[Federal Register Volume 77, Number 140 (Friday, July 20, 2012)]
[Rules and Regulations]
[Pages 42905-42909]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17539]


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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: Final rule.

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SUMMARY: The U.S. Office of Personnel Management is adopting as final 
changes to its regulations concerning alcohol and drug abuse counseling 
programs for employees and changes to its regulations concerning 
agencies' use of appropriated funds to provide child care subsidies for 
lower-income civilian employees. The changes would clarify the scope of 
regulations for alchohol and drug abuse programs for Federal civilian 
employees; change the definition of ``child''; expand regulations to 
extend coverage to child care services for children of same-sex 
domestic partners of Federal employees; make certain technical 
corrections; and make other changes designed to render the regulations 
clearer and more concise.

DATES: Effective July 20, 2012.

FOR FURTHER INFORMATION CONTACT: Ingrid Burford, (202) 606-0416 or 
email Ingrid.burford@opm.gov.

SUPPLEMENTARY INFORMATION: On July 28, 2011, the U.S. Office of 
Personnel Management (OPM) published proposed regulations (76 FR 45208) 
revising part 792 of title 5, Code of Federal Regulations. This final 
rule makes changes in both subparts of that part, concerning employee 
assistance programs and child care subsidies for low-income employees, 
respectively, in response to the President's direction in Presidential 
Memoranda dated June 17, 2009 (Dailey Comp. Pres. Docs., 2010 DCPD No. 
00450, p. 1.), and June 2, 2010, that agencies consider extending 
benefits, where possible, to same-sex domestic partners, and OPM's 
determination to make benefits available to same-sex domestic partners, 
to the extent feasible, in this context. The changes to subpart A also 
remove obsolete references to title 42 of the United States Code.
    During the comment period, we received six comments in response to 
the proposed rule. Most of the comments supported the proposed changes. 
However, two commenters--an agency and an advocacy group--recommended 
that, for the purposes of the child care subsidy program, OPM revise 
the definition of ``domestic partner'' to include opposite-sex domestic 
partners as well as same-sex. The agency commented that the distinction 
OPM had drawn ``will limit agencies from providing an equitable policy 
to opposite-sex couples having legal documentation of their status as a 
domestic partner in a legal domestic partnership. It is [the agency's] 
position that employees in same-sex and opposite-sex domestic 
partnerships should be treated equally.'' The agency then provided 
examples of States and cities that recognize both kinds of 
partnerships.

[[Page 42906]]

    The advocacy group observed that abandoning the distinction would 
``further expand the number of lower-income employees who will be able 
to access these child care subsidies.'' It ``encourage[d] OPM to cover 
all qualified families, including unmarried opposite sex couples. * * 
*'' That commenter further stated that adopting the definition of 
``domestic partner'' as stated in the current OPM regulations for 
annual, sick, and funeral leave would make the definitions consistent 
across OPM.
    Although we considered these comments, we did not change our 
definition for the purposes of the child care subsidy program. OPM 
undertook to make this change because, currently, Federal employees are 
unable to use this benefit with respect to children of their same-sex 
domestic partners.
    Opposite-sex couples may obtain these benefits by entering into 
marriage. This is not an option for same-sex couples with respect to 
Federal benefits, because of the defense of Marriage Act, 1 U.S.C. 7.
    The same agency commenter questioned the inclusion of annuitants in 
the definition of a ``domestic partner,'' since annuitants are not 
eligible by law for the child care subsidy program. The commenter 
suggested we remove the reference to annuitants. We concur and have 
revised the regulations to remove the reference.
    One agency highlighted concerns regarding the documentation that 
would be required for Federal agencies to verify the establishment of a 
domestic partnership and total family income requirements for 
eligibility for the child care subsidy program. Since this benefit 
became available by law, OPM has always given agencies authority to set 
their own thresholds, as well as requirements for what information to 
solicit from employees to qualify for the child care subsidy program. 
We provide guidance and sample documents agencies may require, but we 
do not regulate the specific types of acceptable documentation. Agency 
policies should require same-sex domestic partners to provide the same 
kinds of documentation they require married employees to provide.
    The advocacy group referenced above expressed concerns that the 
definition of ``child'' may have the unintended consequence of 
restricting access to a child care subsidy because the child may belong 
to the non-earning parent, and not the Federal employee. It recommends 
that OPM adopt a definition of ``child'' used by the Department of 
Labor. Specifically, the commenter recommends including the following 
wording: ``* * * (6) A child for whom the employee, the employee's 
spouse, or the employee's domestic partner stands in loco parentis.'' 
(A reference to standing in loco parentis would, in the advocacy 
group's view, include those with day-to-day responsibilities to care 
for or financially support a child, regardless of the existence of a 
biological or legal relationship.) An agency raised a similar comment. 
OPM believes the definition in the proposed rule is sufficient and will 
not restrict access in the manner suggested; it allows either the 
domestic partner or the employee to be the individual who make the 
contributions for the support of the child, and the child would still 
be considered eligible for the child care subsidy program in either 
event.

Background

    On June 17, 2009, President Obama issued a Memorandum, entitled 
``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 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. We issued our proposed regulations in response to 
section 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 
agencies apply the President's Memorandum in the same way, to the 
extent consistent with applicable law.

Final Changes to the Regulations Concerning Drug and Alcohol Abuse 
Programs

    The final rule will add a new provision in Sec.  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.

Final Changes to the Child Care Subsidy Regulations

    The final rule adopts changes to subpart B to clarify and 
consolidate regulations governing Federal agencies' use of appropriated 
funds to provide child care subsidies for lower-income civilian 
employees. The revision corrects the way the age limitation for covered 
children is expressed and

[[Page 42907]]

updates 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 
amended 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 final rule makes additional clarifying changes, including 
elimination of the question-and-answer format that currently appears in 
subpart B. We adopted 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 added 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 definition of ``domestic partnership'' 
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 in response 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 require the exclusion of 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 clarified 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 the 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 new policy 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 changing 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.
    Our proposed regulation proposed to add to the authority citation 
for part 792 by including the President's Memorandum of June 2, 2010. 
Upon further deliberation we concluded not to include that document in 
the authority citation, because the President's Memorandum is an 
expression of administration policy rather a source of positive 
authority, which actually derives from the statutes previously cited. 
We are proceeding with the change of the title of 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 Orders 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 amends 5 CFR 
part 792 as follows:

PART 792--FEDERAL EMPLOYEES' HEALTH, COUNSELING, AND WORK/LIFE 
PROGRAMS

0
1. 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 
Stat. 477; 40 U.S.C. 590(g).


0
2. The part 792 heading is revised to read as set forth above.

Subpart A--Alcoholism and Drug Abuse Programs and Services for 
Federal Civilian Employees

0
3. The heading for subpart A is revised to read as set fort above.
0
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 should make optimal use of 
existing Government facilities, services, and skills.

0
5. Section 792.102 is revised to read as follows:

[[Page 42908]]

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, 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.

0
6. In Sec.  792.105, revise 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.
* * * * *

0
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 
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 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;
    (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--
    (A) Full-time permanent employees;
    (B) Employees using an agency on-site child care center;
    (C) Employees using full-time child care; or
    (D) Employees using child care in specific locations.
    (ii) An agency may not limit the payment of subsidies to accredited 
child care providers.

[[Page 42909]]

    (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. 2012-17539 Filed 7-19-12; 8:45 am]
BILLING CODE 6325-39-P