[Federal Register Volume 78, Number 191 (Wednesday, October 2, 2013)]
[Rules and Regulations]
[Pages 60653-60656]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23565]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / 
Rules and Regulations

[[Page 60653]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 890

RIN 3206-AM85


Federal Employees Health Benefits Program: Members of Congress 
and Congressional Staff

AGENCY: Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing a 
final rule to amend the Federal Employees Health Benefits (FEHB) 
Program regulations regarding coverage for Members of Congress and 
congressional staff.

DATES: Effective Date: October 2, 2013.

FOR FURTHER INFORMATION CONTACT: Chelsea Ruediger at (202) 606-0004.

SUPPLEMENTARY INFORMATION: This final rule amends Federal Employees 
Health Benefits (FEHB) Program regulations to comply with Section 1312 
of the Patient Protection and Affordable Care Act, Public Law 111-148, 
as amended by the Health Care and Education Reconciliation Act, Public 
Law 111-152 (the Affordable Care Act or the Act).
    On August 8, 2013, the Office of Personnel Management (OPM) 
published a proposed rule inviting comments on amendments to the FEHB 
Program regulations. The 30-day comment period ended on September 9, 
2013. In response to this proposed rule, OPM received nearly 60,000 
comments. The comments are summarized and discussed below. OPM will 
provide additional guidance as deemed necessary.

Comments on Section1251(a) of the Affordable Care Act

    Several commenters requested that OPM review Section 1251(a) of the 
Affordable Care Act, which provides continuity of coverage for 
individuals covered under a group health plan. These commenters 
suggested that Section 1251(a) provides grounds for ``grandfathering'' 
current FEHB-eligible Members of Congress and congressional staff 
members into their current coverage and applying the requirements of 
Section 1312 only to Members of Congress and congressional staff hired 
on or after January 1, 2014.
    OPM is not amending the rule in response to these comments. While 
OPM acknowledges that, in general, the Affordable Care Act did not 
intend to disrupt existing health insurance coverage, in this context, 
the Act included clear and unambiguous language providing that all 
Members of Congress and congressional staff employed by the official 
office of a Member of Congress be subject to the terms of Section 1312 
regardless of their dates of employment. Thus, the final rule 
implements Section 1312 of the Affordable Care Act as written.

Comments About the Method by Which Congressional Staff Are Designated 
as Covered by Sec.  1312 of the Affordable Care Act

    OPM received several comments related to health care coverage for 
congressional staff and how staff will be designated for the purpose of 
determining which individuals are required to purchase their health 
insurance coverage from an Exchange.
    OPM has not amended the final rule on the basis of these comments. 
OPM continues to believe that individual Members or their designees are 
in the best position to determine which staff work in the official 
office of each Member. Accordingly, OPM will leave those determinations 
to the Members or their designees, and will not interfere in the 
process by which a Member of Congress may work with the House and 
Senate Administrative Offices to determine which of their staff are 
eligible for a Government contribution towards a health benefits plan 
purchased through an appropriate Small Business Health Options Program 
(SHOP) as determined by the Director. Nothing in this regulation limits 
a Member's authority to delegate to the House or Senate Administrative 
Offices the Member's decision about the proper designation of his or 
her staff. The final rule has been amended to provide an extension for 
staff designations affecting plan year 2014 only. Designations for 
individuals hired throughout the plan year should be made at the time 
of hire.

Comments on Incorporating Exchange Plans Under the Sec.  8901 (6) 
Definition of ``Health Benefit Plan Under This Chapter''

    Some commenters questioned OPM's decision to incorporate Exchange 
qualified health plans into the Section 8901(6) definition of a health 
benefits plan. OPM maintains its position that, because the Affordable 
Care Act did not alter the definition of ``health benefits plan'' under 
5 U.S.C. 8901(6) and because the statutory definition of ``health 
benefits plan'' would otherwise apply to an Exchange qualified health 
plan, this regulation is an appropriate exercise of OPM's interpretive 
authority under Chapter 89.
    OPM has been provided the statutory authority to administer health 
benefits to Federal employees (as defined in 5 U.S.C. 8901(1)). Because 
Section 1312 of the Affordable Care Act did not remove Members of 
Congress or congressional staff from the Chapter 89 definition of 
``employee,'' it is within OPM's interpretive authority under Chapter 
89 to clarify that a Government contribution may be provided to, and to 
establish the means for a Government contribution towards health 
benefits for, Members of Congress and congressional staff, just as we 
do for other Federal employees.

Comments on Government Contributions

    Numerous commenters questioned OPM's proposal to extend a 
Government contribution for Members of Congress and congressional staff 
purchasing health plans through the individual market Exchanges. Many 
commenters expressed their view that a Government contribution is 
antithetical to the intent of Section 1312 of the Affordable Care Act, 
which they interpret to require Members of Congress and congressional 
staff to purchase the same health insurance available to private 
citizens on the Exchanges. Commenters asserted that Members of Congress 
and congressional staff should be subject to the same requirements as 
citizens purchasing insurance on the Exchanges, including individual 
responsibility for

[[Page 60654]]

premiums and income restrictions for premium assistance.
    As described in the proposed rule, because there are now employees 
covered by chapter 89 who will be purchasing health benefits plans on 
Exchanges, we believe that it is appropriate that the provisions that 
authorize an employer contribution for ``health benefits plans under 
this chapter'' includes health benefits plans fitting within the 
definition set forth in Section 8901(6). Nothing in this rule or the 
law prevents a Member of Congress or designated congressional staff 
from declining a Government contribution for himself or herself by 
choosing a different option for his/her health insurance coverage.
    The proposed rule was silent on whether eligible individuals would 
select qualified health plans through an Exchange in the individual or 
small group market by way of the SHOP. Because a Government 
contribution is, in essence, an employer contribution, the final rule 
clarifies that Members of Congress and designated congressional staff 
must enroll in an appropriate SHOP as determined by the Director in 
order to receive a Government contribution. SHOPs are designed to 
provide employer-sponsored group health benefits and are, therefore, 
the appropriate environment in which to provide an employer 
contribution to Members of Congress and congressional staff. Further, 
this ensures that Members of Congress and congressional staff do not 
have additional choices in the individual Exchanges with a Government 
contribution that other individuals lack. Given the location of 
Congress in the District of Columbia, OPM has determined that the DC 
SHOP, known as the DC Health Link Small Business Market administered by 
the DC Health Benefit Exchange Authority, is the appropriate SHOP from 
which Members of Congress and designated congressional staff will 
purchase health insurance in order to receive a Government 
contribution. OPM intends to work with the DC Health Benefits Exchange 
to implement this rule.
    Nothing in the final rule limits an individual from purchasing 
health insurance through other methods including the individual market 
Exchanges. Members of Congress and designated congressional staff are 
subject to the same requirements as citizens purchasing insurance on 
the Exchanges, including individual responsibility. Access to the 
Government contribution through the SHOP limits their eligibility for 
premium tax credits available through the individual market Exchanges.
    OPM was also asked to provide additional details on how the 
Government contribution will be calculated. The formula for Government 
contributions is set forth in 5 U.S.C. Section 8906.

Comments on Retirement

    Numerous commenters have urged OPM to reconsider its position that 
Section 1312 affects annuitant health insurance benefits.
    Section 1312 only addresses the health benefits plans that the 
Federal Government may offer Members of Congress and congressional 
staff employed by the official office of a Member of Congress while 
they are employed in those positions. This provision neither amended 
any of the sections of Chapter 89 relating to annuitant health benefits 
nor otherwise indicated that the provision applies to annuitants. 
Because we agree with the central premise of these comments, we have 
deleted the proposed language in Section 890.501(h)(1) and (2) 
referring to annuitants. We make this change for the additional reason 
that, otherwise, Members of Congress and congressional staff would have 
broader health insurance options in the Exchange in retirement than are 
available to other Federal annuitants. Members of Congress and 
congressional staff will be subject to the same rules of participation 
in the FEHB Program in retirement as other Federal annuitants.
    During the comment period, OPM was asked to clarify the effect of 
this regulation on current congressional retirees. Under the final 
rule, congressional retirees who are currently enrolled in plans 
contracted for and approved by OPM will not be affected and will 
continue enrollment in their current plans. In addition, OPM was asked 
if time covered under a plan purchased through the appropriate SHOP 
with a Government contribution would count towards the 5-year 
requirement to carry coverage into retirement. Time spent under a plan 
purchased on the appropriate SHOP as determined by the Director and 
purchased pursuant to Section 1312 of the Affordable Care Act will 
count towards the time requirement outlined in Chapter 89 Section 
8905(b).
    OPM was also asked to clarify the impact of this regulation on 
reemployed annuitants. This final rule does nothing to affect the 
choices available to a reemployed annuitant. As a general matter, upon 
reemployment an annuitant participating in the FEHB Program may choose 
either to continue that coverage without premium conversion through OPM 
or to have his/her enrollment transferred to his/her employing office.

Coverage of Abortion Services

    OPM received over 59,000 comments regarding coverage of abortion 
services for Members of Congress and congressional staff. More than 
51,000 of these requested that plans available to Members of Congress 
and congressional staff include abortion services.
    Current law prohibits the use of Federal funds to pay for 
abortions, except in the case of rape, incest, or when the life of the 
woman is endangered, and the Smith Amendment in particular makes no 
funds available ``to pay for abortions or administrative expenses in 
connections with health plans under the FEHBP which provides any 
benefits or coverage for abortions.'' Neither the proposed nor final 
regulation alters these prohibitions. Under OPM's final rule, no 
Federal funds, including administrative funds, will be used to cover 
abortions or administer plans that cover abortions. Unlike the health 
plans for which OPM contracts pursuant to 5 U.S.C. 8902, 8903 and 
8903a, OPM does not administer the terms of the health benefits plans 
offered on an Exchange. Consequently, while plans with such coverage 
may be offered on an Exchange, OPM can and will take appropriate 
administrative steps to ensure that the cost of any such coverage 
purchased by a Member of Congress or a congressional staffer from a 
designated SHOP is accounted for and paid by the individual rather than 
from the Government contribution, consistent with the general 
prohibition on Federal funds being used for this purpose.

Comments on Effective and Termination Dates

    OPM was asked to clarify the termination date for current FEHB plan 
coverage. Current FEHB health plan enrollment for Members of Congress 
and congressional staff employed by the official office of a Member of 
Congress will terminate at midnight on December 31, 2013. Members of 
Congress and designated congressional staff who choose to purchase 
health insurance through the appropriate SHOP as determined by the 
Director may do so with an effective date of January 1, 2014. OPM will 
provide additional guidance regarding effective and termination dates 
as deemed necessary.

Comments on Eligibility for Other Federal Benefits

    OPM received one comment requesting clarification on the 
eligibility of Members of Congress and

[[Page 60655]]

congressional staff to participate in other Federal benefits programs 
administered by OPM. Section 1312 and this rule only pertain to 
Members' or congressional staff's health benefits plans.

Comments About Insurance Coverage for Representatives of U.S. 
Territories

    OPM received a comment from the representatives of U.S. 
Territories. Because these Members of Congress represent geographic 
areas where there may not be a health insurance Exchange, commenters 
expressed concern that these representatives would lose health coverage 
if removed from current FEHB plan eligibility. Three solutions were 
suggested: allow these Members and their staff to maintain current FEHB 
plan coverage, allow them to enroll in a DC-based or Federal Exchange, 
or allow them to enroll in a Federal Exchange established for 
territories for this purpose.
    After reviewing these options, OPM has determined that, like other 
Members of Congress and congressional staff, representatives from the 
U.S. Territories and their staff who want to receive a Government 
contribution will enroll for coverage through the appropriate SHOP as 
determined by the Director.

Comments About the Affordable Care Act

    OPM received several comments expressing opinions about the 
Affordable Care Act as a whole. Other comments more specifically 
addressed the requirement in Section 1312 to remove Members of Congress 
and congressional staff from current FEHB plan coverage. Some indicated 
that the decision to remove Members of Congress and congressional staff 
from current FEHB plan coverage would have detrimental effects to these 
individuals. Others felt that the provision should only apply to 
Members of Congress and not to congressional staff. Others indicated 
that Members of Congress should not be provided with employer-based 
health coverage at all. The majority of these comments have been 
addressed in the above discussion. The remaining comments regarding the 
Affordable Care Act are beyond the scope of this regulation and are not 
addressed.

Additional Comments

    OPM received additional comments regarding coverage of pathology 
services, Health Reimbursement Arrangements, and employer shared 
responsibility. These comments have been deemed outside the scope of 
this regulation and are not addressed in the final rule. In addition, 
OPM received requests for operational details about the administration 
of benefits for Members of Congress and designated congressional staff. 
Most of these questions have been responded to in the final rule. In 
addition, OPM plans to provide operational guidance in future 
communications as deemed necessary.
    In addition to the changes described above, the final rule includes 
non-substantive, editorial changes to improve clarity.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because the regulation 
only involves the issue of where Members of Congress and certain 
congressional staff may purchase their health insurance, and does not 
otherwise alter the FEHB program.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

Federalism

    We have 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.

List of Subjects in 5 CFR Part 890

    Administration and general provisions, Health benefits plans, 
Enrollment, Temporary extension of coverage and conversion, 
Contributions and withholdings, Transfers from retired FEHB Program, 
Benefits in medically underserved areas, Benefits for former spouses, 
Limit on inpatient hospital charges, physician charges, and FEHB 
benefit payments, Administrative sanctions imposed against health care 
providers, Temporary continuation of coverage, Benefits for United 
States hostages in Iraq and Kuwait and United States hostages captured 
in Lebanon, Department of Defense Federal Employees Health Benefits 
Program demonstration project, Administrative practice and procedure, 
Employee benefit plans, Government employees, Reporting and 
recordkeeping requirements, Retirement.

U.S. Office of Personnel Management.
Elaine Kaplan,
Acting Director.
    Accordingly, OPM is amending chapter I, title 5, Code of Federal 
Regulations as follows:

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

0
1. The authority citation for part 890 is revised to read as follows:

    Authority:  5 U.S.C. 8913; Sec. 890.301 also issued under sec. 
311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under 
section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also 
issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 
8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c 
and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-
513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under 
sections 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105-33, 
111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061; 
Pub. L. 111-148, as amended by Pub. L. 111-152.


0
2. Amend Sec.  890.101 by adding definitions of ``Congressional staff 
member'', ``Member of Congress'', and ``Shop'' to paragraph (a) in 
alphabetical order to read as follows:


Sec.  890.101  Definitions; time computations.

    (a) * * *
    Congressional staff member means an individual who is a full-time 
or part-time employee employed by the official office of a Member of 
Congress, whether in Washington, DC or outside of Washington, DC.
* * * * *
    Member of Congress means a member of the Senate or of the House of 
Representatives, a Delegate to the House of Representatives, and the 
Resident Commissioner of Puerto Rico.
* * * * *

SHOP has the meaning given in 45 CFR 155.20.
* * * * *


Sec.  890.102  Coverage.

0
3. Amend Sec.  890.102 by adding paragraph (c)(9) and revising 
paragraph (e) as follows:
* * * * *
    (c) * * *
    (9) The following employees are not eligible to purchase a health 
benefit plan for which OPM contracts or which OPM approves under this 
paragraph (c), but may purchase health benefit plans, as defined in 5 
U.S.C. 8901(6), that are offered by an appropriate SHOP as determined 
by the Director, pursuant to section 1312(d)(3)(D) of the Patient 
Protection and Affordable Care Act, Public Law 111-148, as amended by 
the Health Care and Education Reconciliation Act, Public Law 111-152 
(the Affordable Care Act or the Act):
    (i) A Member of Congress.
    (ii) A congressional staff member, if the individual is determined 
by the employing office of the Member of

[[Page 60656]]

Congress to meet the definition of congressional staff member in Sec.  
890.101 as of January 1, 2014, or in any subsequent calendar year. 
Designation as a congressional staff member shall be an annual 
designation made prior to November 2013 for the plan year effective 
January 1, 2014 and October of each year for subsequent years or at the 
time of hiring for individuals whose employment begins during the year. 
The designation shall be made for the duration of the year during which 
the staff member works for the Member of Congress beginning with the 
January 1st following the designation and continuing to December 31st 
of that year.
* * * * *
    (e) With the exception of those employees or groups of employees 
listed in paragraph (e)(1) of this section, the Office of Personnel 
Management makes the final determination of the applicability of this 
section to specific employees or groups of employees.
    (1) Employees identified in paragraph (c)(9)(i) and (ii) of this 
section.
    (2) [Reserved].
* * * * *

0
4. Amend Sec.  890.201 to add a new paragraph (d) to read as follows:


Sec.  890.201  Minimum standards for health benefit plans.

    (d) Nothing in this part shall limit or prevent a health insurance 
plan purchased through an appropriate SHOP as determined by the 
Director, pursuant to section 1312(d)(3)(D) of the Patient Protection 
and Affordable Care Act, Public Law 111-148, as amended by the Health 
Care and Education Reconciliation Act, Public Law 111-152 (the 
Affordable Care Act or the Act), by an employee otherwise covered by 5 
U.S.C. 8901(1)(B) and (C) from being considered a ``health benefit plan 
under this chapter'' for purposes of 5 U.S.C. 8905(b) and 5 U.S.C. 
8906.
* * * * *

0
5. Amend Sec.  890.303 by revising paragraph (b) as follows:


Sec.  890.303  Continuation of enrollment.

* * * * *
    (b) Change of enrolled employees to certain excluded positions. 
Employees and annuitants enrolled under this part who move, without a 
break in service or after a separation of 3 days or less, to an 
employment in which they are excluded by Sec.  890.102(c), continue to 
be enrolled unless excluded by paragraphs (c)(4), (5), (6), (7), or (9) 
of Sec.  890.102.
* * * * *

0
6. Amend Sec.  890.304 by revising paragraph (a)(1)(iii) to read as 
follows.


Sec.  890.304  Termination of enrollment.

    (a) * * *
    (1) * * *
    (iii) The last day of the pay period in which his or her employment 
status or the eligibility of his or her position changes so that he or 
she is excluded from enrollment.
* * * * *

0
7. Amend Sec.  890.501 to add a new paragraph (h) to read as follows:


Sec.  890.501  Government contributions.

* * * * *
    (h) The Government contribution for an employee who enrolls in a 
health benefit plan offered through an appropriate SHOP as determined 
by the Director pursuant to section 1312(d)(3)(D) of the Patient 
Protection and Affordable Care Act, Public Law 111-148, as amended by 
the Health Care and Education Reconciliation Act, Public Law 111-152 
(the Affordable Care Act or the Act) shall be calculated in the same 
manner as for other employees.
    (2) Government contributions and employee withholdings for 
employees who enroll in a health benefit plan offered through an 
appropriate SHOP as determined by the Director, pursuant to section 
1312(d)(3)(D) of the Patient Protection and Affordable Care Act, Public 
Law 111-148, as amended by the Health Care and Education Reconciliation 
Act, Public Law 111-152 (the Affordable Care Act or the Act) shall be 
accounted for pursuant to section 8909 of title 5 and such monies shall 
only be available for payment of premiums, and costs in accordance with 
section 8909(a)(2) of title 5.

[FR Doc. 2013-23565 Filed 9-30-13; 11:15 am]
BILLING CODE 6325-63-P