[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
Federal Register
________________________________________________________________________
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.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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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]
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