[Federal Register Volume 87, Number 71 (Wednesday, April 13, 2022)]
[Rules and Regulations]
[Pages 21739-21740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07802]



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 Rules and Regulations
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  Federal Register / Vol. 87, No. 71 / Wednesday, April 13, 2022 / 
Rules and Regulations  

[[Page 21739]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 890

RIN 3206-AO18


Access to Federal Employees Health Benefits (FEHB) for Employees 
of Certain Tribally Controlled Schools

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: This rule finalizes an interim rule which expanded access to 
enrollment in the Federal Employees Health Benefits (FEHB) Program to 
additional tribal employees. The Consolidated Appropriations Act, 2021 
(FY21 CAA) amended section 409 of the Indian Health Care Improvement 
Act and expanded entitlement to Indian tribes or tribal organizations 
carrying out programs under the Tribally Controlled Schools Act of 1988 
(TCSA) to purchase coverage, rights, and benefits under the FEHB 
Program for their employees. This final rule adopts the interim final 
rule with minor clarifications.

DATES: Effective on April 13, 2022.

FOR FURTHER INFORMATION CONTACT: Julia Elam, Senior Policy Analyst, at 
[email protected] or (202) 606-2128.

SUPPLEMENTARY INFORMATION: On September 3, 2021, OPM issued an interim 
final rule (86 FR 49461) amending 5 CFR part 890, to expand access to 
enrollment in the FEHB Program to Indian tribes or tribal organizations 
carrying out programs under the Tribally Controlled Schools Act of 1988 
(TCSA) for their employees. OPM provided 60 days for the public to 
comment on the interim final rule. The comment period expired on 
November 2, 2021. However, comments were not accepted on 
regulations.gov during the first 18 days of the comment period due to a 
technical error. Therefore, OPM published an extension (86 FR 60357) of 
the period for public comment on the interim final rule from November 
2, 2021 to November 20, 2021.
    OPM notes the following clarifications to the preamble of the 
interim final rule, 86 FR 49461. In the section on ``Need for 
Regulatory Action,'' footnotes 4 and 5 in the interim final rule should 
have been reversed. In the section on ``Effects on Tribal Employees,'' 
footnote 10 is listed twice. A new footnote 6 should be inserted after 
the sentence, stating ``Another urgent concern is that American Indian/
Alaska Natives (AI/AN) experience health disparities, and, according to 
the Centers for Disease Control and Prevention (CDC), AI/AN have 
experienced disproportionate rates of infection and mortality during 
the COVID-19 pandemic.'' This footnote 6 should have included a 
citation to a report located at https://www.cdc.gov/mmwr/volumes/69/wr/mm6949a3.htm. The current Footnotes 6 should be renumbered as footnote 
7, and current footnotes 7-10 should be renumbered as 8-11. In the 
section on ``Effects on Other Parties,'' a footnote was made to the 
medical loss regulations without any text in accompanying footnote 13. 
The footnote should have included a citation to 77 FR 28790 and should 
be renumbered as footnote 12.

Authority for This Rulemaking

    Section 1114 of the Consolidated Appropriations Act, 2021 (Pub. L. 
116- 260) amended Section 409 of the Indian Health Care Improvement Act 
(25 U.S.C. 1647b) to extend entitlement to Indian tribes or tribal 
organizations carrying out programs under the TCSA (25 U.S.C. 2501 et 
seq.) to purchase coverage, rights and benefits under the FEHB Program 
for their employees.
    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).
    The Patient Protection and Affordable Care Act (ACA) (Pub. L. 111-
148) and the Health Care and Education Reconciliation Act of 2010 (Pub. 
L. 111- 152), as amended extended entitlement to Indian tribes and 
tribal organizations carrying out programs under the Indian Self-
Determination and Education Assistance Act (ISDEAA) (Pub. L. 93- 638), 
and urban Indian organizations carrying out programs under Title V of 
the Indian Health Care Improvement Act (IHCIA) to purchase coverage, 
rights, and benefits under the FEHB Program for their employees, 
defined in the FEHB regulations as ``tribal employees.'' As the 
administrator of the FEHB Program, OPM extended eligibility to tribal 
employees of entitled tribal employers within the meaning of section 
409 of the IHCIA. Tribal employers began purchasing FEHB for their 
employees on March 22, 2012 with coverage effective on May 1, 2012. As 
of January 2022, 138 tribal employers participate in the FEHB Program, 
and 1l of those are tribally controlled schools. As of January 2022, 
the total tribal enrollment in the FEHB Program is 34,333 with an 
estimated 63,000 covered lives.

Responses to Comments on the Interim Final Rule

    OPM received 2 comments from the members of the public. One 
commenter noted all school employees should have the opportunity to be 
protected during the pandemic and expanding enrollment in the Federal 
Employees Health Benefits Program will expand access. Another commenter 
also expressed support for the rule. OPM appreciates the commenters' 
support for the regulation and notes that this rule applies only to 
TCSA grant schools; schools operating under the ISDEAA (Pub. L. 93-638) 
were already entitled to purchase FEHB for tribal employees. As noted 
earlier in the rule, OPM is providing a cite the medical loss 
regulations which is a clarification. No other changes are made.

Expected Impact of the Final Rule

    While this rule identifies TCSA grant schools as tribal employers 
entitled to purchase FEHB coverage for their tribal employees, pursuant 
to Public Law 116- 260, OPM does not believe this regulation will have 
a large impact on the broader health insurance markets. Currently, 
there are an estimated 4,533 eligible tribal employees of tribally 
controlled schools, including TCSA grant schools and ``638 contract 
schools.'' Eligible tribal employees are full-time common law employees 
as determined by a tribal employer. There are an estimated 4,328 newly 
eligible tribal employees at TCSA grant schools. The impact on carriers 
is relatively small, as tribal enrollments make up 0.78 percent of 
enrollments in the FEHB

[[Page 21740]]

Program. As of January 2022, 138 tribal employers participate in the 
FEHB Program, and 11 of those are tribally controlled schools. As of 
January 2022, the total tribal enrollment in the FEHB Program is 34,333 
with an estimated 63,000 covered lives. Overall, as of March 2021 there 
are over 4.1 million separate enrollments in the FEHB Program, 
providing health insurance to about 8.2 million Federal employees, 
annuitants, certain tribal employees, and their family members covered 
by the FEHB Program.
    For states with larger American Indian/Alaska Native (AI/AN) 
populations, OPM does not expect an outsized impact on local carriers 
as local carriers plans generally reflect the cost of their area. OPM 
does not anticipate that the newly eligible tribal employees will be 
significantly more expensive than other current FEHB enrollees in the 
same geographic region. For example, OPM estimates, for tribally 
controlled schools in which data is available, that in states with 
large AI/AN populations, such as New Mexico, Arizona, and South Dakota, 
only about 1,899 tribal employees are eligible at TCSA grant schools. 
Therefore, OPM does not anticipate a material impact if these tribal 
enrollees were to enroll in FEHB coverage. For FEHB nationwide fee-for-
service (FFS) plans, there will not be enough new enrollees in this 
group to have a material impact.

Effects on Other Parties

    As described above, one expected impact of this rule is that 
affected tribal employees will gain access to health insurance plans 
with lower health insurance premiums. A reduction in those premiums 
reflects transfers between various parties involved in these 
transactions. The clearest effect is a transfer toward parties paying 
for health benefits absent the expansion of FEHB benefits, which 
largely include tribal employers and employees. This transfer is most 
likely to come initially from reductions in payments to health 
insurance providers or from offsetting increases in FEHB health 
insurance premiums. We expect that, due to medical loss ratio \1\ 
regulations, premiums largely reflect medical costs experienced by 
those insured by the plan. As a result, we expect that the rule will 
largely initially result in a transfer from those paying FEHB premiums 
(including enrollees and the Federal Government) in the baseline to 
entities who experience premium reductions under this rule. As 
described above, we expect these effects to be quite small.
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    \1\ 77 FR 28790.
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Alternative Regulatory Approaches

    OPM is unaware of feasible alternatives to this rule, as this 
regulation aligns FEHB eligibility with the FY21 CAA, which amended 
section 409 of the IHCIA. Currently, OPM regulations do not include 
FEHB eligibility for Indian tribes or tribal organizations carrying out 
programs under the TCSA, and this rule expands eligibility along these 
lines.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct 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, distribute impacts, and equity). This final 
rule is not a significant regulatory action under E.O. 12866 and was 
not reviewed by OMB.

Regulatory Flexibility Act

    OPM certifies this regulation will not have a significant economic 
impact on a substantial number of small entities.

Federalism

    OPM has 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

    Subtitle E of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (also known as 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)

    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number.
    This rule involves an OMB approved collection of information 
subject to the PRA for the FEHB Program, OMB Control Number 3206-0160, 
Health Benefits Election Form. The public reporting burden for this 
collection is estimated to average 30 minutes per response, including 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. The total burden hour estimate for this 
form is 9,000 hours. The systems of record notice for this collection 
is: OPM/Central-23, ``FEHB Program Enrollment Records,'' available at 
https://www.federalregister.gov/d/ 2021-01259.

List of Subjects in 5 CFR Part 890

    Administrative practice and procedure, Government employees, Health 
facilities, Health insurance, Health professions, Indians, Military 
personnel, Reporting and recordkeeping requirements, Retirement.

    Accordingly, OPM adopts the interim rule published September 3, 
2021, at 86 FR 49461, as final without change.

Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.
[FR Doc. 2022-07802 Filed 4-12-22; 8:45 am]
BILLING CODE 6325-64-P