[Federal Register Volume 76, Number 145 (Thursday, July 28, 2011)]
[Proposed Rules]
[Pages 45208-45211]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18976]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 792
RIN 3206-AL36
Agency Use of Appropriated Funds for Child Care Costs for Lower
Income Employees
AGENCY: U.S. Office of Personnel Management.
ACTION: Proposed rule with request for comments.
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SUMMARY: The U.S. Office of Personnel Management is proposing to revise
its regulations on agencies' use of appropriated funds to provide child
care subsidies for lower-income civilian employees, to make the
regulations clearer and more concise. It also would make certain
technical corrections, and substantive changes including in the
definition of ``child'' for purposes of the subpart. The proposed
regulations also clarify the scope of regulations concerning alcohol
and drug abuse counseling programs for employees and expand the
regulations to extend coverage to domestic partners of Federal
employees.
DATES: Comments must be received on or before August 29, 2011.
ADDRESSES: Send or deliver comments to Ingrid Burford, Work Life
Program Specialist, U.S. Office of Personnel Management, 1900 E Street,
NW., Rm. 7456, Washington, DC 20415-9700; or FAX to (202) 606-9939.
Comments may also be sent through the Federal eRulemaking Portal at
http://www.regulations.gov. All submissions received through the Portal
must include the agency name and docket number or the Regulation
Identifier Number (RIN) for this rulemaking. Please specify the subpart
and section number for each comment.
FOR FURTHER INFORMATION CONTACT: Ingrid Burford, (202) 606-0416.
SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management
(OPM) is issuing a proposed rule revising part 792 of title 5, Code of
Federal Regulations. The proposed rule would make changes in both
subparts of that part, concerning employee assistance programs and
child care subsidies for low-income employees, respectively, in
accordance with the Obama Administration's policy, expressed in
Presidential Memoranda dated June 17, 2009, and June 2, 2010, to extend
benefits, where possible, to same-sex domestic partners. The changes to
subpart A also would remove obsolete references to title 42 of the
United States Code.
Background
On June 17, 2009, President Obama issued a Memorandum regarding
Federal benefits and non-discrimination that requested the Secretary of
State and the Director of OPM, in consultation with the Department of
Justice, to extend previously identified statutorily based benefits
that those agencies believed could be extended to qualified same-sex
domestic partners of Federal employees consistent with underlying law.
This Memorandum also directed the heads of executive departments and
agencies, in consultation with OPM, to conduct a review of the benefits
offered by their respective departments and agencies to determine
whether they had the authority to extend such benefits to the same-sex
domestic partners of Federal employees. The Memorandum
[[Page 45209]]
further requested that OPM, in consultation with the Department of
Justice, make recommendations regarding any additional measures that
could be taken to provide benefits to the same-sex domestic partners of
Federal Government employees, consistent with existing law.
On June 2, 2010, the President issued another Memorandum, entitled
``Extension of Benefits to Same-Sex Domestic Partners of Federal
Employees,'' that published the results of the review and identified
the benefits that could be extended to same-sex domestic partners and
their families. These proposed regulations respond to Sections 1(a)(i)
and (ii) of the President's Memorandum, which identified additional
benefits OPM had concluded it could offer and requested OPM to ``(i)
clarify that the children of employees' same-sex domestic partners fall
within the definition of ``child'' for purposes of Federal child-care
subsidies, and, where appropriate, for child-care services'' and ``(ii)
clarify that, for purposes of employee assistance programs, same-sex
domestic partners and their children qualify as ``family members.''
Also on June 2, 2010, OPM issued a Memorandum for the Heads of
Executive Departments and Agencies, entitled ``Implementation of the
President's Memorandum Regarding Extension of Benefits to Same-Sex
Domestic Partners of Federal Employees'' to help fulfill the
Administration's policy. The Memorandum provides definitions to help
ensure its consistent application across the Federal Government.
Changes to Regulations Concerning Drug and Alcohol Abuse Programs
We are including a new provision in section 792.101 of title 5,
Code of Federal regulations, to clarify that an employee's domestic
partner, and any children of the employee's domestic partner, are
included within the employee's ``family'' for purposes of access to
alcohol and drug abuse programs. These programs, for the most part, are
already accessible by individuals whose personal relationship to the
employee (including but not limited to the employee's domestic partner)
is close enough to potentially affect the employee's performance on the
job. Therefore, the addition of specific references to domestic
partners and their children is a clarifying change to promote
consistent implementation of this regulation across the Government.
For purposes of this regulation, we have chosen not to define
``domestic partner'' or ``domestic partnership.'' Agencies are already
providing access to these programs to individuals who are close enough
to the employee to potentially affect the employee's performance on the
job. Our intent is to clarify that same-sex domestic partners meet this
standard, but not to limit agency discretion to decide that other
relationships, including opposite-sex domestic partnerships, also meet
this standard.
Changes to Child Care Subsidies Regulations
The proposed changes to subpart B would clarify and consolidate
regulations governing Federal agencies' use of appropriated funds to
provide child care subsidies for lower-income civilian employees. The
revision would correct the way the age limitation for covered children
is expressed and update obsolete references and citations. The
regulations currently provide that the subsidies may apply to child
care for children from birth through age 13 and for disabled children
through age 18. We are amending this provision to state that the
regulations apply to children under age 13 and disabled children under
age 18. This change will help ensure that agency child care subsidy
programs under part 792 conform to qualification rules used by the
Internal Revenue Service for determining the tax treatment of dependent
care assistance plans.
The proposed rule would make additional clarifying changes,
including elimination of the question-and-answer format that currently
appears in subpart B. We are adopting a narrative format to consolidate
and remove repetitive content and content that is not regulatory in
nature. The changes also include certain corrections to definitions,
such as removing the ``living with'' requirement from the definition of
``biological child'' and changing the defined term from ``child care
contractor'' to ``child care provider'', which is the term actually
used in the regulation.
We are also adding definitions of ``domestic partner'' and
``domestic partnership'' to subpart B. These definitions are based upon
the OPM Memorandum described earlier in this Supplementary Information
and have been used in other OPM regulations.
Paragraph (4) of the domestic partnership definition requires that
the partners ``share responsibility for a significant measure of each
other's financial obligations.'' This criterion, which appears in this
and in prior regulations promulgated pursuant to the President's June
2, 2010, memorandum, is intended to require only that there be
financial interdependence between the partners; it should not be
interpreted to exclude partnerships in which one partner stays at home
while the other is the primary breadwinner.
We have made a slight change to the wording of criterion (7). That
criterion is intended to prohibit recognition of domestic partnerships
between individuals who are related in a manner that would preclude
them from marrying were they of opposite sexes. We are maintaining this
criterion, but clarifying that the determination is to be made at the
time the domestic partnership is formed. It should not be re-examined
if the couple relocates to a different jurisdiction. This approach is
consistent with treatment of opposite-sex marriages.
Unlike the change to the regulations involving drug and alcohol
abuse programs discussed above, these regulations extend ``domestic
partnership'' benefits only to same-sex couples who are currently
unable to obtain spousal benefits by entering into a Federally
recognized marriage. That is because child care subsidies are currently
available only for expenses associated with the employee's children or
children of the employee's spouse. Accordingly, it is appropriate to
include the children of same-sex domestic partners in order to reflect
the President's direction to extend benefits to the same-sex domestic
partners of Federal employees to the same extent such benefits are
available to opposite-sex spouses, consistent with law.
The reference in paragraph (8) of the domestic partnership
definition to documentation or proof of a dependent or family member
relationship for purposes of eligibility for evacuation payments would
be based on each agency's internal policies. Agencies have authority to
request additional information in cases of suspected abuse or fraud,
and they would continue to be able to exercise that authority under
these proposed regulations. Agencies would be expected to apply the
same standards for verification of requests for payments for all
dependent and family member relationships, including domestic partners.
We are also proposing to change OPM's annual requirement to produce
a report on agencies' use of the authority to pay child care subsidies,
to a biannual requirement. OPM will continue, however, to collect
annual data from Federal agencies on their child care subsidy programs.
Finally, these proposed regulations would update the authority
citation for part 792 and would change the title of
[[Page 45210]]
the part from ``Federal Employees' Health and Counseling Programs'' to
``Federal Employees' Health, Counseling, and Work/Life Programs'' so
that it is broad enough to encompass the child care subsidy program.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866 and 13563.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities because they
would affect only Federal agencies and employees.
List of Subjects in 5 CFR Part 792
Alcohol abuse, Alcoholism, Day care, Drug abuse, Government
employees.
U.S. Office of Personnel Management.
John Berry,
Director.
Accordingly, the U.S. Office of Personnel Management is proposing
to amend 5 CFR part 792 as follows:
1. The title is amended to read as follows:
PART 792--FEDERAL EMPLOYEES' HEALTH, COUNSELING, AND WORK/LIFE
PROGRAMS
2. The authority citation for part 792 is revised to read as
follows:
Authority: 5 U.S.C. 7361-7363; Sec. 643, Pub. L. 106-58, 113
Sta. 477; 40 U.S.C. 590(g). Daily Comp. Pres. Docs., 2010 DCPD No.
00450, p. 1.
3. The heading for subpart A is revised to read as follows:
Subpart A--Alcoholism and Drug Abuse Programs and Services for
Federal Civilian Employees
4. Section 792.101 is revised to read as follows:
Sec. 792.101 Statutory requirements.
Sections 7361 and 7362 of title 5, United States Code, provide that
the Office of Personnel Management is responsible for developing and
maintaining, in cooperation with the Secretary of the Department of
Health and Human Services and with other agencies, appropriate
prevention, treatment, and rehabilitation programs and services for
Federal civilian employees with alcohol and drug abuse problems. To the
extent feasible, agencies are encouraged to extend services to families
(including domestic partners and their children) of alcohol and/or drug
abusing employees and to employees who have family members (including
domestic partners and their children) who have alcohol and/or drug
problems. Such programs and services shall make optimal use of existing
Government facilities, services, and skills.
5. Section 792.102 is revised to read as follows:
Sec. 792.102 General.
It is the policy of the Federal Government to offer appropriate
prevention, treatment, and rehabilitation programs and services for
Federal civilian employees with alcohol and drug problems. Short-term
counseling or referral, or offers thereof, shall constitute the
appropriate prevention, treatment, and rehabilitation programs and
services for alcohol abuse, alcoholism, and drug abuse required under
subchapter VI of chapter 73 of title 5, United States Code. Federal
agencies must establish programs to assist employees with these
problems in accordance with that subchapter.
6. Section 792.105 is amended by revising paragraph (b) to read as
follows:
Sec. 792.105 Agency responsibilities.
* * * * *
(b) Agencies must issue internal instructions implementing the
requirements of 5 U.S.C. 7361-7363 and this subpart.
* * * * *
7. Subpart B is revised to read as follows:
Subpart B--Agency Use of Appropriated Funds for Child Care Costs for
Lower Income Employees
Sec.
792.201 Purpose.
792.202 Definitions.
792.203 Child care subsidy programs; eligibility.
792.204 Agency responsibilities; reporting requirement.
792.205 Administration of child care subsidy programs.
792.206 Payment of subsidies.
Subpart B--Agency Use of Appropriated Funds for Child Care Costs
for Lower Income Employees
Sec. 792.201 Purpose.
The purpose of this subpart is to implement section 590(g) of title
40, United States Code, which permits an Executive agency to use
appropriated funds to improve the affordability of child care for
lower-income employees. The law applies to child care in the United
States and in overseas locations. Employees can benefit from reduced
child care rates at Federal child care centers, non-Federal child care
centers, and in family child care homes.
Sec. 792.202 Definitions.
In this subpart--
Child means a child who bears any of the following relationships to
either an employee, the employee's spouse, or the employee's domestic
partner:
(1) A biological child;
(2) An adopted child;
(3) A stepchild;
(4) A foster child;
(5) A child for whom a judicial determination of support has been
obtained; or
(6) A child to whose support the employee, the employee's spouse,
or the employee's domestic partner makes regular and substantial
contributions.
Child care provider means an individual or entity providing child
care services for which Federal employees' families are eligible. The
provider must be licensed or regulated, and the provider's services can
be provided in a Federally-sponsored child care center, a non-Federal
center, or a family child care home.
Child care subsidy program means the program established by an
agency in using appropriated funds, as provided in this subpart, to
assist lower-income employees with child care costs. The program can
include such activities as determining which employees receive a
subsidy and the size of their subsidies; distributing agency funds to
participating providers; and tracking and reporting information to OPM
such as total cost and employee use of the program.
Disabled child means a child who is unable to care for himself or
herself because of a physical or mental condition as determined by a
physician or licensed or certified psychologist.
Domestic partner means a person in a domestic partnership with an
employee or annuitant of the same sex.
Domestic partnership means a committed relationship between two
adults of the same sex in which the partners--
(1) Are each other's sole domestic partner and intend to remain so
indefinitely;
(2) Maintain a common residence, and intend to continue to do so
(or would maintain a common residence but for an assignment abroad or
other employment-related, financial, or similar obstacle);
(3) Are at least 18 years of age and mentally competent to consent
to a contract;
(4) Share responsibility for a significant measure of each other's
financial obligations;
[[Page 45211]]
(5) Are not married or joined in a civil union to anyone else;
(6) Are not the domestic partner of anyone else;
(7) Are not related in a way that, if they were of opposite sex,
would prohibit legal marriage in the U.S. jurisdiction in which the
domestic partnership was formed;
(8) Are willing to certify, if required by the agency, that they
understand that willful falsification of any documentation required to
establish that an individual is in a domestic partnership may lead to
disciplinary action and the recovery of the cost of benefits received
related to such falsification, as well as constitute a criminal
violation under 18 U.S.C. 1001, and that the method for securing such
certification, if required, will be determined by the agency; and
(9) Are willing promptly to disclose, if required by the agency,
any dissolution or material change in the status of the domestic
partnership.
Employee means an employee as defined in section 2105 of title 5,
United States Code.
Executive agency means an Executive agency as defined in 5 U.S.C.
105 but does not include the Government Accountability Office.
Federally-sponsored child care center means a child care center
located in a building or space that is owned or leased by the Federal
Government.
OPM means the U.S. Office of Personnel Management.
Sec. 792.203 Child care subsidy programs; eligibility.
(a)(1) An Executive agency may establish a child care subsidy
program in which the agency uses appropriated funds, in accordance with
this subpart, to assist lower-income employees of the agency with their
child care costs. The assistance may be provided for both full-time and
part-time child care, and may include before-and-after-school programs
and daytime summer programs.
(2) Two or more agencies may pool their funds to establish a child
care subsidy program for the benefit of employees who are served by a
Federally-sponsored child care center in a multi-tenant facility.
(3)(i) Except as provided under paragraph (a)(3)(ii) of this
section, an agency may impose restrictions on the use of appropriated
funds for its child care subsidy program based on consideration of
employees' needs, its own staffing needs, the local availability of
child care, and other factors as determined by the agency. For example,
an agency may decide to restrict eligibility for subsidies to--
(I) Full-time permanent employees;
(II) Employees using an agency on-site child care center;
(III) Employees using full-time child care; or
(IV) Employees using child care in specific locations.
(ii) An agency may not limit the payment of subsidies to only
accredited child care providers.
(b) Subject to any restrictions applicable under paragraph
(a)(3)(i) of this section, an employee who qualifies as a lower-income
employee under the agency's child care subsidy program is eligible to
receive a child care subsidy for the care of each child under age 13
or, in the case of a disabled child, under age 18.
Sec. 792.204 Agency responsibilities; reporting requirement.
(a) Before funds may be obligated as provided in this subpart, an
agency intending to initiate a child care subsidy program must provide
notice to the Subcommittees on Financial Services and General
Government of the House and Senate Appropriations Committees, as well
as to OPM.
(b) Agencies must notify the committees referred to in paragraph
(a) of this section and OPM annually of their intention to provide
child care subsidies. Funds may be obligated immediately after the
notifications have been made.
(c) Agencies are responsible for tracking the utilization of their
funds and reporting the results to OPM in a manner prescribed by OPM.
(d) OPM will produce a biannual report on agencies' use of the
authority to pay child care subsidies; however, OPM will collect annual
data from the agencies.
Sec. 792.205 Administration of child care subsidy programs.
(a) An agency may administer its child care subsidy program
directly or by contract with another entity, using procedures
prescribed under the Federal Acquisition Regulations. Regardless of
what entity administers the program, the Federal agency is responsible
for establishing how eligibility and subsidy amounts will be
determined.
(b) An agency contract must specify that any unexpended funds will
be returned to the agency after the contract is completed.
Sec. 792.206 Payment of subsidies.
(a) Payment of child care subsidies must be made directly to child
care providers, unless one of the following exceptions applies:
(1) In overseas locations, the agency may pay the employee if the
provider deals only in foreign currency.
(2) In unique circumstances, an agency may obtain written
permission from OPM to pay the employee directly.
(b) An agency may make advance payments to a child care provider in
certain circumstances, such as when the provider requires payment up to
one month in advance of rendering services. An agency may not make
advance payments for more than one month before the employee receives
child care services except where an agency has contracted with another
entity to administer the child care subsidy program, in which case the
agency may advance payments to the entity administering the program as
long as the requirements in Sec. 792.205(b) are met.
[FR Doc. 2011-18976 Filed 7-27-11; 8:45 am]
BILLING CODE 6325-39-P