[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