
Care Improvement Act (IHCIA), including adding a new section 409. Under 
IHCIA section 409, an Indian tribe or tribal organization carrying out 
programs under the Indian Self-Determination and Education Assistance 
Act (ISDEAA), or an urban Indian organization carrying out programs 
under title V of IHCIA, is entitled to purchase coverage, rights, and 
benefits under the FEHB Program for their employees.
    In 2011 and 2012, OPM consulted with tribal groups to develop sub-
regulatory guidance \1\ relating to IHCIA section 409. Tribal employers 
began purchasing FEHB coverage, rights, and benefits for their 
employees on March 22, 2012, with an insurance coverage effective date 
of May 1, 2012.
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    \1\ Available at https://www.opm.gov/healthcare-insurance/tribal-employers/reference-materials/.
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    On August 31, 2016, OPM issued a Notice of Proposed Rulemaking 
(NPRM) (81 FR 59907) codifying previously issued guidance to adopt the 
FEHB Program, as set forth in 5 U.S.C. chapter 89 and its implementing 
regulations, for employees of certain tribal employers with slight 
variations to meet the needs of the tribal population (the Tribal FEHB 
Program). OPM proposed to amend title 5 of the Code of Federal 
Regulations (CFR) part 890 to add new subpart N, setting forth the 
conditions for coverage, rights, and benefits under the FEHB Program 
for employees of certain Indian tribal employers. The proposed rule had 
a 60 day comment period during which OPM received 2 comments. This 
final rule adopts subpart N, as proposed, with one clarification as 
noted below.

Responses to Comments on the Proposed Rule

    OPM received comments from two tribal employers that have elected 
to participate in the FEHB Program.
    One commenter expressed concern about the lack of consultation with 
a specific tribal entity, on the same basis as Indian tribes under 
Executive Order No. 13175, prior to the publication of the NPRM.
    OPM has engaged in regular and meaningful consultation and 
collaboration with all tribal officials, including a representative 
from this specific tribal entity during the tribal consultative process 
in 2011 and 2012.
    OPM published a series of policy papers \2\ 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.
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    \2\ Available at https://www.opm.gov/healthcare-insurance/tribal-employers/hr-personnel/outreach-documents/outreach-documents-archive/.
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    A Tribal Technical Workgroup \3\ was established to support the 
implementation of the Tribal FEHB Program and was composed of tribal 
human resource representatives and OPM operational and policy staff. 
The primary purpose of the workgroup was to ensure system requirements 
for enrollment processing were completed according to the needs of 
tribal employers.
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    \3\ Available at https://www.opm.gov/healthcare-insurance/tribal-employers/hr-personnel/#url=Work-Group.
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    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 questions are answered by OPM staff 
who administer the program. 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 \4\ 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

[[Page 95398]]

and which will not. As a result, interest in FEHB enrollment has 
increased.
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    \4\ Available at https://www.opm.gov/healthcare-insurance/tribal-employers/hr-personnel/outreach-documents/tribal-leader-letter-2014.pdf.
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    OPM views its ongoing engagement with tribal employers, 
participating in the FEHB Program, as a form of consultation. OPM also 
considers the public comment period for the NPRM as an important 
consultation period. Upon publication of the NPRM, OPM sent an email 
message to all Tribal Benefits Officers alerting them of the 
publication of the proposed rule and the process for submitting formal 
comments. A DTLL will also be issued in tandem with the publication of 
this final rule. OPM will continue to provide assistance to tribal 
employers even after the final rule is in effect.
    OPM also believes that steady enrollment increases in the Tribal 
FEHB Program, with an average of about 25 percent per year since the 
first year, is another indicator suggesting that tribal employers and 
employees are satisfied with current policies, now codified in this 
final rule.
    A second commenter was generally pleased with the proposed rule, 
but made two recommendations. First, the commenter recommended that OPM 
reconsider the limitation at Sec.  890.1407(a) prohibiting tribal 
employers from accessing FEHB if the tribal employer contributes toward 
an alternative employer-sponsored health insurance plan (e.g., tribal 
self-insured coverage) for tribal employees within the billing unit(s) 
for which the employer seeks to purchase coverage, with the exception 
of a collectively bargained alternative plan. The commenter noted that, 
in certain instances, there may be limitations in FEHB plans related to 
network adequacy, cultural competency, contracting issues, or other 
health reasons. In order to keep tribal employees' plan options and 
participation rules aligned with those of Federal employees and 
maintain the stability of the FEHB risk pool, we decline to adopt the 
commenter's first recommendation.
    A second recommendation by the commenter was a suggestion that OPM 
waive FEHB co-payments for tribal employees when they are served by 
health programs operated by the Indian Health Service (IHS), Indian 
tribes, tribal organizations, and urban Indian organizations (as those 
terms are defined in Sec.  1603 of the IHCIA). The commenter also 
requested OPM require FEHB plans pay the cost of co-payments if a 
tribal employee is furnished an item or service directly by the IHS, an 
Indian tribe, tribal organization, or urban Indian organization. To 
support its recommendations, the commenter references Sec.  1402(d) of 
the Patient Protection and Affordable Care Act. However, this provision 
relates to individual coverage in the health insurance exchanges and 
not employer-sponsored insurance such as FEHB. Therefore, the 
regulatory text has not been changed.

Changes From the Proposed Rule

    OPM is clarifying that different portions of a tribal employer's 
payment are credited in different ways. One portion of a tribal 
employer's payment consists of the premium payment, i.e., the sum of 
the tribal employer's share of premium plus the tribal employees' share 
of premium due for the enrollment, in the aggregate, of the tribal 
employer's tribal employees. A second portion of the tribal employer's 
payment consists of the administrative fee. OPM clarifies that only the 
premium payment is deposited to the Employees Health Benefits Fund. 
Accordingly, OPM has revised Sec. Sec.  890.1403, 890.1410(f), and 
890.1413(d) and (e).
    OPM is also revising Sec.  890.1407 to express existing policy more 
clearly: A tribal employer may neither contribute towards, nor offer, 
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.
    OPM is also making a technical correction to Sec.  890.1404 by 
moving language appearing previously in subparagraph (e)(2) to new 
paragraph (f).
    Finally, OPM is correcting a typographical error at Sec.  
890.1411(c) by changing the term ``following'' to ``follows.''

Provisions of the Final Rule

    This final rule establishes how FEHB enrollment under the Tribal 
FEHB Program will be administered, including eligibility, tribal 
employer and tribal employee contribution to premiums, the process by 
which tribal employers will access the program, the process by which 
tribal employees will elect coverage, and circumstances for termination 
and cancellation of enrollment. 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 established a 
procedure.

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.
    This final rule refers to tribes, tribal organizations, and urban 
Indian organizations that are entitled to access insurance under IHCIA 
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.'' \5\
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    \5\ The Department of Labor has advised that a tribal employer 
entitled under IHCIA section 409 to purchase coverage, rights, and 
benefits under the FEHB Program for its employees does not 
``establish or maintain'' an employee welfare benefit plan subject 
to title I of the Employee Retirement Income Security Act (ERISA) as 
a result of such a purchase in a manner consistent with the FEHB 
statute and this final rule. The Department of Labor has also 
advised that the enrollment of tribal employees in FEHB coverage 
pursuant to such a purchase 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 and the Internal Revenue Service have advised that such 
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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    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.

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

[[Page 95399]]

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 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) 
that generally provide 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 \6\ 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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    \6\ See Rev. Rul. 87-41, 1987-1 C.B. 296 and reference 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 cases in which a tribal employer 
has determined that a worker is not a common law employee for purposes 
of establishing a Federal employment tax obligation, and the tribal 
employer meets all the requirements for relief from Federal employment 
taxes under Sec.  530 of the Revenue Act of 1978 with respect to such 
worker. Under these circumstances, as long as the tribal employer 
continues to meet the requirements for such relief, OPM will defer to 
the tribal employer's reasonable determination that its worker is not a 
common law employee for purposes of eligibility to enroll in FEHB.
    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

[[Page 95400]]

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 premium payments are currently deposited in the 
Employees Health Benefits Fund, as required by the authorizing statute, 
and if it timely pays administrative fees. This section provides that a 
premium payment will be considered ``currently deposited'' if it is 
received by the Employees Health Benefits Fund before, during, or 
within fourteen days after the end of the calendar month covered by the 
premium payment. Likewise, an administrative fee will be considered 
``timely paid'' if it is received before, during, or within fourteen 
days after the end of the calendar month covered by the administrative 
fee.
    Section 890.1413 describes how payments 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 Sec.  
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 percent for all tribal employees in self only or 
self plus one enrollments and 90 percent 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 the following:
    (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 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(e) states 
that OPM maintains final authority to determine entitlement of a tribal 
employer to purchase FEHB. Section 890.1404(f) states that if a tribe, 
tribal organization or urban Indian organization believes it has been 
improperly denied the entitlement to

[[Page 95401]]

purchase FEHB, it may appeal the denial to OPM.
    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, 
or offer, 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. A tribal employee 
may have other comprehensive health care insurance coverage, as long as 
it is not provided by or purchased through the tribal employer.

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 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 and up 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. The 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 for 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

    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

[[Page 95402]]

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 3 days. If there has been a break 
in service of longer than 3 days, FEHB enrollment will terminate at 
midnight of 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 ``5-year 
rule.'' The ``5-year rule'' generally requires 5 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 final 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

    Section 10221 of the Patient Protection and Affordable Care Act 
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 of the 
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. 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.\7\ Although section 409 
extends FEHB to

[[Page 95403]]

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 (Sec.  1601). Thus, the 
following section discusses the benefits of extending health insurance 
to tribal members, rather than to tribal employees in general.
---------------------------------------------------------------------------

    \7\ 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.\8\ 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 percent had incomes below 400 percent and 60 
percent had incomes below 138 percent 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 Americans 
was two and a half times the national rate.\9\
---------------------------------------------------------------------------

    \8\ Kaiser Family Foundation, ``Health Coverage and Care for 
American Indians and Alaska Natives'', October 2013.
    \9\ Then Senator Barack Obama, Indian Health Care Improvement 
Act Amendments of 2007 Floor Speech, U.S. Senate, January 2008.
---------------------------------------------------------------------------

    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 percent of those needed to pay for 
coverage equivalent to that of Federal employees.\10\
---------------------------------------------------------------------------

    \10\ The Federal Employees Health Plan Disparity Index 
(hereinafter ``FDI'') is an index comparing 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) \11\ 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.\12\ 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.
---------------------------------------------------------------------------

    \11\ 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.
    \12\ ``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:
    1. Tribal employers;
    2. Tribal employees;
    3. The Tribal Insurance Processing System (TIPS--the system used by 
the current paymaster);
    4. OPM; and
    5. 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 then 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.\13\ A per member per month (cost per 
month for each covered individual) cost of approximately $413 was 
calculated.\14\
---------------------------------------------------------------------------

    \13\ This number does not include OPM's administrative costs to 
operate this program.
    \14\ 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 percent 
each year for the last 5 years, below increases in the commercial 
market. As enrollment increases, total spending on premium costs will 
increase. However, the administrative fee will most 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 final rule 
includes an administrative fee assessed on a per contract basis, paid 
by the tribal employer.\15\ OPM has contracted with a paymaster to 
develop and maintain TIPS, an online portal for the input of enrollment 
data and transmission to carriers.
---------------------------------------------------------------------------

    \15\ This is analogous with Federal agencies that cover the cost 
of program administration without an additional fee to employees.
---------------------------------------------------------------------------

    For fiscal year 2015, the administrative fee was $15.15 per

[[Page 95404]]

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.
    For fiscal year 2015, the largest number of employees enrolled for 
one tribal employer was just under 4,000 and the smallest tribal 
employers have just one employee enrolled.\16\ The majority of 
participating tribal employers had fewer than 150 employees enrolled, 
with a program-wide median of 71 enrolled employees.
---------------------------------------------------------------------------

    \16\ Based on September 2015 enrollment.
---------------------------------------------------------------------------

    The average cost per enrollment in the program, including the 
administrative fee, is estimated at approximately $10,172.\17\
---------------------------------------------------------------------------

    \17\ 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 
percent of the premium costs. The Federal government contribution is 
statutorily defined as the lesser of 72 percent of the weighted average 
of all premiums or 75 percent of the plan premium.\18\ This averages 
out to approximately 70 percent paid by the employer, program-wide.
---------------------------------------------------------------------------

    \18\ 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.
    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 \19\ 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.
---------------------------------------------------------------------------

    \19\ Does not include the Administrative Fee, which is covered 
by tribal employers.
---------------------------------------------------------------------------

    Other costs such as co-payments, 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 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 (FTE) in FY2012 through 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.

Regulatory Flexibility Act

    I certify that these regulations would not have a significant 
economic impact on a substantial number of small entities because they 
establish a voluntary program for certain Indian tribal employers.

Federalism

    We have examined this rule in accordance with Executive Order 
13132, Federalism, and have determined that this rule will not have any 
negative impact on the rights, roles, and responsibilities of State, 
local, or Tribal governments.

List of Subjects in 5 CFR Part 890

    Administrative practice and procedure, Government employees,

[[Page 95405]]

Health facilities, Health insurance, Health professions, Hostages, 
Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping 
requirements, Retirement.

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

    For the reasons set forth in the preamble, OPM amends 5 CFR part 
890 as follows:

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

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

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

0
2. Add 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 and timely payment of administrative fee.
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 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 the 
determination 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

[[Page 95406]]

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 premium payment and timely payment of administrative fee.

    (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 premium 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, and if the 
administrative fee is timely paid to the paymaster.
    (b) Premium 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 premium 
payment.
    (c) Administrative fee will be considered timely paid if received 
by the paymaster before, during, or within fourteen days after the end 
of the month covered by the administrative fee.
    (d) 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 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.
    (f) 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) 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.
    (b) 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.
    (c) 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.
    (d) The following tribal employees are not eligible to enroll in 
FEHB--

[[Page 95407]]

    (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.
    (e) Notwithstanding paragraphs (d)(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).
    (f) 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.
    (g) 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.
    (h) 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.
    (i) 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, or offers, 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 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 of this 
chapter (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 of this chapter (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.

[[Page 95408]]

    (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--
    (1) 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.
    (2) [Reserved]
    (f) Failure to currently deposit premium payment--
    (1) If premium 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 premium 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 
premium 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 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 premium 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 
premium payment will be terminated effective midnight of the last day 
of the month for which premium payment was not currently deposited. 
Tribal employees affected by the paymaster's failure to obtain current 
deposit of premium 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 of this 
part. 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 follows procedures 
provided in Sec.  890.1103 of subpart K of this part, 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

[[Page 95409]]

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) through (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) through (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 only the premium 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.


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) through 
(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

[[Page 95410]]

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) through (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 Sec.  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. 2016-31195 Filed 12-27-16; 8:45 am]
BILLING CODE 6325-63-P