Access to Federal Employees Health Benefits (FEHB) for Employees of Certain Indian Tribal Employers

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.

EFFECTIVE DATE: 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.

FOOTNOTE 1 Available at https://www.opm.gov/healthcare-insurance/tribal-employers/reference-materials/. END FOOTNOTE

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.

FOOTNOTE 2 Available at https://www.opm.gov/healthcare-insurance/tribal-employers/hr-personnel/outreach-documents/outreach-documents-archive/. END FOOTNOTE

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.

FOOTNOTE 3 Available at https://www.opm.gov/healthcare-insurance/tribal-employers/hr-personnel/#url=Work-Group. END FOOTNOTE

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 and which will not. As a result, interest in FEHB enrollment has increased.

FOOTNOTE 4 Available at https://www.opm.gov/healthcare-insurance/tribal-employers/hr-personnel/outreach-documents/tribal-leader-letter-2014.pdf. END FOOTNOTE

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 SUBSEC 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 is a summary of a Federal Register article originally published on the page number listed below--

Final rule.

CFR Part: "5 CFR Part 890"

RIN Number: "RIN 3206-AM40"

Citation: "81 FR 95397"

Federal Register Page Number: "95397"

"Rules and Regulations"