[Federal Register Volume 86, Number 62 (Friday, April 2, 2021)]
[Rules and Regulations]
[Pages 17271-17274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05624]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
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  Federal Register / Vol. 86, No. 62 / Friday, April 2, 2021 / Rules 
and Regulations  

[[Page 17271]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 870, 875, 890, and 894

RIN 3206-AN99


Designation of Certain Services as Emergency Services Under the 
Antideficiency Act; Opportunities To Enroll and Change Enrollment in 
the FEHB Program During a Lapse in Appropriations; Continuation of 
Certain Insurance Benefits During a Lapse in Appropriations

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

SUMMARY: In this final rule, the Office of Personnel Management (OPM) 
is finalizing provisions to ensure the continuation of certain 
insurance benefits and services that could be impacted by a lapse in 
appropriations. First, this final rule implements section 1110 of the 
National Defense Authorization Act for Fiscal Year 2020 (FY20 NDAA), 
that designated certain Federal Employees Health Benefits (FEHB) 
Program and Federal Employees' Group Life Insurance (FEGLI) services as 
emergency services under the Antideficiency Act. Second, this rule also 
implements section 1110(c)(2) of FY20 NDAA that deems employees 
furloughed as a result of a lapse in appropriations to be in pay 
status, for purposes of enrolling or changing enrollment in the FEHB 
Program. Third, this final rule also ensures, pursuant to section 1111 
of the FY20 NDAA, continuation of coverage under the Federal Employees 
Dental and Vision Insurance Program (FEDVIP) and the Federal Long Term 
Care Insurance Program (FLTCIP) for enrollees who are furloughed or 
excepted from furlough and working without pay due to a lapse in 
appropriations, and provides that coverage may not be cancelled as a 
result of nonpayment of premiums or other periodic charges due to such 
a lapse. The rule also clarifies that upon the end of a lapse in 
appropriations, FEDVIP and FLTCIP premiums will be paid from back pay 
or may be paid back from a source other than backpay for FLTCIP 
enrollees who elected to make payments directly to the Carrier. This 
final rule adopts the proposed rule as published.

DATES: This rule is effective on April 2, 2021.

FOR FURTHER INFORMATION CONTACT: Julia Elam, Program Analyst, at (202) 
606-2128 or Padma Shah, Senior Policy Analyst, at (202) 606-2128.

SUPPLEMENTARY INFORMATION: On July 20, 2020, OPM published proposed 
regulations (85 FR 43743) to do the following during a furlough as a 
result of lapse of appropriations: designate FEHB and FEGLI services as 
emergency service under the Antideficiency Act; deem furloughed 
employees and employees excepted from furlough and working without pay 
as a result of a lapse in appropriations to be in a pay status for the 
purposes of enrolling or changing FEHB enrollment; ensure the 
continuation of FEDVIP and FLTCIP coverage. The rule amends 5 CFR parts 
870, 875, 890, and 894. OPM provided 30 days for the public to comment 
on the proposed rule. The comment period closed on August 19, 2020. OPM 
received 7 public comments and one informal comment.
    FEGLI is administered by OPM in accordance with Chapter 87 of Title 
5 of the U.S. Code and implementing regulations (title 5, part 87, and 
title 48, chapter 21 of the Code of Federal Regulations). The FEHB 
Program is administered by OPM in accordance with Title 5 Chapter 89, 
United States Code and implementing regulations (title 5, parts 890, 
892 and title 48, chapter 16). FEDVIP was created as a result of the 
enactment of the Federal Employee Dental and Vision Benefits 
Enhancement Act of 2004, Public Law 108-496, and certain TRICARE-
eligible individuals who are authorized under section 715 of the 
National Defense Authorization Act of Fiscal Year 2017, Public Law 114-
328, became eligible for FEDVIP. FLTCIP was created as a result of the 
enactment of the Long Term Care Security Act of 2000, Public Law 106-
265.

Response to Comments

    OPM received comments from three professional associations, one 
FEHB Carrier, and one carrier organization, as well as four comments 
that were outside the scope of this rule. In addition, we received 
feedback from a benefits administrator. All the commenters were 
supportive of the regulation's goal to continue FEDVIP and FLTCIP 
benefits during a lapse in appropriations and to designate certain 
FEGLI and FEHB services as emergency services. There was agreement that 
designating these as emergency services ensures the safety of Federal 
employees and provides a sense of stability while employees are 
furloughed. The commenters also supported that the rule ensures that 
furloughed employees and employees working without pay can continue to 
enroll and make enrollment changes in the FEHB Program.
    The professional organizations commented that lapses in 
appropriations cause significant financial uncertainty and strain on 
furloughed employees. The commenters stated the proposed rule would 
work to provide employees with security and peace of mind during the 
economic uncertainty surrounding a lapse in appropriations. They also 
stated that the regulation ensures furloughed employees' health needs 
are met, making them better equipped to return to work when 
appropriations are restored. OPM agrees that the regulation can have a 
positive impact on Federal employees who may be impacted by a lapse in 
appropriations.
    The FEHB Carrier also stated that maintaining health insurance 
benefits are a matter of human safety. The commenter also agreed with 
the rule ensuring that furloughed employees and employees working 
without pay as a result of a lapse in appropriations, can continue to 
enroll and update their enrollments in health insurance coverage during 
lapses in appropriations. The commenter stated that the rule will not 
have a negative impact on its FEHB line of business, since during the 
2018-2019 lapse in appropriations, it continued to process enrollments 
and enrollment changes. The commenter also supported the continuation 
of vision and dental benefits for employees during lapses in 
appropriations.

[[Page 17272]]

    The carrier organization indicated that the proposed rule was 
consistent with the FY20 NDAA, Public Law 116-92, and had been drafted 
in a manner that would improve program administration. OPM agrees that 
the regulation can improve program administration and believes it can 
assist in processing and continuing benefits during a lapse in 
appropriations.
    The benefits administrator provided feedback about back pay 
payments for missed FLTCIP and FEDVIP premiums and expressed concern 
about double deductions for FEDVIP premiums since, prior to this rule, 
the practice was for the Program Administrator to collect two missed 
premium payments each month until the previously unpaid premiums are 
caught up when employees returned to work and received pay upon the end 
of a lapse in appropriations. The commenter also stated that currently 
not all payroll providers can process past premiums for FEDVIP and 
FLTCIP from back pay when a lapse in appropriations ends. The commenter 
suggested that the rule allow unpaid FLTCIP premiums during a lapse in 
appropriations be paid by adjusting future deductions as was done 
during the most recent extended government shutdown. OPM declines to 
revise the regulation to allow for adjusting future deductions to make 
payments for premiums. Section 1111 of the FY20 NDAA directs that 
FLTCIP premiums be paid from back pay or may be paid back from a source 
other than backpay for FLTCIP enrollees who elected to make payments 
directly to the Carrier. Therefore, we are finalizing the regulatory 
text in 5 CFR 875.302(c)(1) as originally proposed, stating that if 
premium payments are made by Federal payroll or annuity deduction, or 
uniformed services retirement pay deduction, premiums will be paid to 
the Carrier from back pay made available as soon as practicable upon 
the end of such a lapse. OPM encourages payroll providers to make 
necessary systems change so that back pay can be used as payments for 
premiums missed during a lapse in appropriations.
    The benefits administrator also had concerns about FEDVIP premiums 
being paid to the Carrier from the enrollee's back pay since only one 
shared service center can process back payments. It suggested that the 
regulatory text also include that premiums can be paid from adjustments 
made to future deductions. It also commented that during the last 
shutdown the decision to pay back pay was not made until the end of the 
shutdown and asked how it will know whether to direct bill enrollees.
    OPM declines to adjust the regulatory text based on these comments. 
Section 1111 of the FY20 NDAA directs that FEDVIP premiums be paid from 
back pay. Therefore, we are finalizing the regulatory text in 5 CFR 
894.405(c) and 5 CFR 894.406(c) as originally proposed, stating that 
premiums will be paid to the Carrier from back pay made available as 
soon as practicable upon the end of such a lapse. We would like to 
clarify that enrollees who have been furloughed or excepted from 
furlough and working without pay will not be billed for services during 
a lapse in appropriations and coverage should continue. As explained in 
the proposed rule, assuming Congress appropriates back pay as 
authorized by 31 U.S.C. 1341(c)(2), FEDVIP premiums will be paid to the 
Carrier from the enrollee's back pay made available as soon as 
practicable upon the end of such a lapse. However, we would like to 
provide a technical correction to the preamble of the proposed rule. If 
Congress does not appropriate back pay, the Program Administrator may 
collect missed premiums by adjusting future deductions.
    OPM is issuing this final rule with no changes.

Expected Impact of the Final Rule

    OPM expects that the regulatory changes which designate certain 
FEHB Program and FEGLI services for purposes of section 1342 of Title 
31, United States Code, as services for emergencies involving the 
safety of human life or the protection of property Antideficiency Act, 
will have a positive effect on enrollees impacted by a lapse in 
appropriations. The updated FEHB regulations will allow Government 
agencies to continue to employ Federal officers and employees to 
perform services such as enrolling an individual in an FEHB plan or 
changing the enrollment of an individual enrolled in FEHB during a 
lapse in appropriations. The amended FEGLI regulations will assist 
FEGLI enrollees since it allows agencies to employ officers or 
employees to perform FEGLI services during a lapse in appropriations. 
These services include activities related to enrollment, changing 
enrollment, temporary extension of coverage and conversion, 
eligibility, certification of coverage, and matters relating to 
reemployed annuitants and survivor annuitants.
    OPM anticipates that the additional FEHB regulatory changes will 
assist employees who are furloughed or excepted from furlough who may 
want to enroll, or will assist enrollees who may experience a 
qualifying life event and may want to make enrollment changes. Under 
the rule as finalized, an employee, who is furloughed or excepted from 
furlough and working without pay as a result of a lapse in 
appropriations, is deemed to be in pay status, during the lapse, for 
purposes of enrolling and change enrollment in the FEHB Program. Prior 
to this regulation, such an employee might experience challenges with 
enrollment or enrollment changes since generally, an employee needs to 
be in pay status in order to enroll or change enrollment in the FEHB 
Program. In addition, prior to this rule FEHB services were not 
designated as emergency services and employees or officers performing 
those services might have not been allowed to perform those services 
during a lapse in appropriations.
    OPM expects these regulation changes for the continuation of FLTCIP 
and FEDVIP during a lapse in appropriations will ensure enrollees who 
are furloughed or excepted from furlough and working without pay to 
continue FLTCIP and FEDVIP coverage without having their coverage 
cancelled. Once the lapse in appropriations has ended, FLTCIP premiums 
will be paid from back pay or may be paid back from a source other than 
backpay (i.e. automatic bank withdrawal or direct bill) for FLTCIP 
enrollees who elected to make payments directly to the Carrier. FEDVIP 
premiums will be paid back from back pay once the lapse in 
appropriations has ended. OPM anticipates these changes to the 
regulation will ensure Carriers receive payments for missed premiums 
that occurred during a lapse in appropriations.

Regulatory Impact Analysis

    OPM has examined the impact of this rulemaking 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). 
A regulatory impact analysis must be prepared for major rules with 
economically significant effects of $100 million or more in any one 
year. This rulemaking is not a significant regulatory action under 
Executive Order 12866.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities.

[[Page 17273]]

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.

Civil Justice Reform

    This regulation meets the applicable standard set forth in 
Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local or 
tribal governments of more than $100 million annually. Thus, no written 
assessment of unfunded mandates is required.

Congressional Review Act

    The Congressional Review Act (5 U.S.C. 801 et seq.) requires rules 
(as defined in 5 U.S.C. 804) to be submitted to Congress before taking 
effect. OPM will submit to Congress and the Comptroller General of the 
United States a report regarding the issuance of this action before its 
effective date, as required by 5 U.S.C. 801. OMB's Office of 
Information and Regulatory Affairs has determined that this is not a 
``major rule'' as defined by the Congressional Review Act (5 U.S.C. 
804(2)).

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

    This regulatory action will not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects

5 CFR Part 870

    Administrative practice and procedure, Government employees, 
Hostages, Iraq, Kuwait, Lebanon, Life insurance, Retirement.

5 CFR Part 875

    Administrative practice and procedure, Employee benefit plans, 
Government contracts, Government employees, Health insurance, Military 
personnel, Organization and functions, Retirement.

5 CFR Part 890

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

5 CFR Part 894

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

Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.

    Accordingly, OPM amends title 5, Code of Federal Regulations parts 
870, 875, 890, and 894 as follows:

PART 870--FEDERAL EMPLOYEES' GROUP LIFE INSURANCE PROGRAM

0
1. The authority citation for part 870 is revised to read as follows:

    Authority: 5 U.S.C. 8716; Sec. 870.106 also issued under section 
1110(b) of Pub. L. 116-92, 133 Stat. 1198 (5 U.S.C. 8702 note); Sec. 
870.302(a)(3) also issued under sections 11202(f), 11232(e), and 
11246(b) and (c) of Pub. L. 105-33, 111 Stat. 251, section 7(e) of 
Pub. L. 105-274, 112 Stat. 2419, and section 145 of Pub. L. 106-522, 
114 Stat. 2472; Sec. 870.302(a)(3)(ii) also issued under section 153 
of Pub. L. 104-134, 110 Stat. 1321; Secs. 870.302(b)(8), 870.601(a), 
and 870.602(b) also issued under Pub. L. 110-279, 122 Stat. 2604 (2 
U.S.C. 2051); Subpart E also issued under 5 U.S.C. 8702(c); Sec. 
870.601(d)(3) also issued under 5 U.S.C. 8706(d); Sec. 870.510 also 
issued under section 1622(b) of Pub. L. 104-106, 110 Stat. 521 (36 
U.S.C. 5522); Sec. 870.703(e)(1) also issued under section 502 of 
Pub. L. 110-177, 121 Stat. 2542 (5 U.S.C. 8701 note); Sec. 870.705 
also issued under 5 U.S.C. 8714b(c) and 8714c(c); and Subpart J also 
issued under section 599C of Pub. L. 101-513, 104 Stat. 2064 (5 
U.S.C. 5561 note), as amended.

Subpart A--Administration and General Provisions

0
2. Add Sec.  870.106 to read as follows:


Sec.  870.106  Designation of FEGLI services as emergency services 
under the Antideficiency Act.

    (a) Any services by an officer or employee relating to benefits 
under this part, shall be deemed, for purposes of section 1342 of Title 
31, United States Code, as services for emergencies involving the 
safety of human life or the protection of property.
    (b) The designation of services as emergency services shall apply 
to any lapse in appropriations beginning on or after December 20, 2019, 
the date of enactment of Section 1110(d) of Public Law 116-92.

PART 875--FEDERAL LONG TERM CARE INSURANCE PROGRAM

0
3. The authority citation for part 875 is revised to reads as follows:

    Authority: 5 U.S.C. 9008; Pub. L. 116-92, 133 Stat. 1198 (5 
U.S.C. 8956 note).

Subpart C--Cost

0
4. Amend Sec.  875.302 by adding paragraph (c) to read as follows:


Sec.  875.302  What are the options for making premium payments?

* * * * *
    (c) Notwithstanding paragraph (b) of this section, if you are an 
enrollee who is furloughed or excepted from furlough and working 
without pay during a lapse in appropriations, your FLTCIP coverage will 
stay in effect through such a lapse. Your coverage may not be cancelled 
as a result of nonpayment of premiums or other periodic charges due 
during such lapse. Pursuant to the National Defense Authorization Act 
for Fiscal Year 2020, Public Law 116-92, such continuation of coverage 
during a lapse in appropriations applies to any contract for long term 
care insurance coverage under 5 U.S.C. chapter 90 entered into before, 
on, or after December 20, 2019.
    (1) If your premium payments are made by Federal payroll or annuity 
deduction, or uniformed services retirement pay deduction, premiums 
will be paid to the Carrier from back pay made available as soon as 
practicable upon the end of such a lapse. If your premium payments are 
made by pre-authorized debit or by direct billing, you have the option 
of continuing to pay premiums while you are furloughed or excepted from 
furlough and working without pay, or not making premium payments. If 
you opt not to make premium payments during this period, you will be 
contacted by the Carrier regarding premiums due and must pay premiums 
to the Carrier as soon as practicable upon the end of the lapse.
    (2) Upon the end of a lapse in appropriations, premiums will be 
required from all impacted enrollees in accordance with enrollees' 
method of payment, as described in paragraph (c)(1) of this section. If 
you do not pay the required premiums as soon as practicable upon the 
end of the lapse when due, your coverage will terminate pursuant to 
Sec.  875.412.

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

0
5. The authority citation for part 890 is revised to read as follows:


[[Page 17274]]


    Authority: 5 U.S.C. 8913; Sec. 890.102 also issued under 
sections 11202(f), 11232(e), and 11246 (b) of Pub. L. 105- 33, 111 
Stat. 251; Sec. 890.111 also issued under section 1622(b) of Pub. L. 
104-106, 110 Stat. 521 (36 U.S.C. 5522); Sec. 890.112 also issued 
under section 1 of Pub. L. 110-279, 122 Stat. 2604 (2 U.S.C. 2051); 
Sec. 890.113 also issued under section 1110 of Pub. L. 116-92, 133 
Stat. 1198 (5 U.S.C. 8702 note); Sec. 890.301 also issued under 
section 311 of Pub. L. 111-3, 123 Stat. 64 (26 U.S.C. 9801); Sec. 
890.302(b) also issued under section 1001 of Pub. L. 111-148, 124 
Stat. 119, as amended by Pub. L. 111-152, 124 Stat. 1029 (42 U.S.C. 
300gg-14); Sec. 890.803 also issued under 50 U.S.C. 3516 (formerly 
50 U.S.C. 403p) and 22 U.S.C. 4069c and 4069c-1; subpart L also 
issued under section 599C of Pub. L. 101-513, 104 Stat. 2064 (5 
U.S.C. 5561 note), as amended; and subpart M also issued under 
section 721 of Pub. L. 105-261 (10 U.S.C. 1108), 112 Stat. 2061.

Subpart A--Administration and General Provisions

0
6. Add Sec.  890.113 to read as follows:


Sec.  890.113  Designation of FEHB Program services as emergency 
services under the Antideficiency Act.

    (a) Any services by an officer or employee under this part and part 
892 of this chapter relating to the enrollment of an individual in a 
health benefits plan under this chapter, or changing the enrollment of 
an individual already so enrolled, shall be deemed, for purposes of 
section 1342 of Title 31, United States Code, as services for 
emergencies involving the safety of human life or the protection of 
property.
    (b) The designation of services as emergency services shall apply 
to any lapse in appropriations beginning on or after December 20, 2019, 
the date of enactment of Section 1110(d) of Public Law 116-92.

Subpart C--Enrollment

0
7. Amend Sec.  890.301 by revising the section heading and adding a 
heading for paragraph (n) and paragraph (o) to read as follows:


Sec.  890.301  Opportunities for employees to enroll or change 
enrollment; effective dates.

* * * * *
    (n) Determination of lowest-cost nationwide plan option. * * *
    (o) Pay status during a lapse in appropriations. An employee, who 
is furloughed or excepted from furlough and working without pay as a 
result of a lapse in appropriations, is deemed to be in pay status, 
during the lapse, for purposes of this section.

PART 894--FEDERAL EMPLOYEES DENTAL AND VISION INSURANCE PROGRAM

0
8. The authority citation for part 894 is revised to read as follows:

    Authority: 5 U.S.C. 8962; 5 U.S.C. 8992; Subpart C also issued 
under section 1 of Pub. L. 110-279, 122 Stat. 2604 (2 U.S.C. 2051); 
and Sec. 894.601(b) also issued under Pub. L. 116-92, 133 Stat. 1198 
(5 U.S.C. 8956 note).

Subpart D--Cost of Coverage

0
9. Amend Sec.  894.405 by adding paragraph (c) to read as follows:


Sec.  894.405  What happens if I go into nonpay status or if my pay/
annuity is insufficient to cover the allotments?

* * * * *
    (c) If you are a FEDVIP enrollee, who due to a lapse in 
appropriations is furloughed or excepted from furlough and working 
without pay due to such a lapse, your FEDVIP coverage will not stop 
during such a lapse. Upon the end of such a lapse, premiums will be 
paid to the Carrier from back pay made available as soon as practicable 
upon the end of such a lapse.

0
10. Amend Sec.  894.406 by adding paragraph (c) to read as follows:


Sec.  894.406   What happens if my uniformed services pay or uniformed 
services retirement pay is insufficient to cover my FEDVIP premiums, or 
I go into a nonpay status?

* * * * *
    (c) If you are a FEDVIP enrollee who is furloughed or excepted from 
furlough and working without pay due to such a lapse, your coverage 
will not stop during such a lapse. Upon the end of such a lapse, 
premiums will be paid to the Carrier using back pay.

Subpart F--Termination or Cancellation of Coverage

0
11. Amend Sec.  894.601 by revising paragraph (b) to read as follows:


Sec.  894.601  When does my FEDVIP coverage stop?

* * * * *
    (b) If you go into a period of nonpay or insufficient pay (or 
insufficient uniformed services pay or uniformed services retirement 
pay) and you do not make direct premium payments, your FEDVIP coverage 
stops at the end of the pay period for which your agency, retirement 
system, OWCP, uniformed services or uniformed services retirement 
system last deducted your premium payment. Exception: If you are an 
enrollee who is furloughed or excepted from furlough and working 
without pay during a lapse in appropriations, your FEDVIP coverage will 
not stop, and your enrollment may not be cancelled as a result of 
nonpayment of premiums or other periodic charges due. Pursuant to the 
National Defense Authorization Act for Fiscal Year 2020, Public Law 
116-92, such continuation of coverage during a lapse in appropriations 
applies to any dental or vision contract under 5 U.S.C. chapters 89A 
and 89B entered into before, on, or after December 20, 2019.
* * * * *
[FR Doc. 2021-05624 Filed 4-1-21; 8:45 am]
BILLING CODE 6324-64-P