[Senate Report 111-376]
[From the U.S. Government Publishing Office]
Congress
2d Session SENATE Report
111-376
_______________________________________________________________________
Calendar No. 704
DOMESTIC PARTNERSHIP BENEFITS AND OBLIGATIONS ACT OF 2009
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 1102
TO PROVIDE BENEFITS TO DOMESTIC PARTNERS OF FEDERAL EMPLOYEES
December 17, 2010.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri JOHN ENSIGN, Nevada
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
CHRISTOPHER A. COONS, Delaware MARK KIRK, Illinois
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Lawrence B. Novey, Senior Counsel
Kenya N. Wiley, Counsel
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Amanda Wood, Minority Director for Governmental Affairs
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 704
111th Congress Report
SENATE
2d Session 111-376
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DOMESTIC PARTNERSHIP BENEFITS AND OBLIGATIONS ACT OF 2009
_______
December 17, 2010.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 1102]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 1102) to provide
benefits to domestic partners of Federal employees, having
considered the same, reports favorably thereon with amendment
and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History.............................................26
IV. Section-by-Section Analysis.....................................28
V. Estimated Cost of the Legislation...............................56
VI. Evaluation of Regulatory Impact.................................60
VII. Changes in Existing Law.........................................60
I. Purpose and Summary
The purpose of the Domestic Partnership Benefits and
Obligations Act of 2010 is to bring the federal government in
line with most of the nation's largest employers by giving
federal employees in same-sex domestic partnerships and their
partners the same employment benefits currently offered to
married federal employees and their spouses and to subject them
to the same employment-related obligations. Employment benefits
extended by the bill include health insurance, pension rights,
family and medical leave, and group life insurance. Obligations
imposed by the bill include financial disclosure requirements,
conflict-of-interest restrictions, and anti-nepotism rules.
II. Background and Need for the Legislation
With two million civilian employees, plus over six hundred
thousand postal employees, the federal government is the
nation's largest employer.\1\ It strives, in its own words, to
serve as America's ``model employer for the 21st Century'' with
personnel policies that allow it to ``recruit, retain and honor
a world-class workforce to serve the American people.''\2\
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\1\See Bureau of Labor Statistics, U.S. Department of Labor,
``Career Guidelines, 2010-11 Edition: Federal Government,'' http://
www.bls.gov/oco/cg/cgs041.htm; U.S. Postal Service, 2009 Annual Report,
``The Challenge to Deliver: Creating the 21st Century Postal Service,''
http://www.usps.com/financials/_pdf/annual_report_2009.pdf.
\2\U.S. Office of Personnel Management, Strategic Plan 2010-2015,
``A New Day for Federal Service,'' at page 4, http://www.opm.gov/
strategicplan/StrategicPlan_20100310.pdf.
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While the federal government has established successful
personnel policies in many respects, there is a category of
federal workers for whom the government's benefits policies
have fallen short: employees who are in same-sex domestic
partnerships. Same-sex domestic partners--the bill's specific
definition of which is discussed later in this report--in
general terms are two unrelated adults of the same sex who have
undertaken a long-term mutual commitment to make a domestic
life together and to help care for each other financially and
otherwise.\3\ Federal employees with same-sex domestic partners
in our federal workforce perform the same jobs as their married
co-workers, yet, unlike those co-workers, cannot, by law,
access a range of benefits for their partners and those
partners' children. This disparity not only effectively and
unfairly diminishes these employees' compensation when compared
with their co-workers; it also causes great unease for many of
these employees, whose domestic partners live without health
insurance and the range of other important benefits that
married employees and their families take for granted.
Moreover, in its treatment of employees with same-sex domestic
partners, the federal government is falling increasingly
farther behind the private sector, where a large and growing
number of leading employers--including over 60 percent of
Fortune 500 companies--provide benefits for such employees and
their domestic partners.\4\
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\3\See Employee Benefit Research Institute, Facts from EBRI,
``Domestic Partner Benefits: Facts and Background'' (Updated February
2009), http://ebri.org/pdf/publications/facts/0209fact.pdf, entered
into the record of this Committee's hearing held on October 15, 2009
(described in note 38 below and accompanying text) at page 51.
\4\See section II.A.1, below, of this report.
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This situation has real consequences for the government as
an employer--problems in recruiting qualified employees,
challenges in retaining them, and loss of productivity when
effective employees become distracted or disheartened.\5\ After
reviewing the current policy's impact on the federal workforce
and the prevalence and effect of domestic partner benefits in
the private sector, the Committee has concluded that it is time
to amend the law to extend domestic partner benefits to the
federal workforce, so that the federal government can more
closely mirror the policies of over 60 percent of Fortune 500
companies and can better compete as a model 21st Century
employer.
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\5\These consequences are described in testimony and other
materials presented to this Committee at hearings on September 24, 2008
and October 15, 2009 (described in notes 37 and 38 below and the
accompanying text) and are discussed in section II.B.1, below, of this
report.
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A. AVAILABILITY OF DOMESTIC PARTNERSHIP BENEFITS
1. Most of the largest non-federal employers provide benefit coverage
for their employees with same-sex domestic partners
Many leading employers across the economy provide benefits
to employees with domestic partners--and the number of those
doing so has increased dramatically in recent years. (Such
benefits are sometimes referred to as domestic partnership
benefits, domestic partner benefits, or DP benefits.) Based on
surveys by the Society for Human Resource Management and the
Kaiser Family Foundation as well as its own research, the Human
Rights Campaign Foundation has reported that, whereas only 7
percent of employers offered benefits for employees' same-sex
domestic partners in 1997, now at least one out of three
employers and 50 percent of employers with 5,000 or more
workers provide such benefits.\6\ Among the largest employers,
as illustrated in the nearby chart (figure 1), 85 percent of
Fortune 20 companies, nearly 60 percent of Fortune 500
companies, and over 75 percent of the highest-gross-revenue
earning law firms extend benefits to their employees with same-
sex domestic partners. And the numbers of companies providing
such benefits are steadily increasing: of Fortune 100
companies, 64 percent offered same-sex partner benefits in
2003, and by 2009 that number had risen to 83 percent.
Moreover, among non-federal governmental employers, 20 States
and several hundred local jurisdictions now extend benefits to
their employees with same-sex domestic partners.\7\ As
described later in this report, several leading companies
explained to the Committee their reasons for maintaining
domestic partner benefit programs, including that offering such
benefits--
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\6\Human Rights Campaign Foundation, ``The State of the Workplace
for Lesbian, Gay, Bisexual and Transgender Americans 2007-2008'' (2009)
at page 9, http://www.hrc.org/documents/
HRC_Foundation_State_of_the_Workplace_2007-2008.pdf.
\7\The 20 States are: Alaska, Arizona, California, Colorado,
Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Montana, New
Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island,
Vermont, Washington, and Wisconsin. See Human Rights Campaign, Employer
Database, http://www.hrc.org/issues/workplace/list.asp, also http://
www.hrc.org/issues/workplace/search.asp?form=private_quick_search.aspx;
see also Center for American Progress, ``One Simple Step for Equality:
States Prove that the Federal Government Can Offer Domestic Partner
Benefits with Ease'', by Winnie Stachelberg, Josh Rosenthal, and Claire
Stein-Ross (September 2008), http://www.americanprogress.org/issues/
2008/09/pdf/domestic_partner_benefits.pdf, entered into the record of
this Committee's hearing held on September 24, 2008 (described in note
37 below and the accompanying text) at page 173).
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``gives us an advantage'' in helping to
``ensure we attract, develop and advance the very best
talent available in the marketplace,''\8\
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\8\Statement of William H. Hendrix, Dow Chemical Company, quoted in
text accompanying notes 42-43 below.
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``can improve low productivity and morale
caused by inequitable workplace practices,''\9\ and
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\9\Statement of Yvette C. Burton, IBM, quoted in text accompanying
note 68 below.
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``has not been a financial burden,'' but
rather, ``by enabling us to attract and retain a wide
variety of talented employees at every level of the
organization'', the company's domestic partner benefit
program ``actually strengthens our financial
underpinnings.''\10\
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\10\Statement of Kathleen Marvel, the Chubb Corporation, quoted in
text accompanying note 119 below.
FIGURE 1. HOW MANY FORTUNE-RANKED COMPANIES PROVIDE DOMESTIC PARTNERSHIP BENEFITS
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Fortune 20 Fortune 100 Fortune 500 Fortune 1000 AmLaw 200
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2009 Interim................................ 17 (85%) 83 (83%) 293 (59%) 404 (40%) 153 (77%)
2008 Total.................................. 17 (85%) 83 (83%) 286 (57%) 390 (39%) 146 (75%)
2003 Total.................................. 64 (64%) 200 (40%)
----------------------------------------------------------------------------------------------------------------
Source: Human Rights Campaign, ``How Fortune-Ranked Companies Stack Up On LGPT Workplace Policies'' (Sept. 21,
2009), http://www.hrcbackstory.org/2009/09/how-fortune-ranked-companies-stack-up-on-lgbt-workplace-policies;
entered into the record of the hearing before the Senate Committee on Homeland Security and Governmental
Affairs, ``Domestic Partner Benefits: Fair Policy and Good Business for the Federal Government,'' S. Hrg. 111-
758 (October 15, 2009), at page 25.
2. Federal employees in same-sex domestic partnerships and their
partners are ineligible under statute from participating in
many important benefit programs
Unlike the many non-federal employers that offer domestic
partnership benefits to their employees, federal agencies
largely lack statutory authority to do so. Among the most
important benefits that help many employees care for their
families are health, dental, and vision insurance, family and
medical leave, workers' compensation, and retirement benefits.
Because these and several other benefits for federal employees
are limited to the employees and their spouses, children,
stepchildren, and others in specific relationships specified in
statute, federal employees in same-sex domestic partnerships
cannot turn to these benefit programs for help in caring for
their partners or (unless the employee can legally adopt them)
the children of their partners.
One of the most important benefits to help employees take
care of their families is health insurance, and federal
employees can obtain family coverage under the Federal Employee
Health Benefits (FEHB) Program and related dental and vision
programs for a spouse, a dependent child, and a dependent
stepchild. However, statutory provisions specify the family
members that may be covered by these programs, including
employees' spouses and employees' children, adopted and foster
children, and stepchildren,\11\ and federal employees in same-
sex domestic partnerships therefore cannot obtain coverage for
their partners or the children of their partners.
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\11\See 5 U.S.C. 8901(5), 8905(a) (FEHB); 5 U.S.C. 8951(2),
8956(a), 8981(2), 8986(a) (Federal Employees Dental and Vision
Insurance Program, or FEDVIP).
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A second important benefit is the survivor annuity, granted
to certain family members when retired federal employees
predecease them. Surviving spouses, former spouses, and
dependent children and stepchildren may have statutory rights
to a survivor annuity under various circumstances, but, except
in limited circumstances, those rights do not cover surviving
partners, former partners, or children of partners.\12\ Also,
when federal employees die from work-related injuries, a
surviving spouse, child, stepchild, or parent may be entitled
to workers' compensation benefits under the Federal Employees'
Compensation Act (FECA), but surviving partners or children of
partners have no such statutory compensation rights.\13\
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\12\See 5 U.S.C. 8341, 8441-8445. As discussed in notes 28-29 below
and accompanying text, employees in same-sex domestic partnerships may
sometimes be able to provide a survivor annuity to a same-sex domestic
partner or to the dependent child of a partner under the ``insurable
interest'' provisions of the federal annuity programs. However, married
employees can provide their spouses and stepchildren the right to a
survivor annuity under a broader range of circumstances and often of a
larger size.
\13\See 5 U.S.C. 8101(9), 8109, 8133.
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Under those portions of the Family and Medical Leave Act
(FMLA) that are generally applicable to federal agencies, a
federal employee is entitled to take up to 12 weeks of unpaid
leave per year (and may substitute accrued or accumulated
annual leave or sick leave for the unpaid leave) to care for a
spouse, child, or parent with a serious health condition. But
if the employee's same-sex domestic partner becomes seriously
ill, the employee is not entitled to take FMLA leave to care
for the partner.\14\ Several other benefit programs for federal
employees--group life insurance,\15\ reimbursement for certain
travel and relocation expenses,\16\ and death gratuities for
civilians serving with Armed Forces in military
operations\17\--likewise have statutory provisions on
eligibility that prevent federal employees in same-sex
partnerships from fully participating.
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\14\See 5 U.S.C. 6381-6382. These provisions establish minimum
rights, and, as discussed in notes 33-34 below and accompanying text,
the U.S. Forest Service (USFS), under an agreement with the employees'
union, recently initiated a program modeled on the FMLA under which
bargaining-unit employees may use up to 12 weeks of leave each year to
care for their domestic partners with serious health conditions. Also,
as discussed in note 32 below, OPM recently covered same-sex domestic
partners and their children under a government-wide program allowing
employees to take up to 24 hours of leave without pay (LWOP) per year
to help with family members' routine medical, educational, and other
needs.
\15\Under the Federal Employee Group Life Insurance (FEGLI)
program, a participating employee may elect any beneficiary, including
a same-sex partner; but if no beneficiary is designated, proceeds are
paid to a surviving spouse, children or other descendents, or parents
of the deceased, or to the employee's heirs, but not to the surviving
same-sex domestic partner. See 5 U.S.C. 8705.
\16\When Federal employees are transferred or placed on an extended
assignment, they can obtain reimbursement for travel with their spouse
to line up housing in the new location, but not for such travel with
their same-sex partner. See 5 U.S.C. 5724a, 5737.
\17\When a married federal employee dies of injuries incurred in
connection with civilian service with an Armed Force in a military
operation, the government pays up to $100,000 to the surviving spouse,
but if the employee who died was in a same-sex domestic partnership,
the partner receives nothing. See 5 U.S.C. 8102a.
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3. Certain benefits, authorized under more flexible statutory
authorities, are being extended to federal employees in same-
sex domestic partnerships
A few federal agencies involved in financial services, a
sector where competition for talent is especially fierce, have
been granted some statutory flexibility to establish benefit
packages for their own employees and have used that flexibility
to extend limited benefits for employees in domestic
partnerships. For example, the Treasury Department's Office of
the Comptroller of the Currency (OCC) states in its employee-
recruitment materials that employees with domestic partners and
the children of domestic partners are eligible to receive a
health insurance subsidy if the partners and children are not
eligible for group health insurance through another employer or
under another group-sponsored plan.\18\ They also are eligible
for coverage under the OCC's dental, vision, and group life
insurance programs at little or no cost to the employee, and
may receive the same allowances and benefits upon relocation
that employees with spouses and children receive.\19\ The
Federal Reserve Board likewise promotes to potential recruits
that it ``provides limited health, dental, and vision benefits
to domestic partners.''\20\ And Federal Deposit Insurance
Corporation (FDIC) employees with domestic partners are
eligible for a health insurance subsidy, coverage under the
FDIC's dental, vision, dependent life insurance, and business
travel accident insurance plans, and allowances upon
relocation.\21\
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\18\U.S. Department of the Treasury, Office of the Comptroller of
the Treasury, Careers at the OCC, Benefits, http://www.occ.gov/about/
careers/benefits.html.
\19\Id.
\20\Board of Governors of the Federal Reserve System, Careers at
the Federal Reserve, Benefits (last update April 28, 2009), http://
www.federalreserve.gov/careers/benefits.htm.
\21\FDIC, New Employee Resources, Domestic Partner Program (Revised
03/14/2010), http://www.fdic.gov/newemployee/PDF/
domesticpartnerprogramsummary.pdf.
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In addition, some programs offering benefits to federal
employees--some government-wide and others agency-specific--are
not statutorily limited to specific family members, and, in a
June 17, 2009 memorandum to all departments and agencies, the
President directed agencies to extend the same benefits to
federal employees' same-sex domestic partners as the agency
currently gives to spouses where such extension of benefits was
permissible under the law.\22\ The memorandum, stating that
extending certain benefits would help agencies compete with the
private sector in recruiting and retaining talent, noted that
the Secretary of State, who oversees the Foreign Service, and
the Director of the Office of Personnel Management (OPM), who
oversees the civil service, had already identified areas where
domestic partner benefits could be provided. The memorandum
directed the Secretary and the Director to extend the benefits
that they had identified, and it also instructed all agencies
to identify additional authorities under which the agencies can
extend other benefits to same-sex partners of federal employees
and to report back to OPM.
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\22\The President, Memorandum on Federal Benefits and Non-
Discrimination (June 17, 2009), Daily Compilation of Presidential
Documents, 2009 DCPD No. 00477, http://www.gpoaccess.gov/presdocs/2009/
DCPD-200900477.pdf.
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Following up on the Presidential memorandum, the Secretary
of State announced on June 18, 2009, that ``the Department of
State is extending the full range of legally available benefits
and allowances to same-sex domestic partners of members of the
Foreign Service sent to serve abroad.''\23\ Also, the Director
of OPM made regulatory changes to two civil service benefit
programs, allowing domestic partners of federal employees to
apply for coverage under the Federal Long Term Care Insurance
Program (FLTCIP)\24\ and clarifying that federal employees'
domestic partners, their children, and their parents may be
considered for determining employee eligibility to take sick
leave and funeral leave and to receive donated annual leave
under leave-transfer and leave-bank programs.\25\
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\23\Hillary Rodham Clinton, Secretary of State, ``Benefits for
Same-Sex Domestic Partners of Foreign Service Employees'' (Washington,
DC, June 18, 2009), http://www.state.gov/secretary/rm/2009a/06//
125083.htm. Among the benefits provided for declared same-sex partners
of employees serving oversees will be: diplomatic passports; the
inclusion on employee travel orders; inclusion in housing allocations
and payment of overseas differentials; the use of medical facilities at
posts abroad; medical evacuation from posts abroad; emergency travel
for the partners to visit gravely ill or injured employees; emergency
evacuation from posts abroad; and training at the Foreign Service
Institute.
\24\U.S. OPM, Final Rule, ``Federal Long Term Care Insurance
Program: Eligibility Changes,'' 75 Fed. Reg. 30267 (June 1, 2010)
(amending 5 C.F.R. Part 875), http://www.gpo.gov/fdsys/pkg/FR-2010-06-
01/pdf/2010-13015.pdf.
\25\U.S. OPM, Final Rule, ``Absence and Leave'' 75 Fed. Reg. 33491
(June 14, 2010) (amending 5 C.F.R. part 630), http://www.gpo.gov/fdsys/
pkg/FR-2010-06-14/pdf/2010-14252.pdf. The regulatory changes allow the
receipt of donated annual leave under the Voluntary Leave Transfer,
Leave Bank, and Emergency Leave Transfer Programs. The regulation
covers both same-sex and opposite-sex domestic partners.
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The President issued a second memorandum, on June 2, 2010,
requiring agencies to extend several additional kinds of
benefits to employees in same-sex partnerships.\26\
Specifically, the President directed the OPM Director to
clarify that employees' same-sex domestic partners and the
partners' children qualify for a variety of benefits that are
available to spouses and their children.\27\ He also told the
OPM Director to publish a rule change making it easier for
employees, if they are in good health when they retire, to
grant their same-sex domestic partners the right to a survivor
annuity under the ``insurable interest'' provisions of federal
annuity programs.\28\ (Even with this change, employees in
domestic partnerships will only be able to provide survivor
annuities to their partners under far narrower circumstances,
and often in smaller amounts, than married employees.\29\)
Moreover, the Presidential memorandum requires the
Administrator of General Services to clarify the scope of
coverage of the Federal Travel Regulations so that employees
may obtain reimbursement for appropriate travel, relocation,
and subsistence expenses for a domestic partner and partner's
children.\30\
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\26\The President, Memorandum on Extension of Benefits to Same-Sex
Domestic Partners of Federal Employees (June 2, 2010) (``2010
Presidential Memorandum''), Daily Compilation of Presidential
Documents, 2010 DCPD No. 00450, http://www.gpoaccess.gov/presdocs/2010/
DCPD-201000450.pdf.
\27\Id., sections 1(a)(i)-(iii), (v), (vii).
\28\Id., section 1(a)(iv). Under current law, if an employee can
demonstrate good health and can demonstrate that another individual has
an ``insurable interest'' in the employee (i.e., that the individual
could reasonably expect to derive financial benefit from the employees'
continued life), the employee may elect to receive a reduced annuity in
order to provide a survivor annuity to the other individual. See 5
U.S.C. Sec. Sec. 8339(k)(1), 8341(c), 8420, 8444; OPM, Retirement
Information and Services, ``Survivor Benefit Elections, Court-Ordered
Benefits, and Children's Benefits'' (``OPM, Survivor Benefit
Elections''), http://www.opm.gov/retire/faq/post/faq2.asp. After OPM
fulfills the requirement in the 2010 Presidential Memorandum, same-sex
domestic partners of retiring employees would be presumed to have an
insurable interest in the employee.
\29\Married employees' spouses and spouses' children can become
entitled to a survivor annuity under a broader range of circumstances,
and often of a larger size, than employees' same-sex domestic partners
and partners' children. For example, when married employees die after
retirement or after a significant period of service as an employee, the
surviving spouse is generally entitled to a survivor annuity. See 5
U.S.C. Sec. Sec. 8341, 8442, 8445; OPM, ``Survivor Benefit Elections,''
note 28 above. By contrast, even after the OPM Director has added same-
sex domestic partners to the list of individuals presumed to have an
insurable interest, an employee who dies before retirement or who is
not in good health at retirement would not be able to designate the
domestic partner as a person entitled to a survivor annuity. Moreover,
even if an employee is in good health at retirement and designates the
domestic partner to receive a survivor annuity, the size of both the
retiree's annuity and the domestic partner's survivor annuity may be
significantly reduced if the employee is more than a few years older
than the domestic partner.
\30\June 2010 Presidential Memorandum, note 26 above, section 1(b).
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Pursuant to this second memorandum, the OPM Director
distributed guidance to all departments and agencies to ensure
consistent and appropriate implementation of domestic partner
benefits government-wide.\31\ The OPM memorandum provided a
uniform definition of ``domestic partner'' and listed the kinds
of benefits that many agencies provide to their employees'
spouses and their children and that, under the presidential
memorandum, the agencies must extend to same-sex domestic
partners and their children as well. The list includes benefits
available at many agencies, such as credit union membership,
access to fitness facilities, and counseling, as well as more
specialized benefits that only certain agencies provide, such
as access to medical treatment, reimbursement of health
insurance premiums, life insurance for dependents, and
employment opportunities for spouses when employees are
transferred.
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\31\OPM Director John Berry, Memorandum for Heads of Executive
Departments and Agencies, ``Implementation of the President's
Memorandum Regarding Extension of Benefits to Same-Sex Domestic
Partners of Federal Employees'' (June 2, 2010), http://www.chcoc.gov/
Transmittals/TransmittalDetails.aspx?TransmittalID=2982.
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Under an interpretation of applicable FMLA provisions that
the OPM Director issued on August 31, 2010, a federal employee
who will share in raising a child born to or adopted by the
employee's domestic partner may take FMLA leave following the
birth or adoption of the child, and a federal employee who
provides care for such a child may take FMLA leave if the child
has a serious health condition.\32\ Also, the U.S. Forest
Service (USFS) recently began a new program, modeled on the
FMLA, providing leave benefits to employees in same-sex
domestic partnerships.\33\ Under the new program, which was
negotiated with the USFS employees' union, employees in
bargaining units will be able to take up to 12 weeks of unpaid
or accrued leave each year to care for a domestic partner with
a serious health condition.\34\
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\32\OPM Director John Berry, Memorandum for Chief Human Capital
Officers, ``Interpretation of Son or Daughter' Under the Family and
Medical Leave Act'' (Aug. 31, 2010), http://www.chcoc.gov/transmittals/
TransmittalDetails.aspx?TransmittalID=3122. The OPM Director's
interpretation applies to both same-sex and opposite-sex partners, and
is based on the recent Administrator's Interpretation No. 2010-3,
published by the U.S. Department of Labor, Wage and Hour Division,
interpreting provisions of the FMLA and of the Department's FMLA
regulations that apply generally to the private sector and to other
employees outside of the federal civil service, http://www.dol.gov/whd/
opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.pdf.
Moreover, the OPM Director on September 10 issued amended guidance
on the government's ``24-Hour LWOP Family Support Policy.'' Under a
Presidential memorandum issued in 1997, federal agencies are encouraged
to allow their employees to schedule up to 24 hours of leave without
pay (LWOP) each year to participate in school activities for children,
to accompany their children to routine medical or dental appointments,
and to help elderly relatives get routine medical and dental care and
other services. The June 2010 Presidential Memorandum instructed the
OPM Director to issue amended guidance so that the 1997 policy may be
used to meet the needs of a same-sex domestic partner and a partner's
children. The OPM Director issued such guidance on September 10, 2010.
See OPM Director John Berry, Memorandum for Chief Human Capital
Officers, ``Extension of 24-Hour LWOP Family Support Policy to Same-Sex
Domestic Partners of Federal Employees'' (Sept. 10, 2010), http://
www.chcoc.gov/transmittals/TransmittalDetails.aspx?TransmittalID=3146.
\33\See Emily Long, ``Domestic Partner Benefits Get Another
Boost,'' GOVERNMENTEXECUTIVE.COM (Oct. 27, 2010), http://
www.govexec.com/dailyfed/1010/102710l1.htm; NFFE, ``Master Agreement
Focus--Leave (Article 20),'' The Voice: The Official Newsletter of the
Forest Council (FSC) (Fall Issue, Oct., 2010), at page 3, http://
www.nffe-fsc.org/documents/voice/The_Voice_Fall_Issue_v.6.pdf.
\34\Under the USFS agreement, both same-sex and opposite-sex
domestic partners are covered. The agreement also allows an employee to
use leave to care for the parents of a domestic partner, the domestic
partner of other close relatives, and any other individual related by
blood or affinity whose relationship to the employee is the equivalent
of a family relationship.
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While these Executive actions represent significant steps,
such actions cannot, by statute, allow federal employees in
domestic partnerships and their partners to have full access to
health insurance, survivor annuities, workers' compensation,
and other key employee benefits. For this reason, the
President, in issuing each of his memoranda, recognized that
legislation would be needed and called upon the Congress to
enact the Domestic Partnership Benefits and Obligations
Act.\35\
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\35\The President, Statement on the Extension of Benefits to Same-
Sex Domestic Partners of Federal Employees (June 2, 2010), Daily
Compilation of Presidential Documents, 2010 DCPD No. 00449, http://
www.gpoaccess.gov/presdocs/2010/DCPD-201000449.pdf; the President,
Statement on Signing a Memorandum on Federal Benefits and Non-
Discrimination and Support of Domestic Partners Benefits and
Obligations Legislation (June 17, 2009), Daily Compilation of
Presidential Documents, 2009 DCPD No. 00476 http://www.gpoaccess.gov/
presdocs/2009/DCPD-200900476.pdf.
---------------------------------------------------------------------------
B. DOMESTIC PARTNERSHIP BENEFITS AND OBLIGATIONS LEGISLATION FOR
FEDERAL EMPLOYEES
To help the federal government catch up with major national
employers, Senator Lieberman and Senator Collins introduced the
Domestic Partnership Benefits and Obligations (DPBO) Act (S.
1102). Thirty other Senators currently cosponsor the bill.
S. 1102 would amend applicable statutory provisions to make
federal employees in same-sex domestic partnerships and their
partners eligible for the same employee benefits and subject to
the same employee obligations as married employees and their
spouses. The bill uses a strict definition of domestic partner,
requiring those seeking benefits to certify (subject to
criminal penalties if they submit false information) that they
and their domestic partners have a common residence and, among
other things, share responsibility for a significant measure of
each other's welfare and financial obligations. The bill makes
employees in domestic partnerships eligible for all benefits
available to married federal employees, including health
insurance, retirement benefits, workers' compensation, and
family and medical leave. Under the legislation, employees who
apply for domestic partner benefits would also have to comply
with obligations that currently relate to married employees and
their spouses, such as financial disclosure requirements,
conflict of interest rules, and nepotism restrictions. The bill
does not alter the definition of marriage or spouse as
established under the Defense of Marriage Act (DOMA), which
establishes that these terms in any federal statute or
regulation can mean only an opposite-sex union or a person of
the opposite sex who is a husband or wife.\36\ Nothing in S.
1102 would cause a same-sex marriage or a same-sex spouse
recognized by any State's law, or a domestic partnership or a
domestic partner recognized under S. 1102, to be deemed a
``marriage'' or a ``spouse'' within the meaning of any federal
statute or regulation.
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\36\1 U.S.C. Sec. 7. This provision is further discussed in section
II.C.3, below, of this report.
---------------------------------------------------------------------------
To examine the proposed DPBO Act, the Committee held a
hearing on September 24, 2008, in the 110th Congress (2008
Hearing),\37\ and a second hearing during the 111th Congress,
on October 15, 2009 (2009 Hearing).\38\ At these hearings, the
Committee heard testimony and received statements from major
national corporations, federal employees and their
representatives, elected and appointed officials of the federal
government, and advocacy and research organizations.
---------------------------------------------------------------------------
\37\Hearing before the Committee on Homeland Security and
Governmental Affairs, ``Domestic Partner Benefits for Federal
Employees: Fair Policy and Good Business,'' S. Hrg. 110-944 (September
24, 2008) (``2008 Hearing''), http://frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi? dbname= 110_senate_hearings&docid=f:45581.wais.pdf. Some
hearing materials are also available at http://hsgac.senate.gov/public/
index.cfm?FuseAction=Hearings.Hearing&Hearing_ ID=4567a0c5-c026-461d-
8b28-d30898f5e3d9. The 2008 Hearing discussed the bill introduced in
the 110th Congress (S. 2521), which was identical to this Congress's S.
1102.
\38\Hearing before the Committee on Homeland Security and
Governmental Affairs, ``Domestic Partner Benefits: Fair Policy and Good
Business for the Federal Government,'' S. Hrg. 111-758 (October 15,
2009) (``2009 Hearing''). Some hearing materials are available at
http://hsgac.senate.gov/public/
index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=d5347e63-e680-4ebf-
8b9d-5eb5f8cd5e79.
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The testimony showed that employers offer domestic partner
benefits for two basic reasons: it is a good business decision,
giving employers an advantage in attracting and retaining
employees in the diverse contemporary workforce, and it is the
right and fair thing to do.\39\
---------------------------------------------------------------------------
\39\See also Employee Benefit Research Institute, Facts from EBRI,
note 3 above.
---------------------------------------------------------------------------
1. Offering domestic partner benefits would be a good business decision
for the federal government, as it is for non-federal employers
a. Recruitment and retention
The primary reason why employers offer domestic partnership
benefits is to attract and retain employees,\40\ and witnesses
before this Committee described how such benefit programs
provide a competitive advantage to their companies. Testifying
for IBM, Yvette C. Burton told the Committee that ``[f]or over
a decade, IBM has used domestic partner benefits as a
differentiating and competitive method to attract
employees.''\41\ For Dow Chemical Company, William H. Hendrix,
III, explained in similar terms--
---------------------------------------------------------------------------
\40\See Id.; Hewitt Associates, ``Benefit Programs for Domestic
Partners & Same-Sex Spouses,'' Hewitt Associates, Lincolnshire, IL
(July 2005).
\41\Statement of Yvette C. Burton, Ph.D., Global Business
Development Executive, GLBT and Human Capital Management Segments, IBM,
entered into the record of the 2008 Hearing, note 37 above, at pages
34, 37.
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With a shrinking and ever more diverse talent pool--
particularly in the sciences and engineering--it is
essential for us to actively include everyone to ensure
we attract, develop and advance the very best talent
available in the marketplace.\42\
---------------------------------------------------------------------------
\42\Statement of William H. Hendrix, Ph.D. Global Leader, Gays,
Lesbians and Allies at Dow, Dow Chemical Company, at page 2, entered
into the record of the 2009 Hearing, note 38 above, at page 85.
---------------------------------------------------------------------------
``When we discuss Domestic Partnership policies in the
workplace,'' Hendrix concluded, ``we do so knowing that this
policy gives us an advantage.''\43\
---------------------------------------------------------------------------
\43\Id.
---------------------------------------------------------------------------
The General Electric Company (GE) submitted a letter for
the 2008 Hearing that described specific statements by gay and
lesbian university students who were about to enter the labor
market and ``expressed that while a record of innovation and
strong culture were key drivers of an employment decision, the
lack of domestic partner benefits would be an automatic
disqualifier.''\44\ The letter also said that gay and lesbian
employees already at GE ``frequently echo this sentiment,''
explaining, ``While most do not participate in these benefits
based upon their own individual family status, many indicate
that it is a key reason why they remain at GE.''\45\
---------------------------------------------------------------------------
\44\Letter from Deborah A. Elam, Vice President and Chief Diversity
Officer, Corporate Human Resources, General Electric Company (September
17, 2008) (``GE Letter''), entered into the record of the 2008 Hearing,
note 37 above, at pages 147, 148.
\45\Id.
---------------------------------------------------------------------------
A survey of State governments that offer domestic partner
benefits to employees, prepared by the Center for American
Progress, likewise found that offering these benefits yield
advantages in recruitment and retention.\46\
---------------------------------------------------------------------------
\46\Center for American Progress, ``One Simple Step for Equality:
States Prove that the Federal Government Can Offer Domestic Partner
Benefits with Ease,'' note 7 above.
---------------------------------------------------------------------------
The private-sector witnesses also informed the Committee
that the competitive advantage from offering domestic
partnership benefits goes beyond recruits and employees who are
gay or lesbian. Dr. Hendrix testified about Dow's experience:
``We have had potential employees who are heterosexual and
married express that they felt DP benefits were a good
indicator of how the company would treat ALL employees within
the workforce.''\47\ Hendrix further described that other
companies reported similar findings:
---------------------------------------------------------------------------
\47\Response from William H. Hendrix, Dow Chemical Company, to
question #1, Post-Hearing Question Submitted from Senator Tom Carper
for the Record of the 2009 Hearing, note 38 above, at page 106
(emphasis in original).
---------------------------------------------------------------------------
Many companies report that the implementation of
domestic partner benefits helps attract and retain
critical talent from non-gay and lesbian talent. These
particular candidates have reported that the existence
of a domestic partner benefits policy shows that the
company values and truly believes in a workplace that
respects and protects all employees. It also shows our
commitment to including diverse perspectives. This
trend is especially prevalent among younger candidates
of the workforce--a segment crucial to the future
demographics of any employer.\48\
---------------------------------------------------------------------------
\48\Statement of William H. Hendrix, Dow Chemical Company, note 42
above, at page 87.
---------------------------------------------------------------------------
Dr. Burton testified likewise that IBM found its domestic
partner benefits help attract and retain heterosexual talent--
particularly among younger recruits and employees.\49\
---------------------------------------------------------------------------
\49\Statement of Yvette C. Burton, IBM, note 41 above, at pages 38-
39.
---------------------------------------------------------------------------
Dr. Hendrix also explained that Dow's domestic partner
benefit policy is a valuable tool in recruiting for key mid-
career and management positions.\50\ For example, Dow recently
hired a mid-level scientist, who had critical skills that Dow
needed for a business project, and whom Dow was able to lure
away from a small start-up that lacked domestic partner
benefits partly because the recruit was attracted to such
benefits at Dow.\51\ Dow also found its benefit policy was of
paramount importance in convincing another recruit, who
recently relocated from a California university to Dow's
Midland, Michigan, facility because the employee would not have
wanted to move if the relocation had left his partner without
health insurance coverage.\52\
---------------------------------------------------------------------------
\50\Response from William H. Hendrix, Dow Chemical Company, to
question #1, Post-Hearing Question Submitted from Senator Joseph I.
Lieberman for the Record of the 2009 Hearing, note 38 above, at page
104.
\51\Id.
\52\Id.
---------------------------------------------------------------------------
The Committee also heard testimony from federal officers
and employees and employee representatives, who provided their
views on the advantages that the federal government could gain
from offering domestic partner benefits--advantages of the same
kind as those that witnesses from the private sector described.
OPM Director John Berry testified at the Committee's 2009
hearing that the government's failure to provide benefits to
employees with same-sex domestic partners ``directly undermines
the Federal Government's ability to recruit and retain the
Nation's best workers.''\53\ Berry based his opinion on the
experience of employers in both the public and private sector
who have found domestic partner benefits an effective tool for
recruitment and retention, as well as the prevalence of these
benefits in the private sector, especially among large
employers.\54\ From this, he concluded,
---------------------------------------------------------------------------
\53\Statement of John Berry, Director, U.S. Office of Personnel
Management (OPM), at page 2, entered into the record of the 2009
Hearing, note 38 above, at page 36.
\54\Response by OPM Director John Berry to question #1, Post-
Hearing Questions Submitted from Senator Lieberman for the Record of
the 2009 Hearing, note 38 above, at page 95.
---------------------------------------------------------------------------
If we fail to offer comparable job benefits to all
our employees, the Federal Government will have a more
difficult time competing effectively with other large
employers for talent. . . . Offering domestic partner
benefits will help address employment gaps and assist
agencies in recruitment and retention.\55\
---------------------------------------------------------------------------
\55\Id.
---------------------------------------------------------------------------
The perspective of an experienced agency manager was
provided at the Committee's 2008 hearing by Frank A. Hartigan,
a Deputy Regional Director with 24 years' experience at the
Federal Deposit Insurance Corporation (FDIC).\56\ Mr. Hartigan,
who testified on his own behalf, and who also is gay,
reaffirmed that ``[t]he lack of domestic partner benefits puts
the government at a distinct disadvantage when trying to
attract and retain a qualified workforce,'' and he explained
how offering such benefits is particularly important for agency
recruitment and retention of younger candidates: ``Young gay
and lesbian individuals certainly consider domestic partner
benefits when deciding between potential jobs and employers.
They are much more enlightened to the issue of domestic partner
benefits than I was when I entered the federal workforce.''\57\
---------------------------------------------------------------------------
\56\Statement of Frank A. Hartigan, Deputy Regional Director, San
Francisco Regional Office of the Division of Supervision and Consumer
Protection, Federal Deposit Insurance Corporation, testifying on his
own behalf, entered into the record of the 2008 Hearing, note 37 above,
at page 53.
\57\Id. at page 55.
---------------------------------------------------------------------------
Hartigan, from his perspective as a federal manager,
reported observations similar to those of private-sector
witnesses (noted above),\58\ that offering domestic partner
benefits is particularly valuable for attracting and hiring
younger workers, including both gay or lesbian and heterosexual
candidates. And strengthening the ability to attract and hire
younger workers is especially critical for the federal
government. As this Committee recently concluded in a different
context, ``the government must hire a large number of entry-
level employees to create a career pipeline, especially to fill
the many openings impending retirements will soon create,'' but
the current federal hiring process is weakest when it comes to
recruiting and hiring younger workers.\59\
---------------------------------------------------------------------------
\58\See text accompanying notes 48-49 above.
\59\Senate Committee on Homeland Security and Governmental Affairs,
Report to accompany S. 732, ``Federal Hiring Process Improvement Act of
2010,'' S. Rept. 111-184 (May 12, 2010), at page 3.
---------------------------------------------------------------------------
The federal government also has a continuing need to
attract mid-career candidates in highly skilled and specialized
fields, and, as Dr. Hendrix illustrated with examples involving
Dow Chemical Company's successful hiring efforts,\60\ the
ability to offer domestic partner benefits can serve as an
important recruitment tool when targeting particular
individuals. Colleen M. Kelley, National President of the
National Treasury Employees Union (NTEU), observed in testimony
before the Committee that many desirable mid-career candidates
``are part of a settled domestic partner couple'', and ``[t]o
ask a highly qualified candidate to relocate and to expect the
candidate's domestic partner to leave his or her employment and
employer sponsored health insurance to move to a new city is
simply a recipe to miss out on the best and most able
candidates.''\61\
---------------------------------------------------------------------------
\60\See text accompanying notes 50-52 above.
\61\Statement of Colleen M. Kelley, National President, NTEU,
entered into the record of the 2008 Hearing, note 37 above, at pages
41, 46.
---------------------------------------------------------------------------
Finally, Hartigan--testifying before the FDIC started
providing domestic partner benefits--gave the following
illustration of how the lack of such benefits significantly
harmed his agency by causing the loss of a highly valuable
employee:
Another manager recently told me about a woman who
left the government for private-sector employment,
specifically because of the lack of domestic partner
benefits. The employee left the FDIC, taking the
training and expertise that was paid for by the agency
to a private-sector company that offers domestic
partner benefits. The federal government lost a very
smart and valuable employee in this situation.\62\
---------------------------------------------------------------------------
\62\Written statement of Frank A. Hartigan, note 56 above, at page
57.
---------------------------------------------------------------------------
b. Productivity
Beyond the value for recruitment and retention, businesses
have found that offering domestic partner benefits helps
improve the existing workforce's productivity. Research shows
that employee benefits can provide concrete value to the
company by helping employees avoid financial concerns that harm
productivity through absenteeism and ``presenteeism.''\63\ An
employee testimonial, illustrating how a lack of domestic
partner benefits could undermine productivity, came to the
Committee in a statement from the Chubb Corporation (a leading
insurance and financial corporation):
---------------------------------------------------------------------------
\63\See MetLife, Inc., 8th Annual Study of Employee Benefit Trends:
Findings from the National Survey of Employers and Employees (2010), at
page 10, 32, http://metlife.com/assets/ institutional/services/
insights-and-tools/ebts/Employee-Benefits-Trends-Study.pdf. The term
``presenteeism,'' analogous to absenteeism, is most often used to refer
to the problem of workers' being on the job but, because of illness or
other medical conditions, not fully functioning. However, as in the
MetLife survey and in the testimony of Frank Hartigan at the September
2008 Hearing, the term is also used to refer to lost productivity due
to employees' being on the job but not fully functioning because of
financial or other concerns.
---------------------------------------------------------------------------
For most of the 12 years since Chubb began offering
DPB [domestic partnership benefits], my partner (for
the past 15 years) and I have not had the need to
utilize them--but there have been two occasions which
were exceptions. . . . My partner has various health
issues which require ongoing prescriptions that would
cost thousands of dollars each month if he had no
medical coverage, and so the security of being able to
add him to my coverage for brief periods of time was
critical to both our financial and emotional well
being. It is not too much of a leap to be able to see
how important the availability of such benefits can be
to an employee's overall productivity.\64\
---------------------------------------------------------------------------
\64\Statement of Kathleen Marvel, Senior Vice President and Chief
Diversity Officer, the Chubb Corporation, entered into the record of
the 2008 Hearing, note 37 above, at pages 149, 151-152.
---------------------------------------------------------------------------
Companies have also found that offering same-sex domestic
partnership benefits helps them in less tangible, but
important, ways by enabling gay and lesbian employees to be
more fully engaged in their work and committed to the company.
Dr. Hendrix explained that one reason Dow's GLBT\65\ policies,
including domestic partner benefits, have been good for the
workplace is that employees ``know that they can perform their
jobs openly and with full support of their family situation
without fear of repercussion and therefore have more reason to
be committed to the company in return.''\66\ Dr. Burton
expanded on this same point:
---------------------------------------------------------------------------
\65\The acronym ``GLBT'' or ``LGBT'' refers collectively to gay,
lesbian, bisexual, and transgendered.
\66\Statement of William H. Hendrix, Dow Chemical Company, note 42
above, 2009 Hearing at page 86.
---------------------------------------------------------------------------
Unfortunately, many GLBT employees spend a good deal
of their workdays concealing their orientation from co-
workers for fear of backlash or adverse impact to
career advancement. The absence of domestic partner
benefits contributes to this problem by signaling to
all employees that GLBT employees are not equally
valued in the workplace. . . .\67\
---------------------------------------------------------------------------
\67\Statement of Yvette C. Burton, IBM, note 41 above, at page 38.
---------------------------------------------------------------------------
To address this kind of situation, Dr. Burton has found
that offering such benefits ``can improve low productivity and
morale caused by inequitable workplace practices, thereby
creating a positive work environment.''\68\ GE, which offers
domestic partner benefits, likewise described the experience of
its own gay and lesbian employees who reported that ``the
benefits are not only a protection of the health and welfare of
their current and future families, but representative of a
culture where they can bring their whole selves to work
enabling performance and innovation.''\69\
---------------------------------------------------------------------------
\68\Id.
\69\GE Letter, note 44 above, 2008 Hearing at page 148.
---------------------------------------------------------------------------
Hartigan illustrated how the failure to provide benefits
for employees' same-sex domestic partners affects productivity
within federal agencies by describing his and his colleagues'
actual observations. Like the witnesses from IBM and Dow,
Hartigan explained how a lack of domestic partner benefits
causes needless and harmful ``presenteeism'' and offered this
stark example:
A colleague of mine who has been with the government
for 23 years recently relocated. His partner of 18
years left his full-time position with benefits to
relocate with him. This particular employee has moved
several times for the agency to take positions of
increasing authority and responsibility. However,
during the most recent move, his partner experienced a
medical crisis requiring emergency treatment and
hospitalization. This occurred before the partner had
found new employment and benefits. The medical bills
resulting from the emergency totaled nearly $30,000.
Had the federal government offered domestic partner
medical benefits, the employee would have purchased
family coverage for his partner. This situation caused
the employee severe mental distress at a time when he
had just taken on a new and more challenging job.
Needless to say, he was not able to give his all to his
new position.\70\
---------------------------------------------------------------------------
\70\Statement of Frank A. Hartigan, note 56 above, 2008 Hearing at
page 63.
---------------------------------------------------------------------------
In this example, the employee agreed to the relocation and
he and his partner endured the costs. Frequently, though,
employees and their partners will not take such a risk,
resulting in another kind of harm to agency productivity: that
employees sometimes decline transfers to positions where their
talents would better serve the agency's mission, because
accepting the transfer would leave the domestic partner without
medical benefits. Hartigan described examples of this situation
as well, including the following experience of an FDIC
colleague. The employee and same-sex partner were considering
whether to relocate to enable the employee to take a job with
higher responsibility, but--
given the lack of domestic partner health insurance
benefits, this was never an option for them. Since the
partner could not be covered by FEHB insurance, they
did not want to take the risk of the partner being
unemployed, if only for a short time during the
relocation process.\71\
---------------------------------------------------------------------------
\71\Id. at pages 61-62.
---------------------------------------------------------------------------
2. Providing domestic partnership benefits to its employees, and
imposing domestic partnership obligations upon them, would be
the right and fair thing for the federal government to do
In addition to explaining why offering domestic partner
benefits would be a good business decision for the federal
government, witnesses explained why it would be the right thing
to do. For example, Sherry Bracey, the program manager of the
Women's and Fair Practices Department of the American
Federation of Government Employees, AFL-CIO, (AFGE)\72\
illustrated the unfairness of current law by comparing, in
detail, the benefits available to a high-performing and
valuable federal employee whose family consists of an opposite-
sex spouse and two stepchildren, compared with the benefits
available to a high-performing and valuable federal employee
whose family consists of a same-sex domestic partner and the
partner's two children.\73\
---------------------------------------------------------------------------
\72\AFGE is the largest federal-sector labor union, representing
more than 600,000 employees.
\73\Statement of Sherry Bracey, Program Manager, Women's and Fair
Practices Department, AFGE, entered into the record of the 2008
Hearing, note 37 above, at pages 48, 50-52.
---------------------------------------------------------------------------
Because DPBO legislation is not yet law, Bracey explained,
``the two workers will receive vastly different compensation in
return for their work for the federal government.''\74\ One
will be eligible for a family health-insurance FEHB plan,
partly paid for by the employing agency, covering all members
of the family, whereas the employee with the domestic partner
and children will be eligible for only single coverage under an
FEHB plan and will have to find coverage for the rest of the
family through the partner's employment, if any, or on the open
market.
---------------------------------------------------------------------------
\74\Id. at page 51.
---------------------------------------------------------------------------
If the married employee dies early, the surviving spouse
and children could be eligible for substantial benefits under
one of the retirement systems; in identical circumstances, the
other employee's surviving partner and children would receive
nothing. If the two employees became disabled, the one with a
spouse and stepchildren would receive substantially higher
disability benefits than the one with a partner and the
partner's children. If the two federal employees live until
after retirement and then die, the surviving spouse or
stepchild of the married employee would have a greater chance
of receiving a substantial survivor annuity than the surviving
partner and partner's child.
Hartigan, from his experience as a federal manager,
provided a concrete example of how this disparity affected a
federal employee and the employee's family. One of Hartigan's
colleagues at the FDIC had worked for the government for nearly
28 years, was in a long-term relationship with a same-sex
domestic partner and together with the partner was raising
three adopted children. The employee could obtain health
insurance under FEHB for himself and the adopted children, but
not for his partner. They therefore had to purchase separate
insurance for the partner from the private insurance market, at
a cost of nearly $9,000 per year. That insurance had such high
deductibles and other limits that the couple had to postpone
needed surgery for the partner because they could not afford
it. And this financial strain was imposed on a family
struggling to save for college.
Witnesses also described the pervasive disappointment and
unhappiness that such unfair treatment engenders in the federal
workforce. Ms. Kelley, the NTEU National President, told the
Committee that NTEU members\75\ frequently express concern at
union meetings, conferences and direct inquiries about the lack
of domestic partner benefits.\76\ She emphasized that
resolutions supporting such benefits have been debated and
passed at NTEU national conventions, where it was demonstrated
that ``the federal employee support for domestic partner
benefits is broad and nationwide.''\77\ ``And increasingly,''
she testified, ``particularly among new hires, it is not only
desire and need but there is an expectation of domestic partner
benefits from NTEU members who have received those benefits in
the private sector.''\78\
---------------------------------------------------------------------------
\75\NTEU is the largest independent federal-sector labor union,
representing over 150,000 workers at 31 different agencies.
\76\Statement of Colleen M. Kelley, NTEU, note 61 above, 2008
Hearing at page 44.
\77\Id.
\78\Id. (emphasis in original).
---------------------------------------------------------------------------
Sherry Bracey, testifying for AFGE, put these issues of
unfairness into the context of the merit system principle of
pay equity,\79\ which the federal system of personnel
management is bound to uphold:
---------------------------------------------------------------------------
\79\The Merit System Principles are codified at 5 U.S.C. Sec. 2301,
and the third such principle states, in relevant part: ``Equal pay
should be provided for work of equal value . . . .''
---------------------------------------------------------------------------
How can anyone square these facts with the merit
system principle of equal pay for substantially equal
work?
The answer is that one cannot justify discriminating
against federal employees who are in domestic
partnerships versus federal employees who are in
conventional marriages. All else equal, sexual
orientation should not form the basis of discrimination
in compensation. . . .\80\
---------------------------------------------------------------------------
\80\Statement of Sherri Bracey, AFGE, note 73 above, 2008 Hearing
at page 52.
---------------------------------------------------------------------------
``Perhaps the worst effect of the disparity,'' according to
Hartigan, ``is in how it can make the gay or lesbian employee
feel about their employer, about their colleagues, and about
themselves.''\81\ He explained:
---------------------------------------------------------------------------
\81\Statement of Frank A. Hartigan, note 56 above, 2008 Hearing at
page 63.
---------------------------------------------------------------------------
One of my colleagues expressed it this way, ``It is
difficult for me to understand why I would be punished,
when a married counterpart who was promoted at the same
time as me, is receiving full relocation benefits. Do
we really want productive government employees to feel
punished?''\82\
---------------------------------------------------------------------------
\82\Id.
---------------------------------------------------------------------------
Ms. Kelley, president of NTEU, also explained that ``[t]he
integrity of the civil service system demands not only that
there be fairness in benefits but that nepotism and other
abuses not be permitted because of an exemption of domestic
partners.''\83\ Accordingly, she emphasized to the Committee
the importance of bringing federal employees and their same-sex
domestic partners under ``the same duties, obligations and
ethics requirements that married federal employees are mandated
to follow such as anti-nepotism rules and financial disclosure
requirements.''\84\
---------------------------------------------------------------------------
\83\Statement of Colleen M. Kelley, NTEU, note 61 above, 2008
Hearing at page 42.
\84\Id.
---------------------------------------------------------------------------
C. CRITICISMS AND CONCERNS ABOUT S. 1102, AND RESPONSES TO THOSE
CRITICISMS AND CONCERNS
Criticisms and concerns about the DPBO legislation have
been persuasively answered.
1. S. 1102 would not open up employee benefit programs to fraud
Then-Deputy Director of OPM Howard C. Weizmann testified at
the 2008 Hearing about his concern that a benefits system based
on employees' self-reporting of domestic partner relationships
could invite fraudulent claims.\85\ As Weizmann explained it,
spousal benefits that OPM now provides are based on the
documentation of a state-sanctioned marriage, whereas providing
benefits to those in domestic partnerships certified by
affidavit under the DPBO legislation could lead to fraud and
abuse.\86\ Other witnesses, including current OPM Director
Berry in subsequent testimony, disagreed. After careful
consideration, the Committee has concluded there is no reason
to believe that S. 1102 would open up benefit programs to
fraud.
---------------------------------------------------------------------------
\85\Statement of Howard C. Weizmann, then-Deputy Director, OPM,
entered into the record of the 2008 Hearing, note 37 above, at pages
31, 32.
\86\Id.; oral testimony of then-Deputy Director of OPM Howard C.
Weizmann, at the 2008 Hearing, note 37 above, at page 18.
---------------------------------------------------------------------------
To further explore this issue, the Committee questioned
other witnesses about their experience in implementing domestic
partner benefit programs. At the 2008 Hearing, Dr. Burton of
IBM spoke about her own company's findings, and also those of
other companies that are clients of IBM and whose employee
benefits programs IBM supports. Based on this, Burton testified
that fraud has not been a problem for domestic partner benefit
programs using self-reported affidavits. In fact, according to
Burton, ``the risk studies since 1982 suggest that there is not
fraud. There is greater fraud in marriage licenses being
produced that are not valid than there are in affidavits.''\87\
---------------------------------------------------------------------------
\87\Oral testimony of Yvette C. Burton, IBM, at the 2008 Hearing,
note 37 above, at pages 26-27.
---------------------------------------------------------------------------
Dr. Hendrix of Dow Chemical told the Committee at the 2009
Hearing about his company's system under which employees self-
report the existence of a domestic partnership, a process
similar to what would be required under S. 1102, and he
testified that the company has had no issue with fraudulent
claims for benefits.\88\ Hendrix explained that a search was
undertaken in preparation for his testimony and that ``we could
not find a case [of fraud] in our search.''\89\
---------------------------------------------------------------------------
\88\Statement of William H. Hendrix, Dow Chemical Company, note 42
above, 2009 Hearing at page 88.
\89\Oral testimony of William H. Hendrix, Dow Chemical Company, at
the 2009 Hearing, note 38 above, at page 18.
---------------------------------------------------------------------------
A benefits system for federal employees based on self-
reporting of domestic partnership relationships would actually
have a lower risk of fraud than similar systems in the private
sector. OPM Director Berry emphasized that the federal
government is different from the private sector in that a
federal employee who makes misrepresentations of this sort is
subject to clear and specific criminal penalties for lying to
the federal government.\90\ Under the criminal code, submitting
a false claim or a false statement to any agency of the United
States is punishable by a fine and imprisonment for not more
than five years.\91\
---------------------------------------------------------------------------
\90\Oral testimony of OPM Director John Berry, at the 2009 Hearing,
note 38 above, at page 18.
\91\18 U.S.C. Sec. 287 (false, fictitious or fraudulent claims),
Sec. 1001 (false statements or entries).
---------------------------------------------------------------------------
S. 1102 itself includes strong anti-fraud provisions,
requiring both the employee and the other individual who seek
to qualify as domestic partners to execute an affidavit in
which they both attest that they satisfy all of the conditions
for eligibility. Moreover, the two individuals must state in
the affidavit that they understand that willful falsification
may lead to penalties including criminal penalties.
Director Berry further observed that the OPM Inspector
General regularly audits the civil service benefit programs to
be sure fraud is not occurring and that the Inspector General
would be assigned to identify any risk of fraud in the new
domestic partner program. Director Berry testified, in
conclusion, that he does not see the risk of fraud as a large
threat or as a reason not to proceed with the legislation.\92\
---------------------------------------------------------------------------
\92\Oral testimony of OPM Director John Berry, at the 2009 Hearing,
note 38 above, at page 18.
---------------------------------------------------------------------------
Another factor that would discourage fraudulent claims
under the legislation is that employees who establish domestic
partnerships would not only gain eligibility for certain
benefits; they would also assume the same obligations and
potential liabilities that apply to married federal employees
under current law. For example, employees with financial
disclosure obligations under the Ethics in Government Act\93\
would have to include information about their domestic
partners, as married employees must include information about
their spouses, and employees who establish domestic
partnerships would subject themselves to criminal conflict-of-
interest prohibitions against participating as a federal
employee in any matter in which the domestic partner has a
financial interest.\94\ More broadly, employees in domestic
partnerships would not be able to withdraw money or take loans
or distributions from their retirement savings accounts under
the Thrift Savings Plan without their partner's consent,\95\
and those in domestic partnerships at retirement would, unless
the partner consented otherwise, receive reduced annuities in
order to fund the partner's survivor annuity.\96\ Ceding such
rights to the domestic partner may be welcome to employees who
are genuinely committed to caring for the partner, but these
limitations would strongly discourage any employees in casual
relationships who might be tempted to falsely claim domestic-
partner status.
---------------------------------------------------------------------------
\93\Title I, Ethics in Government Act of 1978 (5 U.S.C. app.
Sec. 101 et seq.).
\94\18 U.S.C. Sec. 208.
\95\See 5 U.S.C Sec. 8435; Thrift Savings Plan, Changes in Your
Family Status: Marriage, Spouse's Rights, https://www.tsp.gov/
lifeevents/spouse/marriage.shtml#spouseRights.
\96\See 5 U.S.C. Sec. 8339, 8341, 8416, 8419; see also OPM,
Retirement Information and Services, ``Survivor Benefit Elections,
Court-Ordered Benefits, and Children's Benefits'', http://www.opm.gov/
retire/faq/post/faq2.asp (spouse is generally entitled to a survivor
annuity, with commensurate reduction in the employee's annuity, unless
the spouse consents to waive the right).
---------------------------------------------------------------------------
The testimony and other information before the Committee
thus support its conclusion that enactment of S. 1102 would not
create any unique or new risk of fraud.
2. The Committee considered the pros and cons of covering employees in
opposite-sex as well as same-sex domestic partnerships under
the legislation
At both the 2008 and 2009 hearings, the Committee and
witnesses discussed the pros and cons of providing benefits to
employees in opposite-sex, as well as same-sex, partnerships.
At the 2008 Hearing, Dr. Burton of IBM said that many companies
have extended domestic partner benefits only to same-sex
partners.\97\ She explained that these companies' intent is to
offer equal treatment to their employees, and their domestic
partner guides will often recognize that opposite-sex partners
have the option of marrying.\98\ Testifying for Dow Chemical at
the 2009 Hearing, Dr. Hendrix offered a somewhat different
perspective: that there had been discussion on this subject
within Dow as the company was moving forward with its domestic
partner benefit program, and Dow decided that the goal of
recruiting and retaining the best and the brightest would be
best served by offering benefits to employees in same-sex and
opposite-sex partnerships without distinction.\99\
---------------------------------------------------------------------------
\97\Oral testimony of Yvette C. Burton, IBM, at the 2008 Hearing,
note 37 above, at page 20. See, generally, the Employee Benefit
Research Institute, Facts From EBRI, note 3 above (``According to a
2007 survey by Hewitt Associates, . . . [s]eventeen percent of
[surveyed] firms offered domestic partner coverage to same-sex couples
only; 1 percent of firms offered coverage to opposite-sex couples only;
32 percent of surveyed firms offered coverage for same or opposite-sex
couples.'').
\98\Id.
\99\Oral testimony of William H. Hendrix, Dow Chemical Company, at
the 2009 Hearing, note 38 above, at page 17.
---------------------------------------------------------------------------
Director Berry testified at the 2009 Hearing that neither
employees and their same-sex domestic partners nor employees
and their opposite-sex domestic partners can participate in
several basic benefit programs but, that ``[o]pposite-sex
domestic partners . . . may gain eligibility through a valid
marriage.''\100\ Berry explained that legislation is needed
``before the Government can offer its gay and lesbian employees
some of the most important benefits,'' and that enacting S.
1102 ``would address the problem and provide for true equality
in benefits for all Federal employees.''\101\
---------------------------------------------------------------------------
\100\Statement of John Berry, note 53 above, 2009 Hearing at page
35.
\101\Id. at page 36.
---------------------------------------------------------------------------
Director Berry also recognized that covering only same-sex
domestic partners raises ``a fairness issue,''\102\ and he was
open to the possibility of exploring coverage of opposite-sex
partnerships at some point in the future. But he emphasized
that providing benefits to opposite-sex partners would have a
very significant financial impact on the government.\103\ Berry
explained that the cost of the bill as currently drawn is one
that the administration ``can manage and can offset,'' whereas
including opposite-sex partners would be a step that ``we just
cannot afford . . . at this time.''\104\ Given the ability of
opposite-sex domestic partners to qualify for benefits through
marriage and the significant cost associated with covering
them, OPM was not in a position to support this additional
expansion of benefits.
---------------------------------------------------------------------------
\102\Oral testimony of OPM Director John Berry, at the 2009
Hearing, note 38 above, at page 17.
\103\Id. The earliest introduced version of the DPBO bill,
sponsored by Representative Barney Frank (D-Mass.) in 2003, would have
covered opposite-sex as well as same-sex partnerships, and the
Congressional Budget Office (CBO) estimated that the bill would have
cost the federal government nearly six times as much as a bill that
covered same-sex partnerships only. Congressional Budget Office, Cost
Estimate, H.R. 2526, Domestic Partnership Benefits and Obligations Act
of 2003 (August 4, 2003) (``Approximately 83 percent of the costs would
come from partners in opposite-sex partnerships and approximately 17
percent of the costs derive from partners in same-sex partnerships.''),
http://www.cbo.gov/ftpdocs/44xx/doc4484/hr2426.pdf.
\104\Oral testimony of OPM Director John Berry, at the 2009
Hearing, note 38 above, at page17.
---------------------------------------------------------------------------
3. Enactment of S. 1102 would not contradict DOMA or demean the
importance of marriage
Certain advocacy organizations have argued that the
legislation is at odds with DOMA and devalues marriage. For
example, on October 14, 2009, the day of this Committee's 2009
Hearing, the Concerned Women for America issued a statement
referring to the hearing and then stating, ``Federal law
defines marriage as the union between a man and a woman,'' and
S. 1102 ``would contradict the law by elevating relationships
outside of marriage to that of a legal marriage.''\105\ The
statement further argued that ``[m]arriage between one man and
one woman provides unique benefits to individuals, children,
and society that cannot be replicated by any other living
arrangement'' and that the DBPO legislation ``demeans the
importance of marriage.''\106\ A few months later, on January
29, 2010, an article on the website of the Family Research
Council stated that the DPBO bill ``disobeys DOMA and devalues
marriage.''\107\
---------------------------------------------------------------------------
\105\Concerned Women for America, Media, ``Domestic Partnership
Legislation Demeans Marriage and Undermines Federal Law'' (October 14,
2009), http://www.cwfa.org/ content.asp?id=17857.
\106\Id.
\107\Family Research Council, Washington Update, ``Obama Uses Stump
to Thump DOMA'' (January 29, 2010), http://www.frc.org/
get.cfm?i=WU10A22, also http://www.frc.org/get.cfm?it=WU&row=151
(indicating the date of the publication).
---------------------------------------------------------------------------
Two witnesses at the 2009 Hearing provided their thoughts
on these arguments. OPM Director Berry stated:
We believe that S. 1102 does not contradict existing
law by creating an equivalence between domestic
partnerships and marriage, and it certainly does not
demean the importance of marriage. Rather, the bill
allows same-sex couples in committed relationships to
register as domestic partners for purposes of Federal
benefits and obligations--a status entirely distinct
from the State-recognized status of marriage. This
administration believes that same-sex couples in
committed relationships should enjoy the same benefits
and shoulder the same obligations as married opposite-
sex couples, but it also believes that the institution
of marriage is one that should be left to the States.
Accordingly, this bill does nothing to change any
State's definition of marriage.\108\ And, responding to
a question from the Committee asking whether S. 1102
would elevate same-sex relationships and thereby demean
marriage, Dr. Hendrix answered, from his private-sector
perspective, that ``Dow's decision to offer DP benefits
is a business decision, based on attracting and
retaining top talent without regard for personal
characteristics, including sexual orientation and
gender identity.''\109\
---------------------------------------------------------------------------
\108\Response from OPM Director John Berry, to question #5, Post-
Hearing Questions Submitted from Senator Joseph I. Lieberman for the
Record of the 2009 Hearing, note 38 above, at page 98.
\109\Response from William H. Hendrix, Dow Chemical Company, to
question #3, Post-Hearing Questions Submitted from Senator Joseph I.
Lieberman for the Record of the 2009 Hearing, note 38 above, at page
105.
---------------------------------------------------------------------------
The regulation of marriage--who may marry, how they may
enter into that union, and under what circumstances and
procedures they may dissolve it--is a matter of State law, and
nothing in S. 1102 would have any impact on the right of the
States to define the contours of marriage. Just as importantly,
S. 1102 would have no effect on DOMA's intended result, which
is to limit the federal benefits and obligations flowing from
state-sanctioned marriages to only those marriages that are
between a man and a woman. Section 3 of DOMA (1 Sec. U.S.C.
7)\110\ directs that:
---------------------------------------------------------------------------
\110\DOMA was enacted by Public Law 104-199 (Sept. 21, 1996).
---------------------------------------------------------------------------
In determining the meaning of any Act of Congress, or
of any ruling, regulation, or interpretation of the
various administrative bureaus and agencies of the
United States, the word ``marriage'' means only a legal
union between one man and one woman as a husband and
wife, and the word ``spouse'' refers only to a person
of the opposite sex who is a husband or a wife.
The provisions of S. 1102 do nothing to alter DOMA's
effect. The bill includes no definition of either ``marriage''
or ``spouse'', nor does it authorize a change in how either of
these terms may be interpreted in any other statute or
regulation. Moreover, as noted earlier in this report,\111\
nothing in S. 1102 would cause a same-sex marriage or a same-
sex spouse recognized under law of any State, or a domestic
partnership or a domestic partner recognized under S. 1102, to
be deemed to be a ``marriage'' or a ``spouse'' within the
meaning of any federal statute or regulation.
---------------------------------------------------------------------------
\111\See the second paragraph, above, of part II .B of this report.
---------------------------------------------------------------------------
S. 1102 also does nothing to demean marriage. Marriage is
established by religious or civil ceremonies recognized under
State law, with broad and profound significance for the
marriage partners, their families, and their communities. As
Director Berry stated, S. 1102 would not change that situation
in any way. Couples granted domestic partner benefits under
this bill could in no way claim that the government is thereby
considering them married. The bill instead leaves the
governance of the institution of marriage to the States, and
would define the distinct relationship of same-sex domestic
partnership for limited purposes in the context of federal
employment benefits and obligations only. Indeed, S. 1102 would
neither enhance nor diminish the benefits, obligations, or
other consequences that flow from either an opposite-sex or a
same-sex couple entering into a marriage.
4. The costs of S. 1102 are justified by the benefits
Like many employers, the federal government covers part of
the cost of its employees' benefits, including health
insurance, survivor annuities, workers' compensation, and
others. By enabling employees in same-sex partnerships to
participate in benefit programs from which they are now
excluded, S. 1102 would impose some costs upon the government.
The Committee explored this issue in its hearings.
Employers that offer domestic partner benefits have
generally found that the costs turn out to be surprisingly
affordable. The Employee Benefit Research Institute reported,
based on a study by Hewitt Associates, that most employers that
offer domestic partner benefits to opposite-sex as well as
same-sex couples found that fewer than one percent of all
employees who were offered the benefit actually enrolled, and
the percentage of employees who enroll is, of course, even
lower for employers that allow only same-sex couples to
enroll.\112\ Also, employers have found that the financial risk
of adding a domestic partner is no more than the risk of adding
a spouse. In sum, ``[e]xperience has shown that the costs of
domestic partner coverage are lower than anticipated.''\113\ A
survey of State governments that offer domestic partner
benefits to their employees has likewise found that enrollment
has been low and that the added costs have been minimal.\114\
Dr. Burton of IBM supplied to the Committee additional studies
involving employers in various sectors, showing similar
findings.\115\
---------------------------------------------------------------------------
\112\Employee Benefit Research Institute, ``Fundamentals of
Employee Benefit Programs--6th Edition (2009), at page 401, http://
www.ebri.org/pdf/publications/books/fundamentals/2009/
40_DomsPrtnr_OTHER-BENS_Funds-2009_EBRI.pdf.
\113\Id.
\114\Center for American Progress, ``One Simple Step for Equality:
States prove that the federal government can offer domestic partner
benefits with ease,'' note 7 above, at pages 1-2.
\115\Response from Yvette C. Burton, IBM, to question #3, Post-
Hearing Questions Submitted from Senator Joseph I. Lieberman for the
Record of the 2008 Hearing, note 37 above, at pages 199-229.
---------------------------------------------------------------------------
Witnesses at the Committee's 2008 and 2009 Hearings also
testified about their own companies' experiences, concluding
that domestic partner benefits impose minimal costs and provide
the company with significantly greater benefits. Dr. Hendrix
observed that Dow had been offering domestic partner benefits
for seven years, and, based on that length of experience, he
concluded, ``I can tell you that this program DOES NOT add
significantly to the bottom line.''\116\ Dr. Burton, offering a
cost-benefit perspective, reported that IBM had found that the
value to the company of offering domestic partner benefits
significantly outweighs the costs to the company,\117\ and,
referring to the advantages in recruitment and in maintaining
an open and productive workplace, she reported that studies
spanning both the private and public sectors show ``the
benefits severely outweigh the costs.''\118\ The Chubb
Corporation likewise told the Committee that offering domestic
partner benefits ``has not been a financial burden to Chubb. On
the contrary, we believe that our approach actually strengthens
our financial underpinnings, by enabling us to attract and
retain a wide variety of talented employees at every level of
the organization.''\119\
---------------------------------------------------------------------------
\116\Statement of William H. Hendrix, Dow Chemical Company, note 42
above, 2009 Hearing at page 88 (emphasis in original).
\117\Oral testimony of Yvette C. Burton, IBM, at 2008 Hearing, note
37 above, at page 16.
\118\Id. at page 25.
\119\Statement of Kathleen Marvel, the Chubb Corporation, note 64
above, 2008 Hearing at pages 150-151.
---------------------------------------------------------------------------
Even in the current challenging economic environment,
additional companies are choosing to offer domestic partner
benefits, showing that these companies still view that adopting
such programs is worth the cost. OPM Director Berry referred to
the chart (see figure 1, above) showing that the numbers of
large companies offering such benefits continues to rise:
The information presented in the chart provides
evidence that employers in the private sector continue
to see adding domestic partnership benefits as a good
business decision, even in these economic times. The
chart indicates that the number of employers in the
Fortune 500 and the Fortune 1000 that provide domestic
partnership benefits increased in 2009. Where many
employers are cutting costs and benefits, the number of
Fortune-ranked companies offering domestic partner
benefits has risen.\120\
---------------------------------------------------------------------------
\120\Response of OPM Director John Berry to question #2, Post-
Hearing Questions Submitted from Senator Joseph I. Lieberman to the
record of the 2009 Hearing, note 38 above, at page 96.
---------------------------------------------------------------------------
To help ensure that the costs under S. 1102 are minimal and
affordable, the bill contains two important limitations on
coverage. The first limitation makes the legislation applicable
only to same-sex, not opposite-sex, partnerships, as discussed
above.\121\ Second, the bill covers federal employees and their
partners only if the employees are employed by the federal
government on or after the effective date of the bill (and will
continue to cover the employees and their partners after the
employees retire), but the bill does not cover former employees
who have already retired when the bill goes into effect.\122\
---------------------------------------------------------------------------
\121\Notes 103-104 above and accompanying text.
\122\Based on an estimate of the cost of the legislation submitted
to the Committee by OPM Director Berry, excluding current retirees
appears likely to save about 30 percent of what the bill would cost if
current retirees were covered. Response of OPM Director John Berry to
question #3, Post-Hearing Questions Submitted from Senator Tom Coburn
for the record of the 2009 Hearing, note 38 above, at page, at page
102.
---------------------------------------------------------------------------
To aid in consideration of the costs of the legislation,
members of the Committee asked OPM to submit its estimate of
the cost of the DPBO Act for the record of both the 2008
Hearing and the 2009 Hearing.\123\ In addition, the cost
estimate for the bill prepared by the Congressional Budget
Office (CBO) is reproduced, below, in part V of this
report.\124\
---------------------------------------------------------------------------
\123\Response from then-OPM Director Howard C. Weizmann to question
#2, Post-Hearing Questions Submitted from Senator Joseph I. Lieberman
for the record of the 2008 Hearing, note 37 above, at pages 189-191;
Response from OPM Director John Berry to question #3, Post-Hearing
Questions Submitted from Senator Tom Coburn for the record of the 2009
Hearing, note 38 above, at page 102.
\124\CBO, Cost Estimate, S. 1102, Domestic Partnership Benefits and
Obligations Act of 2009, as ordered reported by the Senate Committee on
Homeland Security and Governmental Affairs on December 16, 2009 (May
11, 2010), http://www.cbo.gov/ftpdocs/114xx/doc11494/s1102.pdf. The
Committee also received into the record at the 2008 Hearing an estimate
of the bill's cost prepared by an academic research institution.
Williams Institute, UCLA School of Law, ``The Fiscal Impact of
Extending Federal Benefits to Same-Sex Domestic Partners,'' by Naomi G.
Goldberg, Christopher Ramos, M.V. Lee Badgett (September 2008) (entered
into the record of the 2008 Hearing, note 37 above, at page 157),
http://www.law.ucla.edu/williamsinstitute/publications/
S2521FiscalAnalysis_WilliamsInst.pdf.
---------------------------------------------------------------------------
CBO based its estimate on changes in the cost of four
benefit programs--health insurance (FEHB), survivor annuities
(Federal Employees' Retirement System and Civil Service
Retirement System), compensation for work-related injuries
(FECA), and travel and relocation benefits--that would affect
the federal budget. Some other benefit programs, such as life
insurance (FEGLI) and vision and dental benefits, are fully
paid for by the participants and therefore have no budgetary
effect.
CBO's estimated cost of the bill over the next ten years,
considered as a share of the federal government's total budget
for employee and salary and benefits, would amount to only
about two hundredths of one percent (0.0002).\125\ In absolute
terms, and broken down by program, domestic partner health-
insurance benefits offered through the FEHB program would
account for the largest increase in costs--a total of $649
million over 10 years. Taking all of the relevant benefit
programs into consideration, enactment of the bill would cause
spending for annuitants and for postal employees (i.e., costs
that cannot be controlled under the annual budget process) to
rise by $310 million over the 10-year period through 2020, and
implementation of the bill for federal employees while they are
still employed by the government would cost about $394 million
over the same 10-year period.
---------------------------------------------------------------------------
\125\Total amounts paid for personnel compensation and benefits are
described in the President's budget submission for FY 2011. OMB,
Analytical Perspectives, Budget of the U.S. Government, Fiscal Year
2011, Table 10-3 Personnel Compensation and Benefits, at page 109,
http://www.gpoaccess.gov/usbudget/fy11/pdf/spec.pdf. The table shows
compensation and benefits for current personnel in 2010 and 2011 of
approximately $300 billion, plus about $80 billion for retiree
benefits. CBO's estimated costs of S. 1102 average about $70 million
per year through 2020. This cost estimate by CBO is reproduced below in
part V of this report.
---------------------------------------------------------------------------
These cost estimates for S. 1102--totaling a small fraction
of the government's total personnel costs--are fully consistent
with the experience of non-federal employers, who find, as
discussed above,\126\ that offering domestic partner benefits
is very affordable and that offering such benefits is worth the
price because of expected improvements in recruitment,
retention, morale, and productivity.
---------------------------------------------------------------------------
\126\Text accompanying notes 112-119 above.
---------------------------------------------------------------------------
Finally, in his testimony at the 2009 Hearing, OPM Director
Berry promised to help further justify the costs of S. 1102 by
``find[ing] efficiencies and improvements that . . . fully
cover the cost of this program.''\127\ These offsets will make
the cost of the bill all the more affordable.
---------------------------------------------------------------------------
\127\Oral testimony of John Berry at the 2009 Hearing, note 38
above, at page 21.
---------------------------------------------------------------------------
D. SUBSTITUTE AMENDMENT TO S. 1102 IMPLEMENTING TECHNICAL
RECOMMENDATIONS FROM OPM
Certain technical concerns about the drafting of the DPBO
Act were raised by then-OPM Deputy Director Weizmann at the
2008 Hearing\128\ and by OPM Director Berry at the 2009
Hearing.\129\ As introduced, the legislation required that
federal employees file affidavits pertaining to eligibility for
domestic partner benefits with OPM. However, both Weizmann and
Berry commented that it is not practicable for OPM to serve as
a central repository for these documents. As Berry explained,
``Each Federal agency carries out human resources management
functions, including benefits enrollment and payroll
deductions, for its own employees.''\130\ Then after an
employee retires, documentation involving benefits is generally
submitted to the employee's retirement system, which in many
cases is administered by OPM.\131\
---------------------------------------------------------------------------
\128\Statement of then-OPM Deputy Director Howard C. Weizmann, note
85 above, 2008 Hearing at pages 32-33.
\129\Statement of OPM Director John Berry, note 53 above, 2009
Hearing at pages 37-38.
\130\Id. at page 37.
\131\For example, OPM recently issued regulations allowing the
same-sex domestic partners of employees and annuitants to enroll under
the Federal Long Term Care Insurance Program (FLTCIP), and OPM has
instructed that, for employees and their partners, documentation
showing that they meet the definition of ``domestic partner'' must be
filed with the employee's agency, whereas for annuitants and their
domestic partners, the documentation must be filed with the retirement
system. See U.S. OPM, Benefits Administration Letter, ``Federal Long
Term Care Insurance Program (FLTCIP): Qualified Relatives now include
Same-Sex Domestic Partners'' (Number: 10-901, July 1, 2010), http://
www.opm.gov/retire/pubs/bals/2010/10-901.pdf.
---------------------------------------------------------------------------
Also, as introduced, the bill provided benefits and imposed
obligations in very general terms:
(a) In General.--An employee who has a domestic
partner and the domestic partner of the employee shall
be entitled to benefits available to, and shall be
subject to obligations imposed upon, a married employee
and the spouse of the employee.\132\
---------------------------------------------------------------------------
\132\Section 2(a) of S. 1102, 111th Cong., as introduced on May 20,
2009.
---------------------------------------------------------------------------
Likewise, with respect to survivor benefits, the bill, as
introduced, stated--
(2) Death of an employee.--In the case in which an
employee dies, the domestic partner of the employee at
the time of death shall receive under this Act such
benefits as would be received by the widow or widower
of an employee.\133\
---------------------------------------------------------------------------
\133\Section 2(c)(2) of S. 1102, 111th Cong., as introduced on May
20, 2009.
---------------------------------------------------------------------------
Both Director Berry and then-Deputy Director Weizmann
testified that this way of drafting the legislation was not
sufficiently precise. As Weizmann said, referring to the
provision on death of an employee as an example, ``[t]his
provision lacks the specificity needed to determine eligibility
and amount of benefits for a separated domestic partner.''\134\
Berry expressed a similar concern and proposed that the
legislation be recast to make specific amendments to applicable
statutory provisions, explaining, ``This would provide
continuity and would resolve ambiguities . . . . It would also
preserve the accuracy of title 5 [of the United States Code,
where most civil service statutes are codified] for those who
administer its provisions in the future.''\135\
---------------------------------------------------------------------------
\134\Statement of then-OPM Deputy Director Howard C. Weizmann, note
85 above, 2008 Hearing at page 32.
\135\Statement of OPM Director John Berry, note 53 above, 2009
Hearing at page 38.
---------------------------------------------------------------------------
Responding to these concerns, Senator Lieberman and Senator
Collins, in consultation with OPM, drafted an amendment in the
nature of a substitute to S. 1102, and the amendment was agreed
to when the bill was considered by the Committee on December
16, 2009. (The Committee also agreed to an amendment offered by
Senator Burris to require that GAO prepare a report on how the
legislation affects recruitment and retention in the
government.)
Part IV, below, of this report offers an extensive section-
by-section analysis of the bill, as amended; summarized here
are some of S. 1102's most salient parts:
Establishment and dissolution of domestic partnerships
The bill defines a ``domestic partnership'' as a
relationship between two individuals of the same sex, at least
one of whom is a federal employee, former employee, or
annuitant, that has been established and not dissolved under
the new statutory program. To establish a domestic partnership,
a federal employee, former employee, or annuitant and another
individual must file an application and affidavit in which they
certify that they are in a committed domestic-partnership
relationship and intend to remain so indefinitely. They also
must certify that they have a common residence and share
responsibility for each other's welfare and financial
obligations and that neither is married to or in a domestic
partnership with anyone except each other. Willful
falsification of the affidavit may lead to criminal or other
penalties.
Termination of a domestic partnership occurs upon the death
of either domestic partner or when one or both partners file a
notification stating that a required condition for the
continued existence of the partnership ceases to exist.
A member of the Armed Forces is not eligible to be a member
of a domestic partnership.
Only an individual who is employed as a federal employee on
or after the bill's effective date, and such an individual who
subsequently retires or otherwise leaves federal employment,
may establish a domestic partnership.
Benefits and obligations extended to federal employees in domestic
partnerships and their domestic partners
S. 1102 establishes benefits for federal employees and
their same-sex domestic partners parallel to the benefits under
existing law for married federal employees and their spouses.
For example, employees could protect their partners and
partners' children under FEHB health insurance coverage and
with CSRS and FERS survivor annuity rights to the same extent
as spouses and spouses' children. S. 1102 also imposes
obligations and delimits benefits for employees in domestic
partnerships parallel to the obligations and delimitation of
benefits imposed on married employees under present law. So,
for example, if employees must disclose financial information
under the Ethics in Government Act,\136\ they would be required
to include information about their domestic partners, as
married employees must do, and employees who establish a
domestic partnership would subject themselves to criminal
conflict-of-interest prohibitions against participating as a
federal employee in any matter in which their domestic partner
has a financial interest.\137\ Moreover, employees in domestic
partnerships will receive reduced annuities in order to fund
their partners' survivor annuities to the same extent as
married employees do,\138\ and domestic partners will gain
certain rights to consent or to notice before employees may
take loans or withdrawals from their Thrift Savings Plan
accounts.\139\
---------------------------------------------------------------------------
\136\Title I, Ethics in Government Act of 1978 (5 U.S.C. app.
Sec. 101 et seq.).
\137\18 U.S.C. Sec. 208.
\138\See 5 U.S.C. 8339, 8341, 8416, 8419; see also OPM; Retirement
Information and Services; Survivor Benefit Elections, Court-Ordered
Benefits, and Children's Benefits, http://www.opm.gov/retire/faq/post/
faq2.asp (spouse is generally entitled to a survivor annuity, with
commensurate reduction in the employee's annuity, unless the spouse
consents to waive the right).
\139\See 8 U.S.C Sec. 8435; Thrift Savings Plan, Changes in Your
Family Status: Marriage, Spouse's Rights, https://www.tsp.gov/
lifeevents/spouse/marriage.shtml#spouseRights.
---------------------------------------------------------------------------
The section-by-section analysis in part IV, below, of this
report provides a detailed accounting of all of the benefits
offered and obligations imposed by the bill, but listed here
are the key programs that the bill would extend to federal
employees and their same-sex domestic partners:
Civil Service Retirement System (CSRS)
Federal Employees' Retirement System (FERS)
Federal Employees' Group Life Insurance Program
(FEGLI)
Federal Employees Health Benefits Program (FEHBP)
Federal Employees Dental and Vision Insurance
Program (FEDVIP)
Federal Long Term Care Insurance Program (FLTCIP)
Travel, transportation, and subsistence payments
Federal Employees' Compensation Act (FECA)
Employee leave
Death or captivity compensation
Ethics in Government Act of 1978
Conflicts of interest laws
Restrictions on employment of relatives
Receipt and disposition of foreign gifts and
decorations
Regulation of conduct regarding gifts
III. Legislative History
S. 1102 was introduced by Senator Lieberman and Senator
Collins on May 20, 2009, and was referred to the Committee on
Homeland Security and Governmental Affairs. Joining as
additional cosponsors are Senators Akaka, Boxer, Brown (OH),
Burris,\140\ Cantwell, Cardin, Casey, Dodd, Durbin, Feingold,
Feinstein, Franken, Gillibrand, Kennedy,\141\ Kerry, Kirk,
Klobuchar, Landrieu, Lautenberg, Leahy, Levin, Menendez,
Merkley, Mikulski, Murray, Sanders, Schumer, Specter,
Whitehouse, and Wyden. Senator Lieberman introduced similar
legislation in the 110th and 109th Congresses, and earlier
Senate bills were introduced in the 108th and 107th
Congresses.\142\
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\140\Senator Roland Burris's term ended on November 29, 2010.
\141\Senator Edward M. Kennedy died on August 25, 2009.
\142\S. 2521, 110th Cong. (Dec. 19, 2007); S. 3955, 109th Cong.
(Sept. 27, 2006); S. 1252, 108th Cong. (June 12, 2003); S. 2874, 107th
Cong. (Aug. 1, 2002). The DPBO bills in the House have been H.R. 2517,
111th Cong. (May 20, 2009); H.R. 4838, 110th Cong. (Dec. 19, 2007);
H.R. 3267, 109th Cong. (July 13, 2005); H.R. 2426, 108th Cong. (July
11, 2003); H.R. 638, 107th Cong. (Feb. 14, 2001).
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The Committee has held two hearings on S. 1102 and on an
identical predecessor bill. The first hearing was on September
24, 2008, during the 110th Congress. Testimony was received
from: The Honorable Howard C. Weizmann, Deputy Director, U.S.
Office of Personnel Management; Yvette C. Burton, Ph.D., Global
Business Development Executive for Gay, Lesbian, Bisexual,
Transgender (GLBT) and Human Capital Market Segments, IBM
Corporation; Colleen M. Kelley, National President, National
Treasury Employees Union; Sherri Bracey, Program Manager,
Women's and Fair Practices Departments, American Federation of
Government Employees, AFL-CIO; and Frank Hartigan, Deputy
Regional Director, San Francisco Office, Federal Deposit
Insurance Corporation.
The Committee held a second hearing on October 15, 2009,
during the first session of this 111th Congress. Testimony was
received from: The Honorable Tammy Baldwin, Representative from
the 2nd Congressional District of the State of Wisconsin, U.S.
House of Representatives; The Honorable John Berry, Director,
U.S. Office of Personnel Management; and William H. Hendrix,
III, Ph.D., Global Leader, Gays, Lesbians and Allies at Dow,
the Dow Chemical Company.
The Committee considered S. 1102 on December 16, 2009.
Chairman Lieberman and Ranking Minority Member Collins offered
an amendment in the nature of a substitute. (The changes made
by the substitute amendment are described in part II.D, below,
of this report.) Senator Burris offered an amendment to require
the Comptroller General to submit a report on the effect of
this legislation on the federal government's recruitment and
retention efforts. The Committee adopted the substitute and the
Burris amendment, both by voice vote. Present for both votes
were Senators Lieberman, Akaka, Carper, McCaskill, Tester,
Burris, Kirk, Collins, and Bennett.
By a vote of 8 to 1 of Members present, the Committee then
ordered that the bill, as amended by the Lieberman-Collins
substitute and the Burris amendment, be reported favorably to
the full Senate. Senators Lieberman, Akaka, Carper, McCaskill,
Tester, Burris, Kirk, and Collins voted in favor of the bill,
and Senator Bennett voted against it. In addition, Senators
Levin and Landrieu cast proxy votes in favor of the bill, and
Senators Pryor, Coburn, McCain, Voinovich, and Graham voted
against the bill by proxy. Senator Ensign was absent and left
no instructions. Taking into account proxies, which are for the
record only, the total vote in favor of reporting the bill
favorably was 10 to 6.
IV. Section-by-Section Analysis
Sec. 1. Short title and table of contents
This section states that the legislation may be cited as
the ``Domestic Partnership Benefits and Obligations Act of
2009'' and provides a table of contents of the bill.
This section also provides that, when the bill amends a
provision of statute without saying which title of the United
States Code or which other act the provision is in, the
provision is assumed to be in title 5 of the United States
Code.
Sec. 2. Purpose
This section says that the purpose of the legislation is to
offer employment benefits to and impose corresponding
obligations upon federal employees in same-sex domestic
partnerships and their domestic partners that are the same as
the employment benefits and obligations under existing statutes
for married federal employees and their spouses.
TITLE I--ESTABLISHMENT AND DISSOLUTION OF DOMESTIC PARTNERSHIPS; OTHER
GENERAL PROVISIONS
Sec. 101. Federal employees in domestic partnerships
This section adds a new chapter 25 (2501-2502) to title 5
of the United States Code. The new chapter will govern the
establishment and dissolution of federal employee domestic
partnerships.
New 5 U.S.C. Sec. 2501--Definitions--as added by section
101 of the bill
Within new 5 U.S.C. Sec. Sec. 2501-2502, which would be
added by section 101 of the bill, Sec. 2501 establishes
necessary definitions for Sec. Sec. 2501-2502:
An ``annuitant'' includes any individual who, on the basis
of that individual's service, is entitled to an annuity under
the Civil Service Retirement System (CSRS), the Federal
Employee Retirement System (FERS), or any other retirement
system for employees of the federal government. CSRS and FERS
are the retirement systems that cover the great majority of
federal employees.
The ``Director'' is the Director of the Office of Personnel
Management (OPM).
A ``domestic partner'' is either of the individuals in a
domestic partnership as defined in this section.
A ``domestic partnership'' is a relationship between two
individuals of the same sex, at least one of whom is an
employee (as defined in this section), that has been
established under the provisions of new 5 U.S.C. Sec. 2502(a)
and has not been terminated under the provisions of new 5
U.S.C. Sec. 2502(b).
The definition of an ``employee'' includes, among other
things, employees as defined in 5 U.S.C. Sec. 2105. That
definition generally encompasses all individuals appointed to
civilian positions in the executive, judicial, and legislative
branches of the United States Government. It excludes those in
the Armed Forces, in the commissioned corps of the Public
Health Service, or in the commissioned corps of the National
Oceanic and Atmospheric Administration.
The term ``employee'' is further defined to include
individuals referred to in 5 U.S.C. Sec. Sec. 2105(c) and (d),
which covers employees of the military exchanges and of the
United States Postal Service and Postal Regulatory Commission.
The definition under this paragraph also includes Members of
Congress, the President, and any other individuals employed by
the United States Government and included within the definition
under regulations prescribed by the President or a designee.
New 5 U.S.C. Sec. 2502--Establishment and dissolution of
domestic partnerships--as added by section 608 of
the bill
New Sec. 2502 states the rules for establishing and
dissolving the domestic partnerships that trigger eligibility
for the benefits conferred and obligations imposed under the
bill.
New Sec. 2502(a)--Establishment of Domestic Partnership.
This section provides that, to establish a domestic
partnership, an employee, former employee, or annuitant and
another individual (who may also be an employee, former
employee, or annuitant) will sign an application and affidavit;
and then the employee, former employee, or annuitant will file
them in the manner prescribed by OPM.\143\
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\143\This provision allows annuitants and other former federal
employees to enter into domestic partnerships because they are, under
various circumstances, entitled to benefits, and other sections of this
bill will enable them to obtain those benefits for their domestic
partners and partners' children, as married annuitants and other former
employees can obtain those benefits for their spouses and stepchildren.
For example, retirees with health benefits may wish to establish
domestic partnerships in order to add their domestic partners and
partners' dependent children to their policies. Former employees who
have Thrift Savings Plan retirement accounts may also want to enter
into domestic partnerships so that their surviving domestic partners
can maintain the accounts after the employees die. Note that this
section of the bill only defines those who are eligible to establish
domestic partnerships; it does not address which, if any, benefits the
individuals forming a partnership may seek. Also, under section 105(b)
of the bill, discussed below, only an annuitant or other former
employee who has served as an employee on or after the effective date
of the legislation will be eligible to form a domestic partnership.
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New Sec. 2502(a) requires each of the individuals
establishing the domestic partnership to attest in the
affidavit to the following:
1. Both individuals are of the same sex.
2. The individual filing the documents is an employee,
former employee or annuitant.
3. They are in a committed domestic-partnership
relationship with each other and intend to remain so
indefinitely and that--
they maintain a common residence (unless
prevented from doing so by an assignment abroad or
other such reason);
they share responsibility for each other's
welfare and financial obligations; and
neither is married to, or in a domestic
partnership with, anyone else.
4. Each is at least 18 years old and mentally competent to
consent to a contract.
5. They are not related to each other by blood in a way
that would prohibit legal marriage between individuals
otherwise eligible to marry.
6. Each domestic partner understands--
the domestic partners take on obligations as
well as benefits, and violation of those obligations
may lead to disciplinary action and criminal penalties;
one or both must file a notification
dissolving the domestic partnership within 30 days
after a condition attested to in the affidavit ceases
to be satisfied or after one domestic partner dies; and
willful falsification of the affidavit, or
willful failure to file notification dissolving the
domestic partnership when necessary, may lead to
recovery of amounts wrongfully obtained, disciplinary
action, and criminal penalties.
New Sec. 2502(b)--Termination of Domestic Partnership.
Under this subsection, a domestic partnership terminates when
one domestic partner dies or when either or both domestic
partners file a notification stating that a required condition
for the continued existence of the domestic partnership ceases
to exist. The Director may also, by regulation, establish
additional conditions upon which a domestic partnership is
terminated.
If the domestic partners cease having a common residence or
cease sharing responsibility for each other's welfare and
financial obligation, or if either partner enters into a
domestic partnership or a marriage with anyone else, one or
both of the domestic partners must file a notification
terminating the domestic partnership within 30 days. If a
domestic partner dies, the other domestic partner must file
such a notification within 30 days. The subsection also
requires the Director to establish, by regulation, criteria by
which partners can determine whether they have ceased having a
common residence or have ceased sharing responsibility for each
other's welfare and financial obligation for the purposes of
this requirement.
New Sec. 2502(c)--Effectiveness of Application. This
subsection clarifies that an application to form a domestic
partnership is not effective unless the filer is an employee,
former employee, or annuitant at the time of filing. Also, no
individual is treated as being a domestic partner unless an
application filed in accordance with regulations of the
Director is in effect, and an application remains in effect
until either individual dies or the domestic partnership is
otherwise terminated under those regulations.
New Sec. 2502(d)--Additional Notifications to Employing
Agencies. Under this subsection, regulations by the Director
may require a domestic partner who is employed by an entity of
the United States to provide additional notifications to the
employing entity. For example, if two federal employees wish to
establish a domestic partnership, one employee will file the
required application and affidavit with that employee's agency
and the other employee might be required to file additional
notifications with that other employee's agency.
New Sec. 2502(e)--Members of the Armed Forces Not Eligible.
Under this subsection, a member of the Armed Forces or of the
Reserve Officers' Training Corps is not eligible to be a member
of a domestic partnership established under this legislation.
New Sec. 2502(f)--Applicability. This subsection clarifies
that the process for establishing and terminating domestic
partnerships under 5 U.S.C. Sec. 2502 does not apply for
purposes of 5 U.S.C. chapter 81 (the Federal Employees
Compensation Act, or FECA). As described below, domestic
partnerships will be established and terminated for purposes of
FECA under separate authorities added by title VI of the bill.
New Sec. 2502(g)--Regulations. Under this subsection, the
Director will issue regulations to carry out new 5 U.S.C.
Sec. 2502.
Sec. 102. Guidance documentation
Under this section, the Director of OPM will compile and
publish guidance on the benefits and obligations established by
the legislation to help inform federal employees and their
domestic partners about their new rights and duties.
Subsection (a)--In General. Under this subsection, the
agencies that have the authority to issue guidance with respect
to benefits and obligations established under the bill will,
under the coordination of the Director, issue such guidance.
Subsection (b)--Office of Personnel Management. This
subsection requires the Director to compile the guidance
prepared by all agencies, prepare guidance with respect to
benefits and obligations available to domestic partners of
certain Secret Service and Park Police officers who are covered
under the DC Police Officers' and Firefighters' Retirement
Plan, and ensure that all of the guidance is readily available,
both in print and on-line.
Subsection (c)--Timeliness. Under this subsection, the
guidance must be prepared and made readily available not later
than 30 days before the effective date of the bulk of the
legislation's provisions, to the extent practicable, and
updated as necessary. (As noted below, section 105(a) of the
bill states that the legislation will generally go into effect
180 days after enactment.)
Sec. 103. Review of programs under which employment benefits and
obligations are established
This section will require the President (or designees), at
least once every two years, to review employment benefits and
obligations for federal employees across the executive branch,
report to Congress on the extent to which these benefits and
obligations are, or can be, extended to employees in domestic
partnerships and their domestic partners, and recommend any
necessary legislation. Although the amendments in this bill
will authorize domestic partner benefits under the major
statutory benefits programs for federal employees, additional
kinds of family benefits are provided for classes of federal
employees that the bill does not modify. For example, some
individual agencies have used their discretionary authority to
establish family benefit programs for certain employees of the
agency.
The principal goal of this section is therefore to
establish a mechanism by which domestic partner benefits will
be granted under programs that are not covered under the
specific amendments made by the bill. The President must
compile an inventory of such programs, and then, if existing
legal authority is sufficient, the President must make any
modifications necessary to cover employees in domestic
partnerships and their partners. The inventory under this
section must also include the family benefit programs that are
covered under the amendments made by this bill, so that the
President can identify and fill any gaps in the domestic
partner benefits made available under those programs. If
existing statutes do not provide sufficient authority to fill
any gaps in domestic partner benefits under programs on the
inventory, this section of the bill further calls upon the
President to develop any legislative recommendations to correct
the insufficiencies. Finally, the President must submit reports
to Congress summarizing the actions taken and the legislative
recommendations developed under this section.
Subsection (a)--Definitions. The definitions under this
subsection establish the scope of the review of federal
programs mandated by section 103. The term ``employee'' is
defined broadly, so that it includes not only an employee who
can form a domestic partnership under 5 U.S.C. Sec. 2502 (which
would be added by section 101 of the bill, as discussed above),
but also members of the commissioned corps of the Public Health
Service (PHS) or of the National Oceanographic and Atmospheric
Administration (NOAA) and any other individual performing
personal services to the United States, including employees of
any federal entity and volunteers. (Federal volunteers are
included because they may be eligible for certain benefits,
such as workers' compensation under FECA. However, employees of
contractors and members of the Armed Forces or the Reserve
Officer Training Corps are not included in the definition.)
The terms ``domestic partner'' and ``domestic partnership''
are defined for purposes of section 103 to include same-sex
individuals in a domestic partnership relationship if at least
one of the individuals meets the broad definition of
``employee'' under in this section, regardless of whether
either individual is an ``employee'' within the narrower
definition in 5 U.S.C. Sec. 2501. In other words, the term
encompasses individuals who might not be entitled to form a
domestic partnership under the bill's initial provisions.
Subsection (b)--Reviews, Additional Measures,
Recommendations, Reports to Congress. This subsection will
require the President (or designees of the President) to review
the employment benefits and obligations applicable to married
employees and their spouses, to determine what authority exists
to apply such benefits and obligations to employees of
executive agencies who are in domestic partnerships and to
their domestic partners. The President (or designees) will then
take any additional measures, consistent with law, to cover
those employees and domestic partners. The President (or
designee) will then develop recommendations for any legislation
to further extend employment benefits and obligations to
employees and their domestic partners and will submit a report
to Congress summarizing the review, determinations, and
recommendations.
Sec. 104. Study on recruitment and retention
Section 104 of the bill requires the Comptroller General to
submit to this Committee and to the House Committee on
Oversight and Government Reform a report regarding the effect
that providing benefits for domestic partners under this Act
has on federal recruitment and retention efforts.
Sec. 105. Effective date
Subsection (a)--In General. Under this subsection, the
legislation and amendments will generally take effect 180 days
after the date of enactment. This general effective date will
apply except as otherwise provided with respect to particular
parts of the bill.
Exceptions to the general effective date under subsection
(a) are included in sections 102 and 103 of the bill, making
those sections go into effect on the day the bill is enacted.
The early effective date is needed because those sections
require that tasks be undertaken before the general effective
date. (As discussed above, section 102 will require the OPM
Director to compile and publish guidance on the benefits and
obligations established by the legislation, and section 103
will require the President, or designees, to review benefits
and obligations for federal employees across the executive
branch and to report to Congress.)
Also, several sections of the bill that modify particular
benefit programs include exceptions that establish effective
dates appropriate for the particular program. For example,
sections 401 through 405 of the bill, which modify insurance
benefit programs like group health insurance, group life
insurance, and long-term care insurance, will apply with
respect to the calendar year that begins after the end of the
6-month period starting on the date of enactment of the
legislation. This starting date will give enough time after the
bill is enacted for OPM to require the various insurance
carriers to modify the insurance plans that they offer to
federal employees.
Subsection (b)--Application to Current and Future
Employees. This subsection states that any employee who is
employed by the federal government on or after the general
effective date of the legislation (which is established under
subsection (a)) will be eligible to form a domestic
partnership. Also, an employee who is employed by the
government on or after the general effective date of the bill
and subsequently leaves federal service will remain eligible to
form a domestic partnership.
However, an annuitant or other former employee who has left
federal service before the general effective date of the bill
will not be eligible to form a domestic partnership. (Of
course, nothing would prevent an individual who works for the
federal government on or after the effective date from
establishing a domestic partner with another individual who
left federal service before that date.)
TITLE II--CIVIL SERVICE RETIREMENT SYSTEM
Title II of the bill establishes domestic partnership
benefits under the Civil Service Retirement System (CSRS),
which is the defined-benefit retirement program that covers
most federal employees who began service before 1987. The CSRS
not only provides retirement security for covered employees,
but also enables them to provide retirement security for their
spouses and children, including stepchildren. The CSRS is
authorized by 5 U.S.C. chapter 83, subchapter III
(Sec. Sec. 8331-8351). Title II of the bill amends those
provisions to enable federal employees covered by CSRS who are
in domestic partnerships to likewise provide retirement
security for their domestic partners and children, including
children of their domestic partners.
Sec. 201. Definitions
Section 201 of the bill amends 5 U.S.C. Sec. 8331 (the
definitions section for provisions authorizing the CSRS) by
adding a definition of ``former domestic partner.'' The term is
defined to parallel the definition of ``former spouse'' now in
Sec. 8331 (i.e., at least 18 months of covered service by the
employee, and at least 9 months of marriage or domestic
partnership). These definitions are significant because
amendments made by other provisions of the bill make a former
domestic partner eligible for a CSRS survivor annuity under the
same conditions as those that apply to former spouses. Section
201 of the bill also adds definitions of ``domestic partner''
and ``domestic partnership'' by cross referencing the
definitions in 5 U.S.C. Sec. 2501, which is added by section
101 of the bill. (Section 201 also adds a definition of
``Federal employee'' to make clear that only federal employees
covered by CSRS, and not the small portion of CSRS participants
who are not federal employees, are entitled to the benefits
conferred by this bill.)
Sec. 202. Creditable service
Under current law (5 U.S.C. Sec. 8332), CSRS benefits for
an employee's spouse or former spouse depend upon the amount of
the employee's service that is creditable for purposes of the
CSRS. Section 202 of the bill amends Sec. 8332 by requiring
OPM's rules to similarly determine the amount of CSRS benefits
paid under those circumstances to an employee's domestic
partner or former domestic partner.
Sec. 203. Computation of annuity
5 U.S.C. Sec. 8339 establishes rules for computing the
amount of an annuity, including the amount of and entitlement
to a survivor annuity under certain circumstances. Among other
things, Sec. 8339 reduces the annuity of employees to fund a
survivor annuity for current, former, or subsequent spouses and
establishes various elections that can be exercised by
employees and their current, former, and subsequent spouses
under various circumstances.
Section 203 of the bill amends Sec. 8339 to provide that
employees who are or were in domestic partnerships and their
domestic partners, former domestic partners, and subsequent
domestic partners have the same rights that married and
formerly married employees and their spouses, former spouses,
and subsequent spouses have under Sec. 8339 for purposes
determining the entitlement to, and amount of, an annuity or a
survivor annuity.
Sec. 204. Cost-of-living adjustment to annuities
5 U.S.C. Sec. 8340 authorizes cost-of-living adjustments
for annuities under CSRS. Section 204 of the bill amends
Sec. 8340 to provide that entitlement to CSRS survivor
annuities and cost-of-living increases will be determined for
surviving partners under the same rules as for widows and
widowers and will be determined for former domestic partners
under the same rules as for former spouses. (The definition of
``former domestic partner'' is added by section 201 of the bill
to 5 U.S.C. Sec. 8331, as discussed above, and the definition
of ``surviving partner'' is added by section 205 of this bill
to 5 U.S.C. Sec. 8341, as discussed below.)
Sec. 205. Survivor annuities
After the death of a federal employee or retiree, 5 U.S.C.
Sec. 8341 generally establishes the circumstances under which
the employee's or retiree's surviving family member or another
individual may become entitled under CSRS to an annuity, called
a survivor annuity. Sec. 8341 provides definitions of a
``widow'', ``widower'', and ``child'' who may be entitled to a
survivor annuity under CSRS. (A ``widow'' or ``widower'' means
a surviving spouse who was married to the employee at least
nine months immediately preceding the death or parented a child
by the marriage. A ``child'' generally means an unmarried
dependent child, including a stepchild living with the employee
in a parent-child relationship.)
Section 205 of the bill adds a definition of ``surviving
partner'' that parallels the definitions of ``widow'' and
``widower'', and amends the definition of ``child'' to include
the child of an employee's domestic partner under the same
conditions as those under which a stepchild is included.
Section 205 of the bill further amends Sec. 8341 so that
surviving partners are entitled to an annuity under the same
conditions and in the same amounts as widows and widowers.
Also, Sec. 8341 establishes rules for determining whether
surviving spouses--that is, those who do not meet the
conditions in the definition to qualify as ``widows'' or
``widowers''--are entitled to a survivor annuity. Under the
amendment to Sec. 8341, surviving domestic partners--that is,
those who do not meet the conditions to qualify under the
definition of ``surviving partners''--are entitled to an
annuity under the same conditions and in the same amounts as
surviving spouses.
As noted above, section 205 amends the definition of
``child'' in Sec. 8341 to include the children of domestic
partners, and therefore the children of domestic partners may
qualify for an annuity under Sec. 8341. Also, Sec. 8341
terminates the right to benefits if children marry and
generally terminates the right to benefits if widows or
widowers or surviving spouses remarry before age 55. Section
205 of the bill amends Sec. 8341 to also terminate the right to
benefits if children enter into a domestic partnership and if
widows or widowers or surviving spouses enter into a domestic
partnership before age 55 or if surviving partners or surviving
domestic partners enter into a subsequent domestic partnership
or marry before age 55. (The term ``domestic partnership'' is
defined under 5 U.S.C. Sec. 2501-2502, as added by section 101
of the bill, to mean a domestic partnership established under
those provisions, and that definition applies to the CSRS under
the bill's amendment to 5 U.S.C. Sec. 8331, as noted above.
Therefore, entering into a domestic partnership can terminate
any benefit rights under 5 U.S.C. Sec. 8341, as amended, only
if the domestic partnership is established under
Sec. Sec. 2501-2502.)
Sec. 206. Lump-sum benefits; designation of beneficiary; order of
precedence
5 U.S.C. Sec. 8342 authorizes the payment of a lump-sum
amount, in lieu of an annuity, under certain circumstances and
includes a list of beneficiaries, in order of precedence, who
are entitled to the lump sum benefits if an employee dies.
Generally, if the deceased employee did not designate
beneficiaries, the widow or widower is first in line, and if
there is no widow or widower, the child or children are next in
line.
Section 206 of the bill amends this list by adding
surviving partners with the same order of precedence as widows
and widowers. 5 U.S.C. Sec. 8342 excludes the employee's
stepchildren from the definition of ``child'' for purposes of
this order of precedence, and section 206 of the bill would
likewise amend the provision to exclude children of the
employee's domestic partner (if they are not otherwise the
children of the employee). Section 206 further amends Sec. 8342
by requiring that domestic partners and former domestic
partners be notified of their rights, as spouses or former
spouses are notified, when an employee applies for a lump sum
payment.
Sec. 207. Alternative forms of annuities
5 U.S.C. Sec. 8343a allows employees with critical medical
conditions to elect an alternative form of annuity, and the
section includes options and restrictions to protect the
interests of employees' spouses and former spouses. Section 207
of the bill amends Sec. 8343a to provide analogous options and
restrictions to protect the interests of employees' domestic
partners and former domestic partners.
Sec. 208. Administration; regulations
5 U.S.C. Sec. 8347(n) requires the Director of the Central
Intelligence Agency (CIA) to take certain actions to administer
CSRS for CIA employees, including the collection of deposits
made by CIA employees' spouses and former spouses. Section 208
of the bill amends Sec. 8347(n) to require the Director to
likewise collect deposits made by CIA employees' domestic
partners and former domestic partners.
Sec. 209. Participation in the Thrift Savings Plan
5 U.S.C. Sec. 8351 authorizes employees who are covered by
the CSRS to contribute to the Thrift Savings Plan and includes
provisions to accommodate the respective rights of married and
formerly married employees and their spouses and former
spouses. Section 209 of the bill amends Sec. 8351 to
accommodate, in the same way, the respective rights of
employees who are or were in domestic partnerships and their
domestic partners and former domestic partners.
TITLE III--FEDERAL EMPLOYEES' RETIREMENT SYSTEM
Title III of the bill establishes domestic partnership
benefits under the Federal Employees' Retirement System (FERS),
which is the retirement program that covers most federal
employees who began service during 1987 or later. FERS
establishes both a defined benefit plan for covered employees
and the Thrift Savings Plan (TSP), which is a defined-
contribution program, in which employees covered by CSRS and
some other retirement systems, as well as those covered by
FERS, may participate.
FERS not only contributes to the retirement security of
covered employees, but also enables these employees to
contribute to the retirement security of their spouses and
children, including stepchildren. Title III of the bill amends
FERS's authorizing provisions (5 U.S.C. Sec. Sec. 8401-8479) to
enable federal employees who are in domestic partnerships to
likewise contribute to the retirement security of their
domestic partners and children, including children of their
domestic partners.
Subtitle A--General Provisions
Sec. 301. Definitions
Section 301 of the bill adds a definition of ``former
domestic partner'' to FERS's current definition section, 5
U.S.C. Sec. 8401. It parallels the definition of ``former
spouse'' in Sec. 8401 (i.e., at least 18 months of covered
service by the employee, and at least 9 months of marriage or
domestic partnership). These definitions are significant
because amendments made by other sections of the bill make
former domestic partners eligible for a FERS survivor annuity
under the same conditions as apply to former spouses.
Section 301 of the bill also adds definitions of ``domestic
partner'' and ``domestic partnership'' by cross referencing the
definitions in 5 U.S.C. Sec. 2501 (which is added by section
101(a) of the bill). (The section also adds a definition of
``Federal employee'' to make clear that only federal employees
covered by FERS--and not the small portion of FERS participants
who are not federal employees--are entitled to the benefits
conferred by this bill.)
Subtitle B--Basic Annuity
Sec. 311. Creditable service
5 U.S.C. Sec. 8411 requires OPM to prescribe rules for
determining the amount of FERS benefits paid to employees'
spouses and former spouses based on the amount of employees'
service that is creditable for purposes of the FERS and on
other factors. Section 311 of the bill amends Sec. 8411 by
requiring that OPM apply these same rules to determining the
amount paid to employees' domestic partners and former domestic
partners.
Sec. 312. Survivor reduction for a current spouse or a current domestic
partner
Under 5 U.S.C. Sec. 8416, married employees generally see
their annuities reduced at retirement, in order to fund
survivor annuities for their spouses, unless they and their
spouses jointly elect otherwise. Section 312 of the bill amends
Sec. 8416 to apply these provisions to employees in domestic
partnerships.
Sec. 313. Survivor reduction for a former spouse or former domestic
partner
5 U.S.C. Sec. 8417 reduces employees' annuities in order to
fund survivor annuities for their former spouses, and the
section establishes elections that can be exercised by
employees and their former and subsequent spouses. Section 313
of the bill amends Sec. 8417 to apply these provisions to
employees with former domestic partners and to former and
subsequent domestic partners.
Sec. 314. Survivor elections; deposit; offsets
For certain retired employees who become entitled after
retirement to elect to fund survivor annuities for former or
subsequent spouses, 5 U.S.C. Sec. 8418 establishes rules under
which the employees (or their survivors) deposit required
amounts into the Civil Service Retirement and Disability Fund.
Section 314 of the bill amends Sec. 8418 to apply the same
rules to employees with former or subsequent domestic partners
and to those domestic partners.
Sec. 315. Survivor reductions, computation
5 U.S.C. Sec. 8419 governs the amount by which employees
see their annuities reduced in order to fund survivor annuities
for their spouses or former spouses. Section 315 of the bill
amends Sec. 8419 to apply these rules to annuitants with
domestic partners and former domestic partners.
Sec. 316. Insurable interest reductions
5 U.S.C. Sec. 8420 allows employees to take reduced
annuities in order to provide annuities for individuals who
have an insurable interest in the employees, but this option is
generally only available to married employees if their spouses'
annuity rights are waived. Section 316 amends Sec. 8420 to
apply this provision to employees in domestic partnerships and
their domestic partners.
Sec. 317. Alternative forms of annuities
5 U.S.C. Sec. 8420a authorizes an alternative form of
annuity for employees who have critical medical conditions at
the time of retiring. It includes an option to provide an
annuity for surviving spouses, as well as provisions to
preserve annuity rights of current spouses and former spouses.
Section 317 of the bill amends Sec. 8420a to provide the same
option and protections for employees and their domestic
partners or former domestic partners.
Sec. 318. Lump-sum benefits; designation of beneficiary; order of
precedence
Under 5 U.S.C. Sec. 8424, an employee under certain
circumstances may apply to receive a lump sum credit in lieu of
an annuity, but subject to certain rights of a spouse or former
spouse to receive notice and to withhold consent. Section 318
of the bill amends Sec. 8424 to provide the same notification
and consent rights to a domestic partner or former domestic
partner.
5 U.S.C. Sec. 8424 also requires payment of a lump sum
under certain conditions when an employee or annuitant dies,
and sets an order of precedence for determining which survivors
are entitled to the payment. If the employee did not designate
beneficiaries, the widow or widower is first in line under the
order of precedence, and if there is no widow or widower, the
child or children are next in line. Section 318 of the bill
would amend Sec. 8424 so that a surviving partner has the same
position in the order of precedence as a widow or widower. 5
U.S.C. Sec. 8424 excludes the employee's stepchildren from the
definition of ``child'' for purposes of the order of
precedence, and section 318 of the bill would amend Sec. 8424
to likewise exclude children of the employee's domestic partner
(if they are not also the children of the employee).
Subtitle C--Thrift Savings Plan
Sec. 321. Benefits and election of benefits
If an employee dies having designated his or her surviving
spouse as beneficiary or having designated no beneficiary, 5
U.S.C. Sec. 8433 allows the surviving spouse to maintain the
employee's Thrift Savings Plan (TSP) account for the spouse's
lifetime. Section 321 of the bill amends Sec. 8433 to give that
same right to a surviving domestic partner.
Sec. 322. Annuities: methods of payment; election; purchase
5 U.S.C. Sec. 8433 authorizes employees who separate from
federal government employment to, under certain conditions,
convert their TSP balance into an annuity, and Sec. 8434
directs the Federal Retirement Thrift Investment Board (which
governs the TSP) to specify methods of payment from which
employees may choose, including options that include an annuity
for the spouse or former spouse of the employee. Section 322 of
the bill amends Sec. 8434 to give employees with domestic
partners or former domestic partners the same options.
Sec. 323. Protections for spouses, domestic partners, former spouses,
and former domestic partners
5 U.S.C. Sec. 8435 protects the interests of spouses,
former spouses, and surviving spouses by providing the right to
consent before an employee can withdraw TSP funds or convert
them into an annuity. Section 323 of the bill amends Sec. 8435
to likewise protect the interests of domestic partners, former
domestic partners, and surviving domestic partners.
Sec. 324. Justices and judges
5 U.S.C. Sec. 8440a authorizes justices and judges to
contribute to the TSP and specifies that their spouses' rights
will be governed by 5 U.S.C. Sec. 8351(b)(5), which specifies
the respective rights of married and formerly married employees
and their spouses and former spouses with respect to the
employees' TSP accounts. Section 324 of the bill would amend
Sec. 8440a so that the rights of justices and judges and their
domestic partners will likewise be governed by Sec. 8351(b)(5).
Subtitle D--Survivor Annuities
Sec. 331. Definitions
For establishing who may be entitled to a survivor annuity
under FERS, 5 U.S.C. Sec. 8441 defines terms including
``widow'', ``widower'', and ``child''. Section 331 of the bill
amends Sec. 8441 to add a definition of ``surviving partner''
that includes the same conditions as are in the definitions of
``widow'' and ``widower'', and amends the definition of
``child'' to include the child of an employee's domestic
partner under the same conditions as those under which a
stepchild is included. Also, building on Sec. 8441's exclusion
of married children from the definition of ``child'', section
331 adds an exclusion of children who are in domestic
partnerships.
Sec. 332. Rights of a widow, widower, or surviving partner
Section 332 amends 5 U.S.C. Sec. 8442, which sets forth the
annuity rights of widows and widowers, to give surviving
domestic partners those same rights. Also, a widow's or
widower's right to benefits generally terminates under
Sec. 8442 if the widow or widower remarries before age 55, and
section 332 of the bill amends the provision to likewise
generally terminate the rights to benefits if a widow or
widower enters into a domestic partnership before age 55, or if
a surviving partner enters into a subsequent domestic
partnership or marries before age 55.
Sec. 333. Rights of a child
Under 5 U.S.C. Sec. 8443, children may be entitled to an
annuity under certain circumstances, but the right terminates
if the children marry. Section 333 of the bill amends Sec. 8443
to likewise terminate children's right to an annuity if they
enter into a domestic partnership. Also, as noted above,
section 331 of the bill amends the definition of ``child''
under 5 U.S.C. Sec. 8441 so that domestic partners' children
are included in the definition under the same conditions as
stepchildren; accordingly, the children of domestic partners
may qualify for an annuity under the same conditions as
stepchildren under Sec. 8443.
Sec. 334. Rights of a former spouse or former domestic partner
5 U.S.C. Sec. 8445 provides that former spouses may have a
right to an annuity under certain circumstances, and section
317 of the bill amends Sec. 8445 to provide that former
domestic partners may likewise have a right to an annuity under
the same circumstances. Also, under Sec. 8445 the right to an
annuity may terminate under certain conditions if former
spouses remarry, and section 334 amends Sec. 8445 to likewise
terminate former spouses' right to an annuity if they
subsequently enter into a domestic partnership or if former
domestic partners subsequently enter into other domestic
partnerships or marry.
Subtitle E--General and Administrative Provisions
Sec. 341. Authority of the Office of Personnel Management
5 U.S.C. Sec. 8461 authorizes the Director of Central
Intelligence to collect deposits to the Thrift Savings Fund
from employees of the Central Intelligence Agency (CIA) and
their spouses, former spouses, and survivors. Section 341 of
the bill authorizes the Director to likewise collect deposits
to the Fund from CIA employees' domestic partners and former
domestic partners.
Sec. 342. Cost-of-living adjustments
Section 342 amends 5 U.S.C. Sec. 8462 to provide that cost-
of-living adjustments to surviving partners' annuities are
calculated the same way as cost-of-living adjustments to
widows' and widowers' annuities are calculated.
Subtitle F--Federal Retirement Thrift Investment Management System
Sec. 351. Fiduciary responsibilities; liability and penalties
5 U.S.C. Sec. 8477 states the fiduciary duties of members
of the Federal Investment Retirement Thrift Investment Board,
the Executive Director of the Board, and certain other managers
of the Thrift Savings Fund. Among other things, fiduciaries
must prohibit certain transactions between the Fund and a
``party of interest,'' which term is defined in Sec. 8477 to
include a fiduciary's spouse or other listed relatives or the
relatives' spouses. Section 351 amends Sec. 8477 to likewise
prohibit transactions with a fiduciary's domestic partner by
adding a fiduciary's domestic partner and listed relatives'
domestic partners to the definition of ``party in interest.''
TITLE IV--INSURANCE BENEFITS
Sec. 401. Life insurance
Section 401 of the bill amends the provisions that
authorize the Federal Employees' Group Life Insurance (FEGLI)
Program, which provides life insurance options to federal
employees, including ``Basic Insurance'' on the life of an
employee, additional ``Optional Insurance'' on the life of an
employee, and ``Optional Life Insurance on Family Members'' of
an employee. All employees are automatically enrolled in the
Basic Insurance unless they elect not to be, whereas employees
must elect if they wish to be covered under the Optional
insurance programs.
FEGLI is authorized under 5 U.S.C. chapter 87
(Sec. Sec. 8701-8716). If an employee does not designate a
beneficiary under FEGLI, Sec. 8705(a) establishes an order of
precedence of who will collect the proceeds upon the employee's
death. Under that order of precedence, the widow or widower is
first in line. Section 401(a)(2) of the bill amends
Sec. 8705(a) to afford a surviving domestic partner the same
status as a widow or widower.
Under 5 U.S.C. Sec. 8714c, employees may elect to purchase
life insurance on the lives of the employee's family members,
and Sec. 8701(d) defines ``family members'' to include an
employee's spouse and dependent children, including
stepchildren, but excluding married children. Sections
401(a)(1) and (3) of the bill amend 5 U.S.C. Sec. 8701(d) and
Sec. 8714c so that insurance on family members under FEGLI also
covers the lives of federal employees' domestic partners and
partners' children and does not cover the lives of children who
enter into domestic partnerships.
Sec. 402. Health insurance
The Federal Employee Health Benefits (FEHB) Program
provides health benefits to federal employees and gives them
the option of obtaining health coverage not only for
themselves, but also for their spouses and children, including
stepchildren. The FEHB program is authorized under 5 U.S.C.
chapter 89 (Sec. Sec. 8901-8914), and section 402 of the bill
would amend those provisions to enable federal employees to
provide similar family coverage to their domestic partners and
children of domestic partners. Also, surviving spouses and
former spouses of federal employees may gain their own
eligibility to enroll in a health benefits plan under FEHB
under certain conditions, and the amendments under section 402
of the bill would extend similar eligibility to surviving
domestic partners and former domestic partners.
Subsection (a)--Definitions. 5 U.S.C. Sec. 8901 contains
definitions for the provisions authorizing FEHB, including a
definition of ``member of family'' that means the spouse and a
child, including a stepchild if applicable conditions are
satisfied. Section 401(a) of the bill would amend the
definition to include the domestic partner and a child of the
domestic partner. This definition is significant because, under
other provisions of the statute, it determines what individuals
are covered under family FEHB plans and what individuals, if
they become survivor annuitants, may be eligible to enroll in
an FEHB plan.
Section 402(a) of the bill also adds a new definition of
``former domestic partner'', which includes the same conditions
that are now in the definition of ``former spouse'' in 5 U.S.C.
Sec. 8901. The definition of ``former spouse'' in Sec. 8901
excludes any individual who remarries before age 55, and,
accordingly, section 402(a) of the bill amends that definition
to also exclude any individual who enters a domestic
partnership before age 55. Likewise, the new definition of
``former domestic partner'', which is added by section 402(a)
of the bill, excludes any individual who, before age 55, enters
into another domestic partnership or marries. These definitions
are significant because a former spouse may be eligible to
enroll in an FEHB plan, and, under amendments made by other
subsections of the bill, a former domestic partner may be
eligible to enroll in an FEHB plan under the same conditions as
a former spouse.
Also, 5 U.S.C. Sec. 8901 excludes any married children from
the definition of ``member of family'', and the amendments
likewise exclude children in domestic partnerships from the
definition. Section 402(a) of the bill also adds definitions of
``domestic partner'' and ``domestic partnership'' by cross
reference to 5 U.S.C. Sec. 2501, which would be added by
section 101 of the bill. (Section 402(a) also adds definitions
of ``Federal employee'' and ``Federal annuitant'' to make clear
that only federal employees and former federal employees, and
not the small portion of FEHB participants who are neither, are
entitled to the benefits conferred by this bill.)
Subsection (b)--Contracting Authority. 5 U.S.C. Sec. 8902
authorizes OPM to contract with qualified insurance carriers
and sets eligibility criteria for carriers and minimum
requirements for contracts. Section 402(b) of the bill amends
Sec. 8902 by requiring contracts for group insurance to meet
the same coverage requirements for former domestic partners as
the statute now provides for former spouses.
Subsection (c)--Debarment and Other Sanctions. In
describing the criteria for debarring or otherwise sanctioning
providers, 5 U.S.C. Sec. 8902a defines and uses the terms
``individual covered under this chapter'' and ``covered
individual''. Those definitions include a former spouse, and
section 402(c) of the bill would amend the definitions to
likewise include a former domestic partner.
Subsection (d)--Health Benefits Plan. Under 5 U.S.C.
Sec. 8903, OPM may contract for a number of different kinds of
plans, including a single government-wide preferred-provider
plan offering a complete range of health benefits, called the
Service Benefit Plan. Sec. 8903 lists the classes of
individuals, including former spouses, who must be covered
under this plan, and section 402(d) of the bill amends
Sec. 8903 by adding former domestic partners to the list.
Subsection (e)--Election of Coverage. After the termination
of an employee's marriage, 5 U.S.C. Sec. 8905(c) entitles the
employee's former spouse to enroll in an FEHB plan and to elect
coverage that may include a child of the employee and the
former spouse under certain conditions. Section 402(e)(1) of
the bill adds a paragraph to Sec. 8905(c) directing OPM to
prescribe regulations to ensure parity of treatment between
former spouses and former domestic partners and between
children of a dissolved marriage and children of a terminated
domestic partnership.
Also, 5 U.S.C. Sec. 8905(e) specifies that two married
federal employees who are each eligible to enroll under FEHB
may not both enroll in family coverage. Section 402(e)(2) of
the bill amends that provision so that two such employees who
are domestic partners may not both enroll in family coverage.
Provisions in Sec. Sec. 8905(f)-(g) that entitle enrollees,
including former spouses, to change their enrollment are
amended to apply likewise to former domestic partners.
Subsection (f)--Continued Coverage. 5 U.S.C. Sec. 8905a
establishes individuals' rights to continue FEHB coverage if
such coverage would otherwise terminate for various reasons,
including divorce, annulment, or legal separation. Section
402(f) of the bill amends Sec. 8905a to direct OPM to prescribe
regulations ensuring parity of treatment between former spouses
and former domestic partners and between children of a
dissolved marriage and children of a terminated domestic
partnership.
Subsection (g)--Coverage of Restored Employees and Survivor
or Disability Annuitants. For surviving spouses whose survivor
annuity was terminated because of remarriage but was later
restored, 5 U.S.C. Sec. 8908 includes rules under which the
surviving spouses can restore their coverage under FEHB plans.
Section 402(g) of the bill amends Sec. 8908 so that it would
apply in the same way where a surviving spouse's annuity
terminated because of entry into a domestic partnership, and
where a former domestic partner's annuity terminated because of
entry into another domestic partnership or a marriage.
Subsection (h)--Employees Health Benefits Fund. 5 U.S.C.
Sec. 8909(d) addresses how the merger of employee organizations
that sponsor an FEHB plan can affect who may remain enrolled in
the plan, including former spouses. Section 402(h) of the bill
amends the provision to refer likewise to former domestic
partners.
Subsection (i)--Regulations. 5 U.S.C. Sec. 8913(c) requires
OPM to prescribe regulations providing for the beginning and
ending dates of coverage under various circumstances, and in
that context refers to former spouses. Section 402(i) of the
bill amends the provision to refer likewise to former domestic
partners.
Subsection (j)--Effective Date. Section 402(j) provides
that the amendments made by section 402 apply with respect to
calendar years beginning after the end of the 6-month period
beginning on the date of the enactment of the legislation.
Sec. 403. Enhanced dental benefits
Supplemental dental coverage under the Federal Employees
Dental and Vision Insurance Program (FEDVIP) is authorized
under 5 U.S.C. chapter 89A (Sec. Sec. 8951-8962). 5 U.S.C.
Sec. 8956(a) specifies that two married federal employees who
are each eligible to enroll for enhanced dental coverage may
not both enroll in family coverage, and section 403(a)(1) of
the bill amends that provision so that two such employees who
are domestic partners may likewise not both enroll in family
coverage. Also, for a surviving spouse whose survivor annuity
is terminated and is later restored, 5 U.S.C. Sec. 8957
includes rules under which the surviving spouse may continue
enrollment in dental benefits. Section 403 amends the provision
so that those rules likewise apply where a surviving domestic
partner's annuity terminated and is later restored.
Sec. 404. Enhanced vision benefits
Supplemental vision coverage under FEDVIP is authorized
under 5 U.S.C. chapter 89B (Sec. Sec. 8981-8992). 5 U.S.C.
Sec. 8986(a) specifies that two married federal employees who
are each eligible to enroll for enhanced vision benefits may
not both enroll in family coverage, and section 404(a)(1) of
the bill amends that provision so that two such employees who
are domestic partners may likewise not both enroll in family
coverage. Also, for a surviving spouse whose survivor annuity
is terminated and is later restored, 5 U.S.C. Sec. 8987
includes rules under which the surviving spouse may continue
enrollment in vision benefits. Section 404 amends the provision
so that those rules likewise apply where a surviving domestic
partner's annuity is terminated and is later restored.
Sec. 405. Long-term care insurance
The Federal Long Term Care Insurance Program (FLTCIP),
which provides group long-term care insurance for federal
employees and annuitants, members and retired members of the
uniformed services, and qualified relatives, is authorized
under 5 U.S.C. chapter 90 (Sec. Sec. 9001-9009). The definition
of ``qualified relative'' under 5 U.S.C. Sec. 9001(5) includes,
among others, a spouse, parent-in-law, and stepchild, subject
to specified conditions. Section 405(a)(1) of the bill would
amend the definition of ``qualified relative'' to add a
domestic partner of a federal employee, a child of a domestic
partner, and a parent of a domestic partner, under those same
conditions. (The definition also cross references the
definition of ``domestic partner'' in 5 U.S.C. Sec. 2501 and
the definition of federal employee in 5 U.S.C. Sec. 8901, both
of which are added by other sections of the bill.)
5 U.S.C. Sec. 9002 imposes upon insurance carriers seeking
to participate in the federal long-term care program certain
conditions, including that underwriting standards should treat
the spouse of an employee as much like the employee as
practicable. Section 405(a)(2) of the bill amends that
provision to apply likewise to the domestic partner of an
employee. Also, section 405(b) of the bill provides that the
amendments to the long-term care provisions shall apply with
respect to calendar years beginning after the end of the 6-
month period beginning on the date of enactment of the
legislation.
TITLE V--TRAVEL, TRANSPORTATION, AND SUBSISTENCE
Sec. 501. Reimbursement for taxes incurred on money received for travel
expense
When an agency reimburses an employee's travel expenses,
the head of the agency is authorized under 5 U.S.C. Sec. 5706c
to also reimburse Federal, State, and local income taxes
incurred by the employee or, if filing jointly, by the employee
and the employee's spouse on account of the reimbursement.
Section 502 of the bill amends Sec. 5706c so that, in
jurisdictions where the employee and the domestic partner can
file jointly, the agency head may reimburse the employee's and
the domestic partner's taxes. Section 501 also specifies that
these amendments to Sec. 5706c will apply for the taxable year
beginning after the end of the 6 month period beginning on the
date of enactment of the Act.
Sec. 502. Definitions
5 U.S.C. chapter 57, subchapter II, (Sec. Sec. 5721-5739)
provides general authority to reimburse employees' travel and
transportation expenses. Sections 501 through 505 of the bill
make amendments to these provisions. Section 502 of the bill
adds to the definitions section (5 U.S.C. Sec. 5721) the term
``domestic partner'' and gives it the meaning given in 5 U.S.C.
Sec. 2501 (which would be added under section 101 of the bill).
Sec. 503. Relocation expenses of employees transferred or reemployed
When an employee transfers in the interest of the
Government between official stations within the United States,
5 U.S.C. Sec. 5724a authorizes the agency to pay certain
relocation expenses, including the transportation expenses of
the employee and spouse for travel to seek a permanent
residence at the new official station. Section 503 of the bill
amends Sec. 5724a to likewise authorize transportation expenses
for an employee and domestic partner. Section 503 also
specifies that the amendment applies with respect to expenses
incurred after the 6 month period beginning on the date of
enactment.
Sec. 504. Taxes on reimbursements for travel, transportation, and
relocation expenses of employees transferred
When the government covers an employee's moving or storage
expenses or other relocation expenses, 5 U.S.C. Sec. 5724b
authorizes the agency to reimburse any resulting federal,
State, and local income taxes incurred by the employee or, if
filing jointly, by the employee and the employee's spouse.
Section 504 of the bill amends Sec. 5724b so that, in
jurisdictions where an employee and a domestic partner can file
jointly, the agency may also reimburse the employee's and
domestic partner's taxes. Section 504 also provides that the
amendments apply with respect to taxable years beginning after
the end of the 6 month period beginning on the date of
enactment.
Sec. 505. Relocation expenses of an employee who is performing an
extended assignment
When an employee is given an extended assignment, 5 U.S.C.
Sec. 5737 authorizes the agency to pay certain relocation
expenses, including travel and transportation expenses of the
employee and spouse to seek a new residence at the assignment
location. Section 505 of the bill amends the provision to
likewise authorize travel and transportation expenses for an
employee and domestic partner. Section 505 also provides that
the amendment shall apply with respect to expenses incurred
after the end of the 6 month period beginning on the date of
enactment.
TITLE VI--COMPENSATION FOR WORK INJURIES
Title VI of the bill makes amendments to provisions that
authorize the Federal Employees' Compensation Act (FECA), which
is the workers' compensation program for federal employees.
FECA, which is authorized under 5 U.S.C. chapter 81
(Sec. Sec. 8101-8193), provides compensation for disability or
death of an employee resulting from injury sustained while in
the performance of the employee's duty. In case of death, FECA
provides benefits to widows and widowers, children, including
stepchildren, and certain other survivors. The bill amends FECA
to extend its coverage to surviving domestic partners and their
children.
Sec. 601. Definitions
5 U.S.C. Sec. 8101 establishes definitions for the relevant
portions of FECA. Section 601 of the bill would add to
Sec. 8101 new definitions of ``domestic partner'' and
``domestic partnership'', including criteria for establishing
and terminating domestic partnerships, that are similar to, but
not identical to, those in the general domestic partnership
program under 5 U.S.C. Sec. Sec. 2501-2502, as added by section
101 of the bill. These new FECA definitions and criteria are
needed because FECA covers broader groups of individuals than
other federal civil service laws, including unpaid federal
volunteers, additional groups of volunteers and trainees (for
example, Peace Corps volunteers, and Job Corps enrollees), and
others. Under the new definitions, any domestic partnership
established under 5 U.S.C. Sec. Sec. 2501-2502 would qualify as
a domestic partnership under FECA. But, in addition, for same-
sex relationships where neither individual is a federal
employee covered under Sec. Sec. 2501-2502, but one or both are
federal employees or volunteers covered under FECA, the
Secretary of Labor is authorized to exercise the OPM Director's
authorities under Sec. 2502 to establish the process by which
domestic partnerships are formed and terminated. (Section 601
of the bill also adds a definition of ``Federal employee'' to
make clear that only federal employees or federal volunteers,
and not employees of contractors or of other non-federal
employers, are entitled to benefits conferred by the bill.)
For purposes of establishing who may be eligible to receive
FECA benefits as a survivor, section 601 of the bill also adds
a definition of ``surviving partner'' and gives it a meaning
parallel to the current definitions of ``widow'' and
``widower'' in 5 U.S.C. Sec. 8101. The definition of ``child''
in Sec. 8101 includes stepchildren, and section 601 would amend
that definition to likewise include children of a federal
employee's domestic partner. The definitions of ``child'',
``brother'', and ``sister'' in Sec. 8101 exclude children,
brothers, and sisters who are married, and section 601 of the
bill would amend these definition to likewise exclude children,
brothers, and sisters who are in domestic partnerships.
Sec. 602. Death gratuity for injuries in connection with employee's
service with an Armed Force
For federal employees who die in connection with service as
civilians with the Armed Forces in qualifying military
operations (``contingency operations''), 5 U.S.C. Sec. 8102a
authorizes death gratuities for prescribed survivors and
establishes an order of precedence for payment of benefits,
under which surviving spouses come first, and, if none,
children, including stepchildren, come next. Section 602 of the
bill would amend Sec. 8102a to give domestic partners the same
rank as surviving spouses and to give children of domestic
partners the same rank as stepchildren.
Sec. 603. Beneficiaries of awards unpaid at death; order of precedence
For employees who are eligible for FECA compensation due to
injury, and then die of other causes while still owed benefits,
5 U.S.C. Sec. 8109 provides an order of precedence for the
payment of unpaid compensation. Generally, children and widows
and widowers get equal rank: if there is no child, the widow or
widower comes first; if there is no widow or widower, the child
or children come first; and if there are both, one half goes to
the widow or widower, and one half goes to the child or
children. Section 603 of the bill amends Sec. 8109 so that
surviving partners receive the same rank as widows and
widowers. Also, as noted above, section 601 of the bill amends
the applicable definition of ``child'' in 5 U.S.C. Sec. 8101;
consequently, children of domestic partners are treated the
same as stepchildren.
Sec. 604. Augmented compensation for dependents
5 U.S.C. Sec. 8110 increases the FECA compensation of
employees who have one or more dependents and defines the term
``dependent'' for purposes of the section. Section 604 of the
bill amends the definition to include domestic partners under
the same conditions as wives and husbands. Also, section 604
amends the definition to exclude children who are in domestic
partnerships under the same conditions as married children are
excluded.
Sec. 605. Limitations on right to receive compensation
5 U.S.C. Sec. 8116(c) provides that, for the injury or
death of an employee, liability under FECA is the only
liability of the United States to the employee or any other
person entitled to recover, including the employee's spouse.
Section 605 of the bill amends Sec. 8116(c) to clarify that
FECA is likewise the exclusive liability to the employee's
domestic partner.
Sec. 606. Compensation in case of death
In a case where an employee dies from injury sustained in
the performance of duty, 5 U.S.C. Sec. 8133 establishes which
survivors are entitled to monthly compensation. Section 606 of
the bill amends this provision so that a surviving partner is
treated in the same manner as a widow or widower. Also,
Sec. 8133 provides that monthly compensation terminates if a
widow or widower remarries before age 55, and section 606 of
the bill amends Sec. 8133 to likewise terminate benefits if a
widow or widower enters a domestic partnership before age 55 or
if a surviving partner enters into another domestic partnership
or marries before age 55. Also under Sec. 8133, if other
surviving relatives marry while receiving benefits, those
benefits terminate, and the amendments to Sec. 8133 would
likewise terminate benefits if those surviving relatives enter
into domestic partnerships. Finally, just as Sec. 8133 now
provides that a widow or widower cannot collect FECA benefits
on account of more than one spouse, the amendments clarify that
neither a widow or widower nor a surviving partner may collect
FECA benefits on account of more than one spouse or domestic
partner.
Sec. 607. Lump-sum payment
5 U.S.C. Sec. 8135(a) provides that the Government's FECA
liability may be discharged by a lump-sum payment under certain
circumstances, and it caps the payment to a widow or widower.
Section 607 of the bill amends the provision to apply these
provisions to a surviving partner.
Also, 5 U.S.C. Sec. 8135(b) authorizes a lump-sum payment
to a widow or widower who remarries before age 55 (and
therefore loses the right to receive monthly compensation under
5 U.S.C. Sec. 8133). Section 607 of the bill amends this
provision to likewise provide lump-sum payment to a widow or
widower who enters into a domestic partnership before age 55
and to a surviving partner who, before age 55, enters into
another domestic partnership or marries.
Sec. 608. Employees of nonappropriated fund instrumentalities
Subsection (a)--In General. Employees paid from
nonappropriated funds of the military exchanges and similar
instrumentalities of the Armed Forces (nonappropriated fund
employees) are not covered by FECA. Instead, 5 U.S.C.
Sec. Sec. 8171-8173 puts these employees under the Longshore
and Harbor Workers' Compensation Act (Longshore Act), which is
a federal workers' compensation statute that generally applies
to specified groups of non-federal employees.
The Longshore Act provides compensation for injury or death
arising out of and in the course of employment. Section 608(a)
of the bill does not amend the Longshore Act itself, but
instead adds a new subsection (e) to 5 U.S.C. Sec. 8101,
establishing that, for nonappropriated fund employees in
domestic partnerships who suffer compensable injuries and die,
the Longshore Act will be applied in a manner to make the
employees' surviving domestic partners and surviving children
of domestic partners eligible for compensation to the same
extent as surviving spouses, children and stepchildren.
New 5 U.S.C. Sec. Sec. 8171(e)--as added by section 608 of
the bill
New Sec. Sec. 8171(e)(1)-(3). These paragraphs include the
definitions for the terms ``domestic partner'', ``domestic
partnership'', and ``surviving partner'' for purposes of
extending the Longshore Act to nonappropriated fund employees.
These three definitions are substantially the same as the
corresponding definitions that section 601 of the bill adds to
5 U.S.C. Sec. 8101 for FECA.
New Sec. 8171(e)(4)(A). Section 2(14) of the Longshore Act
(33 U.S.C. Sec. 902(14)) defines the term ``child'' to include
a stepchild under certain conditions and defines the terms
``children'', ``brothers'', and ``sisters'' to exclude those
who are married unless wholly dependent on the employee. For
purposes of making this section applicable to nonappropriated
fund employees, new 5 U.S.C. Sec. 8171(e)(4)(A) makes the child
of a domestic partner eligible for benefits under the same
conditions as a stepchild, and makes children, brothers, and
sisters who are in domestic partnerships ineligible for
benefits under the same conditions as those who are married are
ineligible.
New Sec. 8171(e)(4)(B). When employees receiving benefits
under the Longshore Act die of causes other than the
compensable injury, section Sec. 8(d) of the Longshore Act (33
U.S.C. Sec. 908(d)) provides an order of precedence for payment
to survivors, under which the widow or widower and the child or
children are generally granted equal rank. For applying this
section to nonappropriated fund employees, new 5 U.S.C.
Sec. 8171(e)(4)(C) would give a surviving partner the same rank
as a widow or widower (and, as noted above, the child of a
domestic partner would have the status of a ``child'' under new
Sec. 8171(e)(4)(A) under the same conditions as would a
stepchild under existing Longshore Act provisions.)
New Sec. 8171(e)(4)(C). When the compensable injury causes
death, section 9 of the Longshore Act (33 U.S.C. Sec. 909)
establishes the amount of death benefit paid to survivors,
including a widow or widower and any surviving child or
children, under various circumstances. For applying this
section to nonappropriated fund employees, new 5 U.S.C.
Sec. 8171(e)(4)(D) causes surviving partners to be treated the
same as widows and widowers. (Also, as noted above, new
Sec. 8171(e)(4)(A) causes the child of a domestic partner to
have the status of a ``child'' under the same conditions as a
stepchild.) For widows and widowers who remarry, section 9 of
the Longshore Act provides for a lump sum payment in lieu of
monthly benefits. New Sec. 8171(e)(4)(D) of the bill treats
widows and widowers the same if they enter into domestic
partnerships, and treats surviving partners the same if they
enter into subsequent domestic partnerships or marry.
Subsection (b)--Exclusive Liability. 5 U.S.C. Sec. 8173
provides that, for the injury or death of a nonappropriated
fund employee, liability under Sec. 8171-8172 is the only
liability of the United States to the employee or any other
person entitled to recover, including the employee's spouse.
Section 608(b) of the bill amends Sec. 8173 to clarify that
liability under Sec. Sec. 8171-8172 is likewise the exclusive
liability to the employee's domestic partner.
Sec. 609. Effective date
Section 609 of the bill establishes several rules about how
the amendments to FECA and to the provisions that apply the
Longshore Act to nonappropriated fund employees will go into
effect.
Subsection (a)--In General. Section 608(a) of the bill
states that the amendments to FECA and to the provisions
applying the Longshore Act will take effect on the date of
enactment of the bill and will apply with respect to any injury
or death, regardless of whether it occurs before, on, or after
that date.
Subsection (b)--Timely Claim Required; Limitation on
Payments. Under section 608(b), no compensation is payable
unless a timely claim for that compensation is filed, and no
compensation is payable with respect to any period commencing
before the date of enactment of the legislation.
Subsection (c)--Allowability of Claims. Section 608(c) of
the bill establishes two rules governing whether an original
claim for a disability or death that occurred before the date
of enactment (and that would not otherwise be payable but for
the enactment of the amendments to FECA and to the provisions
applying the Longshore Act) may be allowed:
First, such claim will not be allowed if, as of
the date of enactment, a claim based on that disability or
death would no longer be timely because of the lapse of time
since the disability or death occurred.
Second, if the claim is not time-barred under the
first rule as of the date of enactment, the time for filing the
claim will be extended, to allow time to establish a domestic
partnership. Specifically, if the claim is not time-barred as
of the date of enactment, the timeliness of the claim will be
determined as though the applicable time limitations do not
begin to run until the date on which the provisions of 5 U.S.C.
Sec. 2502(a) (which are added by section 101 of this bill),
under which domestic partnerships can be established, become
effective.
Subsection (d)--Payments for Prior Periods Not Affected.
Finally, section 609(d) states that, if compensation has
already been paid to any individual whose entitlement to
compensation is terminated or reduced as a result of the
enactment of this title, that compensation may not be
recovered.
TITLE VII--EMPLOYEE LEAVE; DEATH OR CAPTIVITY COMPENSATION; OTHER
EMPLOYEE BENEFITS
Sec. 701. Voluntary transfers of leave; voluntary leave bank program
Subsection (a)--Voluntary Transfers of Leave. 5 U.S.C.
chapter 63, subchapter III (Sec. Sec. 6331-6340) requires OPM
to establish a program under which employees may voluntarily
transfer leave from their accounts to the account of particular
other employees who need leave because of medical emergencies
involving them or their family members. Section 701(a) of the
bill amends 5 U.S.C. Sec. 6333 to require OPM's regulations to
afford domestic partners the same status as spouses.
Subsection (b)--Voluntary Leave Bank Program. 5 U.S.C.
chapter 63, subchapter IV (Sec. Sec. 6361-6373) requires OPM to
establish a program under which employees may voluntarily
contribute their leave to a bank established by their employing
agencies, so that the banked leave may be made available to
other employees who need it because of medical emergencies
involving them or their family members. Section 701(b) of the
bill amends 5 U.S.C. Sec. 6362 to require that OPM's
regulations on the administration of the voluntary leave bank
program ensure that a domestic partner is afforded the same
status as a spouse.
Sec. 702. Family and medical leave
The Family and Medical Leave Act of 1993 (FMLA) is a
national labor law under which employees are entitled to up to
12 weeks of unpaid leave during any 12-month period for the
following purposes: the birth and care of a child; the
placement of a child with the employee for adoption or foster
care; the care of a spouse, child, or parent who has a serious
health condition; or a serious health condition of the
employee.
Section 702 of the bill modifies FMLA rights for federal
employees under OPM's government-wide leave program, as well as
those in congressional offices, in Presidential offices, and at
the Government Accountability Office, to enable employees who
are in domestic partnerships to take FMLA leave to care for
domestic partners with serious health conditions to the same
extent that married employees may take FMLA leave to care for
spouses with serious health conditions; and to care for
domestic partners' children with serious health conditions to
the same extent as married employees may take FMLA leave to
care for stepchildren with serious health conditions. The bill
does not affect FMLA coverage for any employees other than the
federal employees specified in the bill.
Subsection (a)--In General. 5 U.S.C. chapter 63, subchapter
V, (Sec. Sec. 6381-6387) incorporates Family and Medical Leave
rights into the leave program that covers most federal
employees. 5 U.S.C. Sec. 6382 now entitles federal employees to
take FMLA leave to care for their spouses who have serious
health conditions, and bill section 702(a) amends this
provision to grant employees the right to take FMLA leave to
care for their domestic partners who have serious health
conditions. Also, an employee can take leave to care for a son
or daughter who has a serious health condition, and 5 U.S.C.
Sec. 6381 defines ``son or daughter'' to include a biological,
adopted, or foster child of an employee's spouse. The bill
amends that definition to include a biological, adopted, or
foster child of an employee's domestic partner. Finally, 5
U.S.C. Sec. 6383 requires employees to provide certifications
for purposes of FMLA leave, and that provision is amended so
that employees with domestic partners have the same obligation
provide certifications as married employees.
Subsection (b)--Congressional Accountability. The
Congressional Accountability Act of 1995 (CAA) applies the
rights and protections of several employment and other laws,
including the FMLA, to congressional offices and to certain
congressional instrumentalities and their employees. Section
702(b) of the bill amends section 202 of the CAA (2 U.S.C.
Sec. 1312) by adding a new subsection (f), under which
employees of congressional offices and of the General
Accountability Office may take FMLA leave to take care of their
domestic partners with serious health conditions and their
domestic partners' children with serious health conditions.
Subsection (c)--Presidential and Executive Office
Accountability. 3 U.S.C. chapter 5 (Sec. Sec. 401-471) makes
several employment and other laws, including the FMLA,
applicable to Presidential and Vice Presidential offices and
offices within the Executive Office of the President and to
their employees. Section 702(c) of the bill amends 3 U.S.C.
Sec. 412 by adding a new subsection (e), under which employees
in those offices may take FMLA leave to take care of their
domestic partners with serious health conditions and their
domestic partners' children with serious health conditions.
Sec. 703. Settlement of accounts
The rules for settling accounts between employees and their
employing agencies are codified in 5 U.S.C. chapter 55,
subchapter VIII (Sec. Sec. 5581-5584). When an employee dies
without having specified a beneficiary, Sec. 5582 provides that
any money due the employee is paid to the widow or widower in
precedence over other survivors. Section 703(b) of the bill
amends the order of precedence under Sec. 5582 so that a
surviving domestic partner has the same status as a widow or
widower. Also, Sec. 5581 provides definitions for purposes of
the provisions on settlement of accounts, and section 703(a) of
the bill adds a definition of ``domestic partner'', having the
meaning given in Sec. 2501 (which is added by section 101 of
the bill).
Sec. 704. Benefits for captives
When a federal employee is in captive or missing status due
to hostile action, 5 U.S.C. Sec. 5569 provides that the agency
will pay certain expenses of family members under regulations
prescribed by the President. Section 704 of the bill adds a
provision to Sec. 5569 requiring the President to prescribe
regulations that ensure domestic partners are afforded the same
rights as spouses.
Sec. 705. Compensation for disability or death
When an employee or family member suffers death or
disability caused by hostile action, 5 U.S.C. Sec. 5570
authorizes the payment of compensation, under regulations
prescribed by the President. Section 705 of the bill adds a
provision to Sec. 5570 requiring the President to prescribe
regulations that ensure domestic partners are afforded the same
rights as spouses.
Sec. 706. Annuity of the comptroller general
Under 31 U.S.C. chapter 7, subchapter V (Sec. Sec. 771-
779), the Comptroller General (CG) may become entitled to an
annuity after having served more than 10 years or by meeting
certain other conditions, and the CG's spouse and children,
including stepchildren, may also become eligible for an annuity
or other benefits under certain circumstances. Section 706 of
the bill amends these provisions to enable a CG who has a
domestic partner to likewise provide for the CG's domestic
partner and children, including any children of the domestic
partner.
Subsection (a)--Definitions. 31 U.S.C. Sec. 771 contains
definitions for the sections establishing an annuity for the
CG, and section 706(a) of the bill adds a definition of
``surviving partner'', which includes the same conditions that
are now in the definition of ``surviving spouse'' in Sec. 771.
Also, section 706(a) amends the definition of ``dependent
child'' to treat the child of a domestic partner of a CG in the
same manner as a stepchild.
Subsection (b)--Election of survivor benefits. Under 31
U.S.C. Sec. 773, a CG may elect to take a reduction in pay and
annuity in order to provide survivor benefits, which, under 31
U.S.C. Sec. 774, may be available to a surviving spouse or a
dependent child. Section 706(b) of the bill makes conforming
amendments to Sec. 773 so that a CG in a domestic partnership
and the CG's domestic partner are treated the same way.
Subsection (c)--Survivor annuities. Under 31 U.S.C.
Sec. 774, a CG's surviving spouse or dependent child may become
entitled to a survivor annuity if the CG dies in office or
while receiving an annuity and if other conditions are met.
Section 706(c) of the bill amends Sec. 774 to treat a surviving
domestic partner the same as a surviving spouse. Also, the
child of a domestic partner might qualify for a survivor
annuity under Sec. 774 under the same conditions as a
stepchild, because, as noted above, section 706(a) of the bill
would amend the definition of ``dependent child'' in 31 U.S.C.
Sec. 771 so that the child of a domestic partner would come
within that definition under the same conditions as a
stepchild.
Subsection (d)--Refunds. Under various circumstances, such
as if a CG leaves office without having served over 10 years or
meeting other conditions for receiving an annuity, 31 U.S.C.
Sec. 775 provides for a lump-sum refund to the CG of the
amounts contributed towards the annuity by the CG or by
deductions from the CG's pay, plus interest. In situations
where the CG has died before the refund is made, Sec. 775 also
provides the order of precedence for who is entitled to receive
it. Under this order of precedence, a surviving spouse is first
in line, and, if there is none, the children are second.
Section 706(d) of the bill amends Sec. 775 so that a surviving
domestic partner has the same rights as a surviving spouse
under the order of precedence. (The term ``child'' is not
defined for purposes of Sec. 775, and the bill makes no
amendment with respect to the meaning of that term.)
Subsection (e)--Payment of survivor benefits. 31 U.S.C.
Sec. 776 provides that the annuity rights of a CG's surviving
spouse terminate if the individual remarries before age 55, and
provide that the annuity rights of a dependent child terminate
if the individual marries. Section 706(e) of the bill amends
these provisions to likewise terminate the rights of a
surviving spouse who enters into a domestic partnership before
age 55, of a surviving partner who enters into a subsequent
domestic partnership or marries before age 55, or of a
dependent child who enters into domestic partnership. Section
706(e) of the bill further amends 31 U.S.C. Sec. 776 to require
that, if a domestic partner dies and a dependent child
survives, the annuity of the dependent child is to be
recomputed under the same terms as are now required under
Sec. 776 if a surviving spouse dies and a dependent child
survives. (Also, the child of a domestic partner might qualify
for a survivor benefit as a dependent child, because, as noted
above, section 706(a) of the bill amends the definition of
``dependent child'' in 31 U.S.C. Sec. 771 so that the child of
a domestic partner comes within that definition under the same
conditions as a stepchild.)
Subsection (f)--Annuity increases. 31 U.S.C. Sec. 777
establishes the rules for increasing the amounts of annuities,
and section 706(f) of the bill amends this provision so that a
surviving domestic partner's annuity will increase under the
same terms as a surviving spouse's annuity.
TITLE VII--ETHICS IN GOVERNMENT, CONFLICTS OF INTEREST, EMPLOYMENT OF
RELATIVES, GIFTS AND EMPLOYEE CONDUCT
Sec. 801. Ethics in Government Act of 1978
The Ethics in Government Act of 1978 (EGA) (5 U.S.C. app.)
establishes financial disclosure requirements for high-level
officials and employees in all three branches of the federal
government and imposes limits on the amount of outside income
that certain officials and employees are permitted to earn.
Section 801 of the bill makes several amendments to the EGA,
described below.
Subsection (a)--Contents of Reports. Section 102 of the
EGA, which prescribes the contents of financial disclosure
reports, mandates the reporting of certain financial
information about the individual's spouse. Section 801(a) of
the bill amends section 102 of the EGA to require covered
government officials and employees who are in domestic
partnerships to disclose the same information about their
domestic partners. Section 102 of the EGA does not require the
disclosure of transactions between the reporting individual and
the individual's spouse, and the amendments to section 102
likewise do not require disclosure of transactions between the
reporting individual and the reporting individual's domestic
partner.
Moreover, section 102 of the EGA generally requires the
disclosure of gifts, but excludes disclosure of gifts from
certain relatives, as that term is defined in section 109(16)
of the EGA. The amendments to section 102 would likewise exempt
from disclosure any gifts from domestic partners or from
parents, children, and siblings of domestic partners.
Subsection (b)--Definitions Relating to Financial
Disclosure. Subsection 801(b) of the bill makes several
amendments to the definition of ``dependent child'' in section
109 of the EGA. Section 109 of the EGA currently defines the
term to include a stepson or stepdaughter. The amendments add
to the definition a son or daughter of the reporting
individual's domestic partner. Also, the existing definition
excludes any child who is married, unless the child is actually
a dependent, and the amendments made by the bill likewise
exclude any child who is in a domestic partnership and is not
actually dependent. Finally, the existing definition provides
that a child's dependency is determined by reference to section
152 of the Internal Revenue Code (IRC). Under the amendments,
whether a domestic partner's child is a dependent is determined
under section 152 the IRC, but disregarding the requirement
there that dependents must be relatives.
Subsection (c)--Outside Earned Income Limitation. Section
501(c) of the EGA generally forbids certain federal officers
and employees from receiving honoraria. However, it is
permissible for an honorarium up to $2000 to be paid to a
charitable organization, provided no financial benefit from the
organization is derived by the officer or employee or by any of
several kinds of relatives, including a spouse or a dependent
relative of the officer or employee. Section 801(c) of the bill
amends section 501(c) of the EGA to likewise forbid the payment
of an honorarium to a charitable organization if a financial
benefit from the organization is derived by the domestic
partner of the officer or employee or by an individual who is
the domestic partner's child, sibling, or parent and is a
dependent of the officer or employee.
Subsection (d)--Definitions Relating to Outside Earned
Income and Employment. For purposes of the ban on receiving an
honorarium mentioned in the preceding discussion, section 505
of the EGA contains a definition of the term ``honorarium'',
but excludes from that definition travel expenses incurred by
the officer or employee or by one relative, including the
spouse or a relative of the spouse. Section 801(d) of the bill
amends section 505 to allow the domestic partner of the officer
or employee or a parent, child, or sibling of the domestic
partner to count as the one relative whose travel expenses are
excluded from the honorarium ban.
Sec. 802. Conflicts in interest
Section 802 of the bill makes amendments to various
provisions in the criminal conflict-of-interest statutes to
treat employees with domestic partners the same as married
employees.
Subsection (a)--Compensation to Members of Congress,
Officers, and Others in Matters Affecting the Government. Under
18 U.S.C. Sec. 203, it is a crime for a federal officer or
employee to provide representational services for compensation
in a case where the United States is a party or has a
substantial interest. However, there is generally an exception
under Sec. 203(d) for representing one's immediate family
member including a spouse. Section 802(a) of the bill amends
Sec. 203(d) to likewise provide an exception for representing
one's domestic partner.
Subsection (b)--Activities of Officers and Employees in
Claims Against and Other Matters Affecting the Government.
Under 18 U.S.C. Sec. 205, it is generally a crime for a federal
officer or employee to act as an agent or attorney (with or
without compensation) to prosecute a claim against the United
States or to receive payment for assisting on the claim.
However, there is generally an exception under Sec. 205(e) for
representing one's immediate family members, including a
spouse. Section 802(b) of the bill amends Sec. 203(d) to
likewise provide an exception for representing one's domestic
partner.
Subsection (c)--Acts Affecting a Personal Financial
Interest. 18 U.S.C. Sec. 208 generally makes it a crime to
participate personally as an executive-branch officer or
employee in a determination affecting the financial interest of
the officer or employee or his or her spouse, minor child, or
an organization with which he or she has a close connection.
Section 802(c) amends Sec. 208 to likewise make it a crime to
participate in such a determination affecting the financial
interest of one's domestic partner.
Sec. 803. Employment of relatives, restrictions
5 U.S.C. Sec. 3110 establishes restrictions on the hiring
of relatives applicable in all three branches of government and
the government of the District of Columbia, forbidding both a
public official to hire a relative and a relative to be hired
by a public official. Section 803 of the bill amends Sec. 3110
to impose those prohibitions on a public official and the
official's domestic partner or the parents, siblings or
children of the partner.
Sec. 804. Receipt and disposition of foreign gifts and decoration
5 U.S.C. Sec. 7342 generally forbids the receipt by federal
employees of gifts and decorations from foreign governments
except with the consent of Congress, and the section defines
``employee'' to include an employee's spouse. Section 804 of
the bill would amend Sec. 7342 to likewise include within the
definition of ``employee'' the employee's domestic partner.
Sec. 805. Regulations of conduct, gifts
5 U.S.C. Sec. Sec. 7301, 7351, and 7353 authorize
regulations to govern executive branch employees' conduct
generally, and to ban giving gifts to supervisors, receiving
gifts from subordinates, and receiving gifts from people having
business before an employee's agency. Under authority of these
three Code sections, the Office of Government Ethics (OGE)
promulgates the Standards of Ethical Conduct for Employees of
the Executive Branch (5 C.F.R. Part 2635). The gift rules under
the Standards include several restrictions involving gifts to
and from employees' spouses.
For example, just as an employee may not receive a gift
from someone doing business before the employee's agency or
from a subordinate, the employee may not acquiesce in the
receipt of a gift from such a source by the employee's spouse.
See 5 C.F.R. Sec. Sec. 2635.203(f)(1), 2635.303(b)(1). The
standards also specify that an appearance of loss of
impartiality may arise when an employee's work may affect an
entity with which the employee's spouse is connected. See 5
C.F.R. Sec. 2635.502(b)(1)(iii). On the other hand, as an
exception to the gift ban, an employee may accept
transportation and other benefits resulting solely because of
the employee's spouse's business or employment activities. See
5 C.F.R. Sec. 2635.204(e)(1).
Section 805 of the bill would direct that the Standards be
revised so that these and other provisions that apply to
married employees and their spouses would apply likewise to
employees in domestic partnerships and their domestic partners.
V. Estimated Cost of Legislation
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
S. 1102--Domestic Partnership Benefits and Obligations Act of 2009
Summary: S. 1102 would make same-sex domestic partners of
certain federal employees eligible to receive the same
employment benefits as married spouses of federal employees.
Those benefits include health insurance, survivor annuities,
compensation for work-related injuries and travel and
relocation benefits that affect the federal budget, as well as
other benefits that do not have an impact on the budget, such
as life insurance and vision and dental benefits.
CBO estimates that enacting S. 1102 would increase direct
spending by $101 million over the 2010-2015 period and $310
million through 2020.\1\ We estimate that enacting the bill
would not have any direct impact on federal revenues. Over the
same period, CBO estimates that discretionary spending would
also increase, by $394 million, assuming appropriation of the
necessary funds. Providing additional health insurance benefits
through the Federal Employees Health Benefits (FEHB) program
would account for the largest increase in both mandatory and
discretionary spending--$294 million and $355 million,
respectively.
---------------------------------------------------------------------------
\1\Different time periods apply for the Senate's pay-as-you-go
rules. CBO estimates that enacting S. 1102 would increase on-budget
direct spending by $20 million over the 2010-2014 period and by $91
million over the 2010-2019 period.
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Some of the costs of S. 1102 would derive from providing
health benefits to the domestic partners of active workers of
the U.S. Postal Service (USPS); cash flows of the USPS are
classified as ``off-budget.'' CBO's estimate of direct spending
includes such off-budget costs totaling $197 million between
2011 and 2020.
Pay-as-you-go procedures apply because enacting the
legislation would affect direct spending. (Under the Statutory
Pay-As-You-Go Act of 2010, only the on-budget effects are
subject to those procedures.)
S. 1102 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 1102 is shown in the following table.
The costs of this legislation fall within budget functions 550
(health) and 600 (income security).
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year in millions of dollars--
--------------------------------------------------------------------------------------------------
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2010-2015 2010-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING
Federal Employees Health Benefits (FEHB) Program:
On-Budget (non-postal)............................. 0 1 3 4 6 8 10 12 15 18 21 21 97
Off-Budget (postal)................................ 0 9 13 15 16 18 20 22 25 28 30 71 197
Federal Employment Compensation Act (FECA) Benefits.. 0 2 3 3 3 4 4 4 4 4 4 15 35
Survivor Annuities................................... 0 0 -1 -1 -2 -2 -2 -2 -3 -3 -3 -6 -19
--------------------------------------------------------------------------------------------------
Total Changes...................................... 0 11 18 21 24 28 32 36 41 46 52 101 310
On-Budget........................................ 0 2 5 6 7 10 12 14 16 19 22 30 113
Off-Budget....................................... 0 9 13 15 16 18 20 22 25 28 30 71 197
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
FEHB Program Costs for Active Employees:
Estimated Authorization Level...................... 0 19 28 30 32 34 37 39 42 45 48 144 355
Estimated Outlays.................................. 0 19 28 30 32 34 37 39 42 45 48 144 355
FECA Agency Costs:
Estimated Authorization Level...................... 0 2 3 3 3 4 4 4 4 4 4 15 35
Estimated Outlays.................................. 0 1 2 3 3 4 4 4 4 4 4 13 33
Travel and Relocation Benefits:
Estimated Authorization Level...................... 0 1 1 1 1 1 1 1 1 1 1 3 6
Estimated Outlays.................................. 0 1 1 1 1 1 1 1 1 1 1 3 6
Total Changes:
Estimated Authorization Level.................... 0 22 32 34 37 39 41 44 47 50 53 163 397
Estimated Outlays................................ 0 21 31 34 36 39 41 44 47 50 53 160 394
--------------------------------------------------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that S.
1102 will be enacted late in calendar year 2010 and that the
necessary amounts will be appropriated for each year. CBO
assumes that about 0.33 percent of federal employees would
choose to register a same-sex domestic partnership if given the
opportunity. That figure is based on information previously
gathered from state and local governments as well as more
recent research on the experience of organizations that have
adopted similar policies. CBO estimates that approximately 80
percent of individuals eligible under the proposal would move
from single to family health coverage and that 85 percent would
elect a survivor benefit for a domestic partner. S. 1102
applies to eligible current federal employees, other than
members of the armed services.
Direct spending
Federal Employees Health Benefits Program. S. 1102 would
extend eligibility for health benefits to the same-sex domestic
partners of future federal retirees. Unlike premiums for
current workers, the government's share of health care premiums
for retirees is classified as direct spending. For each year
over the 2011-2020 period, CBO projects that approximately 200
additional family coverage policies would be added to the FEHB
program by future non-Postal Service retirees choosing to cover
same-sex domestic partners. As a result, direct spending would
increase by $97 million from 2011 to 2020.
Postal Service employees also would be eligible for same-
sex domestic partner coverage under S. 1102. CBO estimates that
providing health benefits to the domestic partners of active
postal workers would result in about 2,000 Postal Service
employees moving from individual to family coverage plans.
Additionally, CBO anticipates that approximately 100 future
retirees from the Postal Service would move to family coverage
for their same-sex domestic partners.
The cash flows of the Postal Service are classified as off-
budget, although the total federal budget records the agency's
net spending (gross outlays less offsetting collections). CBO
estimates that extending FEHB benefits to the same-sex domestic
partners of Postal Service workers would increase off-budget
costs by $197 million through 2020.
Federal Employment Compensation Act (FECA) Benefits. FECA
provides compensation to federal civilian employees for
disability due to personal injury sustained while in the
performance of duty. Married workers currently receive slightly
higher FECA benefits for wage replacement than do single
workers. Additionally, if an employee dies of an employment-
related injury or disease, his or her spouse receives a death
benefit. CBO projects that S. 1102, if enacted, would extend
additional FECA benefits to roughly 1,000 federal employees
each year. Over the 2011-2020 period, those additional benefits
would total $35 million.
Survivor Annuities. Under current law, federal employees
who are eligible to receive retirement benefits may elect to
provide their spouses with a survivor annuity by reducing the
value of their own retirement benefit. The required annuity
reductions and survivor benefit levels vary between the Federal
Employees' Retirement System (FERS) and the Civil Service
Retirement System; a federal employee who elects survivor
benefits reduces his retirement annuity between 5 percent and
10 percent in order to provide a survivor benefit ranging from
25 percent to 55 percent of the employee's annuity.
Under S. 1102, eligible federal employees with a registered
same-sex domestic partner would become eligible for a survivor
benefit for their partner at retirement, following the same
rules and regulations as for married spouses. CBO estimates
that 85 percent of federal employees who register a domestic
partner would elect survivor benefits if given the opportunity.
On that basis, CBO projects that an average of 1,500 new
federal retirees per year (through 2020) would add survivor
benefits for their domestic partners. Accordingly, those
individuals would collect smaller retirement annuities, thereby
lowering direct spending. A portion of those savings would be
offset by payments of survivor benefits to surviving partners
as some retirees die over the next 10 years. However, in the
near term, the estimated annuity reductions outweigh the
additional survivor benefits. On net, CBO estimates that direct
spending would decrease by $19 million over the 2011-2020
period.
Spending subject to appropriation
In total, CBO estimates that implementing S. 1102 would
increase discretionary spending by $394 million over the 2011-
2020 period, assuming the appropriation of the necessary
amounts.
FEHB Program Costs for Active Federal Employees. S. 1102
would allow federal employees to add same-sex domestic partners
to their health insurance policies. Federal agencies pay about
70 percent of health-care premiums for active employees; thus,
as premiums rise, so do agency contributions. In 2011, family
coverage policies for active workers are projected to cost the
federal government approximately $6,000 more than individual
coverage policies. CBO estimates that providing additional
family coverage policies to approximately 4,000 non-Postal
Service employees who would elect coverage for same-sex
domestic partners would increase agency spending subject to
appropriation by $355 million over the 2011-2020 period,
assuming the appropriation of the necessary funds.
FECA Agency Costs. As discussed under the direct spending
section, this bill would result in increased spending for
federal workers' compensation. The additional benefits that
would be paid to workers are considered mandatory spending.
However, employing agencies reimburse the Department of Labor
for the provision of those benefits using funds from their
discretionary appropriations. CBO estimates that enacting S.
1102 thus would increase the need for appropriations to
agencies' salaries and expense accounts, with increased outlays
totaling $33 million through 2020.
Travel and Relocation Benefits. S. 1102 would provide the
same benefits to same-sex domestic partners as to married
spouses for travel and relocation expenses. In general, such
benefits include the transport of household goods,
reimbursement for taxes incurred during relocation, and
expenses incurred during a real estate transaction (such as
closing costs or purchase assistance). CBO estimates that
including domestic partners in travel and relocation benefits
would total about $6 million over the 2011-2020 period.
Pay-as-you-go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget reporting and enforcement
procedures for legislation affecting direct spending or
revenues. The net changes in on-budget outlays that are subject
to those pay-as-you-go procedures are shown in the following
table.
CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR S. 1102, AS ORDERED REPORTED BY THE SENATE COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS ON DECEMBER
16, 2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------------------------------------------------------
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2010-2015 2010-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
NET INCREASE OR DECREASE (-) IN THE ON-BUDGET DEFICIT
Statutory Pay-As-You-Go Impact....................... 0 2 5 6 7 10 12 14 16 19 22 30 113
--------------------------------------------------------------------------------------------------------------------------------------------------------
Intergovernmental and private-sector impact: S. 1102
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no cost on state, local, or
tribal governments.
Previous CBO estimate: On December 17, 2009, CBO
transmitted a cost estimate for H.R. 2517, the Domestic
Partnership Benefits and Obligations Act of 2009, as ordered
reported by the House Committee on Oversight and Government
Reform on November 18, 2009. That bill would provide the same
benefits to domestic partners of eligible federal employees as
S. 1102, but would extend those benefits to the domestic
partners of eligible current federal retirees in addition to
current employees. As a result, H.R. 2517 would have higher
direct spending costs than S. 1102: about $600 million over 10
years, as compared to $310 million for 10 years under the
Senate bill.
Estimate prepared by: Federal Spending: Retirement--Amber
G. Marcellino, FEHB--Kirstin Nelson, FECA--Christina Hawley
Anthony; Impact on State, local, and tribal governments:
Elizabeth Cove Delisle; Impact on the private sector: Paige
Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
VI. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. The
Congressional Budget Office (CBO) states that there are no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and no costs on State, local, or
tribal governments. The legislation contains no other
regulatory impact.
VII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the following changes in existing
law made by the bill, as reported, are shown as follows:
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
THE CODE OF LAWS OF THE UNITED STATES OF AMERICA
* * * * * * *
TITLE 2--THE CONGRESS
* * * * * * *
CHAPTER 24--CONGRESSIONAL ACCOUNTABILITY
* * * * * * *
Subchapter II--Extension of Rights and Protections
* * * * * * *
PART A--EMPLOYMENT DISCRIMINATION, FAMILY AND MEDICAL LEAVE, FAIR LABOR
STANDARDS, EMPLOYEE POLYGRAPH PROTECTION, WORKER ADJUSTMENT AND
RETRAINING, EMPLOYMENT AND REEMPLOYMENT OF VETERANS, AND INTIMIDATION
* * * * * * *
Sec. 1312. Rights and protections under Family and Medical Leave Act of
1993*
---------------------------------------------------------------------------
\*\As amended by bill section 702(b).
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(f) Coverage of Employees With Domestic Partners.--
(1) Definition of domestic partner.--In this
subsection, the term ``domestic partner'' has the
meaning given under section 2501 of title 5, United
States Code.
(2) Application to covered employees.--In the case of
a covered employee who has a domestic partner--
(A) for purposes of the application described
in subsection (a)(1)--
(i) the term ``domestic partner''
shall be deemed inserted after
``spouse'' each place it appears in
sections 102 through 105 of the Family
and Medical Leave Act of 1993; and
(ii) a child of the domestic partner
of a covered employee, which child
meets the conditions of subparagraphs
(A) and (B) of section 101(12) of that
Act, shall be deemed to be included in
the term ``son or daughter'' as defined
in that section 101(12); and
(B) if the covered employee and the domestic
partner of the covered employee are employed by
the same employing office, the limit on the
aggregate number of workweeks of leave to which
both may be entitled, as stated in section
102(f) of the Family and Medical Leave Act of
1993, shall apply.
(3) Application to employees of the government
accountability office.--In the case of an employee of
the Government Accountability Office who has a domestic
partner--
(A) the term ``domestic partner'' shall be
deemed inserted after ``spouse'' each place it
appears in sections 102 through 105 of the
Family and Medical Leave Act of 1993;
(B) a child of the domestic partner of the
employee, which child meets the conditions of
subparagraphs (A) and (B) of section 101(12) of
that Act, shall be deemed to be included in the
term ``son or daughter'' as defined in that
section 101(12); and
(C) in any case in which the employee and the
domestic partner of the employee are both
employed by the Government Accountability
Office or are both employed by the Library of
Congress, the limit on the aggregate number of
workweeks of leave to which both may be
entitled, as stated in section 102(f) of the
Family and Medical Leave Act of 1993, shall
apply.
* * * * * * *
CHAPTER 26--DISCLOSURE OF LOBBYING ACTIVITIES
* * * * * * *
Sec. 1602. Definitions*
---------------------------------------------------------------------------
\*\As amended by bill section 801(b)(2)(B)(i).
---------------------------------------------------------------------------
As used in this chapter:
(1) * * *
* * * * * * *
(4) Covered legislative branch official.--The term
``covered legislative branch official'' means--
(A) * * *
* * * * * * *
(D) any other legislative branch employee
serving in a position described under [section
109(13)] section 109(14) of the Ethics in
Government Act of 1978 (5 U.S.C. App.)
* * * * * * *
TITLE 3--THE PRESIDENT
* * * * * * *
CHAPTER 5--EXTENSION OF CERTAIN RIGHTS AND PROTECTIONS TO PRESIDENTIAL
OFFICES
* * * * * * *
Subchapter II--Extension of Rights and Protections
PART A--EMPLOYMENT DISCRIMINATION, FAMILY AND MEDICAL LEAVE, FAIR LABOR
STANDARDS, EMPLOYEE POLYGRAPH PROTECTION, WORKER ADJUSTMENT AND
RETRAINING, EMPLOYMENT AND REEMPLOYMENT OF VETERANS, AND INTIMIDATION
* * * * * * *
Sec. 412. Rights and protections under the Family and Medical Leave Act
of 1993*
---------------------------------------------------------------------------
\*\As amended by bill section 702(c).
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(e) Coverage of Employees With Domestic Partners.--
(1) Definition of domestic partner.--In this
subsection, the term ``domestic partner'' has the
meaning given under section 2501 of title 5.
(2) Application to covered employees.--In the case of
a covered employee who has a domestic partner--
(A) for purposes of the application described
in subsection (a)(1)--
(i) the term ``domestic partner''
shall be deemed inserted after
``spouse'' each place it appears in
sections 102 through 105 of the Family
and Medical Leave Act of 1993; and
(ii) a child of the domestic partner
of a covered employee, which child
meets the conditions of subparagraphs
(A) and (B) of section 101(12) of that
Act, shall be deemed to be included in
the term `son or daughter' as defined
in that section 101(12); and
(B) if the covered employee and the domestic
partner of the covered employee are employed by
the same employing office, the limit on the
aggregate number of workweeks of leave to which
both may be entitled, as stated in section
102(f) of the Family and Medical Leave Act of
1993, shall apply.
* * * * * * *
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
PART III--EMPLOYEES
Subpart A--General Provisions
Chap. Sec.
21. Definitions........................................... 2101
23. Merit System Principles............................... 2301
25. Federal Employees in Domestic Partnerships............ 2501
* * * * * * *
CHAPTER 25--FEDERAL EMPLOYEES IN DOMESTIC PARTNERSHIPS\\
---------------------------------------------------------------------------
\\As added by bill section 101(a).
---------------------------------------------------------------------------
``Sec.
``2501. Definitions.
``2502. Establishment and termination of domestic partnerships
Sec. 2501. Definitions\=\
---------------------------------------------------------------------------
\=\As added by bill section 101(a).
---------------------------------------------------------------------------
In this chapter--
(1) the term ``annuitant'' means--
(A) an annuitant as defined under section
8331 or 8401; and
(B) as determined under regulations
prescribed by the President or a designee
thereof, any other individual who is entitled
to benefits (based on the service of such
individual) under a retirement system for
employees of the Government;
(2) the term ``Director'' means the Director of the
Office of Personnel Management;
(3) the term ``domestic partner'' means either of the
individuals in a domestic partnership;
(4) the term ``domestic partnership'' means a
relationship between 2 individuals of the same sex, at
least 1 of whom is an employee, former employee, or
annuitant, that has been established under section
2502(a) and not dissolved under section 2502(b); and
(5) the term ``employee'' means--
(A) an employee as defined under section
2105, including an employee referred to in
subsection (c) or (e) of that section;
(B) a Member of Congress;
(C) the President; or
(D) any other individual who is employed by
the Government and is included within this
definition under regulations prescribed by the
President or a designee of the President.
Sec. 2502. Establishment and termination of domestic
partnerships*
---------------------------------------------------------------------------
*As added by bill section 101(a).
---------------------------------------------------------------------------
(a) Establishment of Domestic Partnership.--
(1) An employee, former employee, or annuitant and
another individual (who may also be an employee, former
employee, or annuitant) may establish a domestic
partnership as provided in this section for the
purposes of the provisions of law to which this chapter
applies.
(2) To establish a domestic partnership, the 2
individuals referred to in paragraph (1) shall jointly
execute, and the employee, former employee, or
annuitant shall file, an application accompanied by an
affidavit, the application and affidavit being in such
form and filed in such manner as the Director shall by
regulation prescribe.
(3) By the affidavit referred to in paragraph (2),
each of the individuals shall attest to the following:
(A)(i) The individuals are of the same sex;
and
(ii) the individual who files the application
and affidavit is an employee, former employee,
or annuitant.
(B)(i) The individuals are in a committed
domestic-partnership relationship with each
other satisfying the conditions in clauses
(ii), (iii), and (iv) and intend to remain so
indefinitely.
(ii) The individuals have a common residence
and intend to continue to do so (or would have
a common residence, but are prevented from
doing so because of an assignment abroad or
other employment-related, financial, or other
reasons identified in the affidavit).
(iii) The individuals share responsibility
for a significant measure of each other's
welfare and financial obligations.
(iv) Neither individual is married to or in a
domestic partnership with anyone except each
other.
(C) Each individual is at least 18 years of
age and mentally competent to consent to a
contract.
(D) The individuals are not related to each
other by blood in a way that would prohibit
legal marriage between individuals otherwise
eligible to marry in the jurisdiction (or, if
applicable, in any jurisdiction) in which the
individuals have a common residence.
(E) Each of the individuals understands
that--
(i) as a domestic partner, each
individual not only gains certain
benefits, but also assumes certain
obligations, as set forth in the
provision of law to which this chapter
applies, the violation of which may
lead to disciplinary action against an
employee and to criminal and other
penalties;
(ii) either or both of the domestic
partners are required to file
notification under subsection (b)(2)
dissolving the domestic partnership
within 30 days after any condition
under clause (ii), (iii), or (iv) of
subparagraph (B) ceases to be
satisfied, and, if 1 domestic partner
dies, the other is required to file a
notification under subsection (b)(3)
within 30 days after the death; and
(iii) willful falsification of
information in the affidavit, or
willful failure to file notification as
required under subsection (b)(2) or
(3), may lead to recovery of amounts
obtained as a result of such
falsification or failure, disciplinary
action against an employee, and
criminal or other penalties.
(b) Termination of Domestic Partnership.--
(1) A domestic partnership is terminated upon--
(A) the death of either domestic partner;
(B) the filing of a notification under
paragraph (2) by either or both domestic
partners; or
(C) the satisfaction of such other conditions
as the Director may by regulation prescribe.
(2)(A) If any condition referred to under clause
(ii), (iii), or (iv) of subsection (a)(3)(B) ceases to
be satisfied, either or both of the domestic partners
shall, within 30 days after the condition ceases to be
satisfied, execute and file a notification, in such
form and in such manner as prescribed by the Director
in regulation, stating that the condition is no longer
satisfied and that the domestic partnership is
terminated.
(B) Each domestic partner has a duty that the
notification under subparagraph (A) be timely filed,
but the duty of 1 domestic partner shall be satisfied
if the other domestic partner timely executes and files
the required notification.
(C) The Director shall promulgate regulations
establishing the criteria for determining when any
condition referred to under clause (ii), (iii), or (iv)
of subsection (a)(2)(B) ceases to be satisfied.
(3) When one domestic partner dies, the other
domestic partner shall, within 30 days after the death,
execute and file a notification of the death, in such
form and in such manner as prescribed by the Director
in regulation.
(c) Effectiveness of Application.--
(1) An application shall not be effective for
purposes of this section unless the filing individual
is an employee, former employee, or annuitant as of the
time of the filing.
(2) No individual shall, for purposes of the
provisions of law to which this chapter applies, be
treated as being in a domestic partnership unless there
is in effect, in accordance with regulations prescribed
by the Director, an application filed in accordance
with this section.
(3) An application so filed shall remain in effect
until the earlier of--
(A) the death of either individual; or
(B) the date as of which the domestic
partnership is otherwise terminated, as
determined under such regulations.
(d) Additional Notifications to Employing Agencies.--A
domestic partner employed by an entity of the United States
shall provide such notifications to the employing entity of the
formation, existence, or termination of the domestic
partnership, in addition to the filings required under
subsections (a) and (b), as may be required, and in such form
and in such manner as prescribed, by the Director in
regulation.
(e) Members of the Armed Forces Not Eligible.--
Notwithstanding any provision of the Uniformed Services
Employment and Reemployment Rights Act of 1994 (38 U.S.C. 4301
et seq.), a member of the Armed Forces or of the Reserve
Officers' Training Corps may not be either of the individuals
who establish a domestic partnership under this section.
(f) Applicability.--This section applies for purposes of
the provisions of this title (excluding chapter 81).
(g) Regulations.--The Director shall issue regulations to
carry out this section.
* * * * * * *
Subpart B--Employment and Retention
CHAPTER 31--AUTHORITY FOR EMPLOYMENT
Subchapter I--Employment Authorities
* * * * * * *
Sec. 3110. Employment of relatives; restrictions*
---------------------------------------------------------------------------
\*\As amended by bill section 803.
---------------------------------------------------------------------------
(a) For the purpose of this section--
(1) * * *
(2) ``public official'' means an officer (including
the President and a Member of Congress), a member of
the uniformed service, an employee and any other
individual, in whom is vested the authority by law,
rule, or regulation, or to whom the authority has been
delegated, to appoint, employ, promote, or advance
individuals, or to recommend individuals for
appointment, employment, promotion, or advancement in
connection with employment in an agency; [and]
(3) ``relative'' means, with respect to a public
official, an individual who is related to the public
official as father, mother, son, daughter, brother,
sister, uncle, aunt, first cousin, nephew, niece,
husband, wife, father-in-law, mother-in-law, son-in-
law, daughter-in-law, brother-in-law, sister-in-law,
stepfather, stepmother, stepson, stepdaughter,
stepbrother, stepsister, half brother, or half
sister[.]; and
(4) ``domestic partner'' has the meaning given under
section 2501.
(b) A public official may not appoint, employ, promote,
advance, or advocate for appointment, employment, promotion, or
advancement, in or to a civilian position in the agency in
which he is serving or over which he exercises jurisdiction or
control any individual who is a relative of the public
official. An individual may not be appointed, employed,
promoted, or advanced in or to a civilian position in an agency
if such appointment, employment, promotion, or advancement has
been advocated by a public official, serving in or exercising
jurisdiction or control over the agency, who is a relative of
the individual. The restrictions in this subsection shall apply
also to a public official with respect to any individual, and
to any individual with respect to a public official, if the
individual is the public official's domestic partner; is a
parent, child, or sibling of the public official's domestic
partner; or is the domestic partner of a child, parent, or
sibling of the public official.
* * * * * * *
Subpart D--Pay and Allowances
* * * * * * *
CHAPTER 55--PAY ADMINISTRATION
* * * * * * *
Subchapter VII--Payments to Missing Employees
* * * * * * *
Sec. 5569. Benefits for captives*
---------------------------------------------------------------------------
\*\As amended by bill section 704.
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(j) The President may prescribe regulations necessary to
administer this section. Such regulations shall include
provisions to ensure that, in the administration of this
section, a domestic partner (as that term is defined in section
2501) shall be afforded the same status as a spouse.
* * * * * * *
Sec. 5570. Compensation for disability or death*
---------------------------------------------------------------------------
\*\As amended by bill section 705.
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(h) Regulations to carry out this section shall include
provisions to ensure that, in the administration of this
section, a domestic partner (as that term is defined in section
2501) shall be afforded the same status as a spouse.
* * * * * * *
Subchapter VIII--Settlement of Accounts
Sec. 5581. Definitions
---------------------------------------------------------------------------
\\As amended by bill section 703(a), (c).
---------------------------------------------------------------------------
For the purpose of this subchapter--
(1) ``employee'' means--
(A) * * *
(B) an individual employed by the government
of the District of Columbia; but does not
include the employee of--
(i) * * *
* * * * * * *
(iv) the Senate within the purview of
section 36a of title 2; [and]
(2) ``money due'' means the pay and allowances due on
account of the services of a deceased employee for the
Government of the United States or the government of
the District of Columbia. It includes, but is not
limited to--
(A) * * *
* * * * * * *
It does not include benefits, refunds, or interest payable
under subchapter III of chapter 83 of this title applicable to
the service of the deceased employee, or amounts the
disposition of which is otherwise expressly prescribed [by
Federal statute.] by Federal statute; and
(3) ``domestic partner'' has the meaning given it by
section 2501.
* * * * * * *
Sec. 5582. Designation of beneficiary; order of precedence*
---------------------------------------------------------------------------
\*\As amended by bill section 703(b).
---------------------------------------------------------------------------
(a) * * *
(b) In order to facilitate the settlement of the accounts
of deceased employees, money due an employee at the time of his
death shall be paid to the person or persons surviving at the
date of death, in the following order of precedence, and the
payment bars recovery by another person of amounts so paid:
First, to the beneficiary or beneficiaries designated by
the employee in a writing received in the employing agency
before his death.
Second, if there is no designated beneficiary, to the widow
or widower (or surviving domestic partner) of the employee.
Third, if none of the above, to the child or children of
the employee and descendants of deceased children by
representation.
Fourth, if none of the above, to the parents of the
employee or the survivor of them.
Fifth, if none of the above, to the duly appointed legal
representative of the estate of the employee.
Sixth, if none of the above, to the person or persons
entitled under the laws of the domicile of the employee at the
time of his death.
* * * * * * *
CHAPTER 57--TRAVEL, TRANSPORTATION, AND SUBSISTENCE
* * * * * * *
Subchapter I--Travel and Subsistence Expenses; Mileage Allowances
* * * * * * *
Sec. 5706c. Reimbursement for taxes incurred on money received for
travel expenses
---------------------------------------------------------------------------
\\As amended by bill section 501.
---------------------------------------------------------------------------
(a) Under regulations prescribed pursuant to section 5707
of this title, the head of an agency or department, or his or
her designee, may use appropriations or other funds available
to the agency for administrative expenses, for the
reimbursement of Federal, State, and local income taxes
incurred by an employee of the agency or by an employee and
such employee's spouse [(if filing jointly),] (if filing
jointly) (or by an employee and such employee's domestic
partner (as that term is defined under section 2501), if joint
filing is allowed and they file jointly), for any travel or
transportation reimbursement made to an employee for which
reimbursement or an allowance is provided.
(b) Reimbursements under this section shall include an
amount equal to all income taxes for which the [employee and
spouse, as the case may be,] employee and spouse (or domestic
partner), as the case may be, would be liable due to the
reimbursement for the taxes referred to in subsection (a). In
addition, reimbursements under this section shall include
penalties and interest, for the tax years 1993 and 1994 only,
as a result of agencies failing to withhold the appropriate
amounts for tax liabilities of employees affected by the change
in the deductibility of travel expenses made by Public Law 102-
486.
* * * * * * *
Subchapter II--Travel and Transportation Expenses; New Appointees,
Student Trainees, and Transferred Employees
Sec. 5721. Definitions*
---------------------------------------------------------------------------
\*\As amended by bill section 502.
---------------------------------------------------------------------------
For the purpose of this subchapter--
(1) * * *
* * * * * * *
(6) ``United States'' means the several States, the
District of Columbia, the Commonwealth of Puerto Rico,
the Commonwealth of the Northern Mariana Islands, the
territories and possessions of the United States, and
the areas and installations in the Republic of Panama
that are made available to the United States pursuant
to the Panama Canal Treaty of 1977 and related
agreements (as described in section 3(a) of the Panama
Canal Act of 1979); [and]
(7) ``Foreign Service of the United States'' means
the Foreign Service as constituted under the Foreign
Service Act of 1980[.]; and
(8) ``domestic partner'' has the meaning given under
section 2501.
* * * * * * *
Sec. 5724a. Relocation expenses of employees transferred or
reemployed
---------------------------------------------------------------------------
\\As amended by bill section 503.
---------------------------------------------------------------------------
(a) * * *
(b)(1) Under regulations prescribed under section 5738, an
agency may pay to or on behalf of an employee who transfers in
the interest of the Government between official stations
located within the United States--
(A) the expenses of transportation of the employee
and the [employee's spouse] employee's spouse (or
domestic partner) for travel to seek permanent
residence quarters at a new official station; and
* * * * * * *
Sec. 5724b. Taxes on reimbursements for travel, transportation, and
relocation expenses of employees
transferred*
---------------------------------------------------------------------------
\*\As amended by bill section 504.
---------------------------------------------------------------------------
(a) Under regulations prescribed under section 5738 of this
title and to the extent considered necessary and appropriate,
as provided therein, appropriations or other funds available to
an agency for administrative expenses are available for the
reimbursement of substantially all of the Federal, State, and
local income taxes incurred by an employee, or by an employee
and such employee's spouse [(if filing jointly),] (if filing
jointly) (or by an employee and such employee's domestic
partner (if joint filing is allowed and they file jointly)),
for any moving or storage expenses furnished in kind, or for
which reimbursement or an allowance is provided (but only to
the extent of the expenses paid or incurred). Reimbursements
under this subsection shall also include an amount equal to all
income taxes for which the [employee and spouse, as the case
may be,] employee and spouse (or domestic partner), as the case
may be, would be liable due to the reimbursement for the taxes
referred to in the first sentence of this subsection.
* * * * * * *
Sec. 5737. Relocation expenses of an employee who is performing an
extended assignment
---------------------------------------------------------------------------
\\As amended by bill section 505.
---------------------------------------------------------------------------
(a) Under regulations prescribed under section 5738 of this
title, an agency may pay to or on behalf of an employee
assigned from the employee's official station to a duty station
for a period of not less than six months and not greater than
30 months, the following expenses in lieu of payment of
expenses authorized under subchapter I of this chapter:
(1) * * *
* * * * * * *
(4) Travel and transportation expenses of the
employee and spouse (or domestic partner) to seek new
residence quarters at the assignment location.
* * * * * * *
Subpart E--Attendance and Leave
* * * * * * *
CHAPTER 63--LEAVE
* * * * * * *
Subchapter III--Voluntary Transfers of Leave
* * * * * * *
Sec. 6333. Receipt and use of transferred leave*
---------------------------------------------------------------------------
\*\As amended by bill section 701(a).
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(d) Regulations to carry out this section shall include
provisions to ensure that, in the administration of this
section, a domestic partner (as that term is defined in section
2501) shall be afforded the same status as a spouse.
* * * * * * *
Subchapter IV--Voluntary Leave Bank Program
* * * * * * *
Sec. 6362. General authority
---------------------------------------------------------------------------
\\As amended by bill section 701(b).
---------------------------------------------------------------------------
(a) Notwithstanding any provision of subchapter I, and
subject to the provisions of this subchapter, the Office of
Personnel Management shall establish a program under which--
(1) * * *
* * * * * * *
(b) The established program under this section shall
include provisions to ensure that, in the administration of
this section, a domestic partner (as that term is defined in
section 2501) shall be afforded the same status as a spouse.
* * * * * * *
Subchapter V--Family and Medical Leave
Sec. 6381. Definitions=
---------------------------------------------------------------------------
\=\As amended by bill section 702(a)(1).
---------------------------------------------------------------------------
For the purpose of this subchapter--
(1) * * *
* * * * * * *
(6) the term ``son or daughter'' means a biological,
adopted, or foster child, a stepchild, a legal ward, or
a child of a person standing in loco [parentis,]
parentis (or a biological, adopted, or foster child of
the domestic partner of the employee), who is--
(A) under 18 years of age; or
(B) 18 years of age or older and incapable of
self-care because of a mental or physical
disability;
* * * * * * *
Sec. 6382. Leave requirement*
---------------------------------------------------------------------------
\*\As amended by bill section 702(a)(2).
---------------------------------------------------------------------------
(a)(1) Subject to section 6383, an employee shall be
entitled to a total of 12 administrative workweeks of leave
during any 12-month period for one or more of the following:
(A) * * *
* * * * * * *
(C) In order to care for the [spouse,] spouse (or
domestic partner), or a son, daughter, or parent, of
the employee, if such [spouse,] spouse (or domestic
partner), son, daughter, or parent has a serious health
condition.
* * * * * * *
(e)(1) * * *
(2) In any case in which the necessity for leave under
subparagraph (C) or (D) of subsection (a)(1) or under
subsection (a)(3) is foreseeable based on planned medical
treatment, the employee--
(A) shall make a reasonable effort to schedule the
treatment so as not to disrupt unduly the operations of
the employing agency, subject to the approval of the
health care provider of the employee or the health care
provider of the son, daughter, [spouse,] spouse (or
domestic partner), or parent of the employee, as
appropriate; and
* * * * * * *
Sec. 6383. Certification
---------------------------------------------------------------------------
\\As amended by bill section 702(a)(3).
---------------------------------------------------------------------------
(a) An employing agency may require that a request for
leave under subparagraph (C) or (D) of section 6382(a)(1) be
supported by certification issued by the health care provider
of the employee or of the son, daughter, [spouse,] spouse (or
domestic partner), or parent of the employee, as appropriate.
The employee shall provide, in a timely manner, a copy of such
certification to the employing agency.
(b) A certification provided under subsection (a) shall be
sufficient if it states--
(1) * * *
* * * * * * *
(4)(A) for purposes of leave under section
6382(a)(1)(C), a statement that the employee is needed
to care for the son, daughter, [spouse,] spouse (or
domestic partner), or parent, and an estimate of the
amount of time that such employee is needed to care for
such son, daughter, [spouse,] spouse (or domestic
partner), or parent; and
(B) for purposes of leave under section
6382(a)(1)(D), a statement that the employee is unable
to perform the functions of the position of the
employee; and
* * * * * * *
Subpart F--Labor-Management and Employee Relations
* * * * * * *
CHAPTER 73--SUITABILITY, SECURITY, AND CONDUCT
* * * * * * *
Subchapter IV--Foreign Gifts and Decorations
* * * * * * *
Sec. 7342. Receipt and disposition of foreign gifts and
decorations*
---------------------------------------------------------------------------
\*\As amended by bill section 804.
---------------------------------------------------------------------------
(a) For the purpose of this section--
(1) ``employee'' means--
(A) * * *
* * * * * * *
(G) the spouse (or domestic partner) of an
individual described in subparagraphs (A)
through (F) (unless such individual and his or
her spouse (or domestic partner) are separated)
or a dependent (within the meaning of section
152 of the Internal Revenue Code of 1986) of
such an individual, other than a spouse (or
domestic partner) or dependent who is an
employee under subparagraphs (A) through (F);
* * * * * * *
(5) ``minimal value'' means a retail value in the
United States at the time of acceptance of $100 or
less, except that--
(A) * * *
(B) regulations of an employing agency may
define ``minimal value'' for its employees to
be less than the value established under this
paragraph; [and]
(6) ``employing agency'' means--
(A) * * *
* * * * * * *
(D) the department, agency, office, or other
entity in which an employee is employed, for
other legislative branch employees and for all
executive branch employees[.]; and
(7) ``domestic partner'' has the meaning given under
section 2501.
* * * * * * *
Subpart G--Insurance and Annuities
CHAPTER 81--COMPENSATION FOR WORK INJURIES
* * * * * * *
Subchapter I--Generally
Sec. 8101. Definitions
---------------------------------------------------------------------------
\\As amended by bill section 601.
---------------------------------------------------------------------------
For the purpose of this subchapter--
(1) * * *
* * * * * * *
(8) ``brother'' and ``sister'' mean one who at the
time of the death of the employee is under 18 years of
age or over that age and incapable of self-support, and
include stepbrothers and stepsisters, half brothers and
half sisters, and brothers and sisters by adoption, but
do not include [married brothers or married sisters;]
any brother or sister who is married (or is in a
domestic partnership);
(9) ``child'' means one who at the time of the death
of the employee is under 18 years of age or over that
age and incapable of self-support, and includes
stepchildren (or children of the employee's domestic
partner, if the employee was a Federal employee),
adopted children, and posthumous children, but does not
include [married children] any child who is married (or
in a domestic partnership);
* * * * * * *
(19) ``organ'' means a part of the body that performs
a special function, and for purposes of this subchapter
excludes the brain, heart, and back; [and]
(20) ``United States medical officers and hospitals''
includes medical officers and hospitals of the Army,
Navy, Air Force, Department of Veterans Affairs, and
United States Public Health Service, and any other
medical officer or hospital designated as a United
States medical officer or hospital by the Secretary of
Labor[.];
(21) the term ``domestic partner'' means either of
the individuals in a domestic partnership;
(22) the term ``domestic partnership'' means a
relationship between 2 individuals of the same sex that
meets the conditions of subparagraphs (A) and (B)--
(A) except as provided in subparagraph (B),
the term means a relationship established under
section 2502 and not dissolved under that
section;
(B) if neither of the 2 individuals is an
employee within the meaning of section 2501,
but if at least 1 of them is a covered Federal
employee, the term means a relationship
established under section 2502 and not
dissolved under that section, except that--
(i) notwithstanding the requirement
in section 2502(a)(2)(A)(ii), each of
the individuals shall attest that the
individual who files the application
and affidavit is a covered Federal
employee; and
(ii) the Secretary of Labor shall
exercise the authorities of the
Director under section 2502 with
respect to the domestic partnership,
and shall do so under any applicable
regulations issued by the Director
(except insofar as may be necessitated
by different circumstances);
(23) the term ``Federal employee''--
(A) means--
(i) an individual referred to in
subparagraph (A) or (B) of paragraph
(1) (subject to the exclusions
following subparagraph (E) of that
paragraph); or
(ii) any other individual who is
eligible for coverage under this
subchapter based on such individual's
employment with or other service to the
United States; and
(B) shall not include any individual who is
eligible for coverage under this subchapter
based on the individual's service performed as
the employee of any employer other than an
entity of the United States; and
(24) the term ``surviving partner'' means the
domestic partner in a domestic partnership with the
decedent at the time of his or her death if the
decedent was a Federal employee.
* * * * * * *
Sec. 8102a. Death gratuity for injuries incurred in connection with
employee's service with an Armed Force*
---------------------------------------------------------------------------
\*\As amended by bill section 602.
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(d) Eligible Survivors.--
(1) Subject to paragraph (5), a death gratuity
payable upon the death of a person covered by
subsection (a) shall be paid to or for the living
survivor highest on the following list:
(A) The employee's [surviving spouse.]
surviving spouse (or surviving partner).
* * * * * * *
(2) Paragraph (1)(B) applies, without regard to age
or marital status, to--
(A) * * *
* * * * * * *
(C) stepchildren (or children of the
employee's domestic partner, if the employee
was a covered Federal employee) who were a part
of the decedent's household at the time of
death;
* * * * * * *
Sec. 8109. Beneficiaries of awards unpaid at death; order of
precedence
---------------------------------------------------------------------------
\\As amended by bill section 603.
---------------------------------------------------------------------------
(a) If an individual--
(1) * * *
* * * * * * *
the compensation specified by the schedule that is unpaid at
his death, whether or not accrued or due at his death, shall be
paid--
(A) * * *
* * * * * * *
(D) in the following order of precedence:
(i) If there is no child, to [the
widow or widower.] the widow or widower
(or the surviving partner).
(ii) If there are both a widow or
widower (or a surviving domestic
partner) and a child or children, one-
half to the widow or widower (or the
surviving partner) and one-half to the
child or children.
(iii) If there is [no widow or
widower] no widow or widower (and no
surviving partner), to the child or
children.
* * * * * * *
Sec. 8110. Augmented compensation for dependents*
---------------------------------------------------------------------------
\*\As amended by bill section 604.
---------------------------------------------------------------------------
(a) For the purpose of this section, ``dependent'' means--
(1) * * *
* * * * * * *
(3) [an unmarried child] a child who is unmarried
(and not in a domestic partnership), while living with
the employee or receiving regular contributions from
the employee toward his support, and who is--
(A) * * *
(B) over 18 years of age and incapable of
self-support because of a physical or mental
disability; [and]
(4) a parent, while wholly dependent on and supported
by the employee[.]; and
(5) a domestic partner, if--
(A) he or she is a member of the same
household as the employee;
(B) he or she is receiving regular
contributions from the employee for his or her
support; or
(C) the employee has been ordered by a court
to contribute to his or her support.
Notwithstanding paragraph (3) of this subsection, compensation
payable for a child that would otherwise end because the child
has reached 18 years of age shall continue if he is a student
as defined by section 8101 of this title at the time he reaches
18 years of age for so long as he continues to be such a
student or until [he marries] he marries (or enters into a
domestic partnership).
* * * * * * *
Sec. 8116. Limitations on right to receive compensation*
---------------------------------------------------------------------------
\*\As amended by bill section 605.
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(c) The liability of the United States or an
instrumentality thereof under this subchapter or any extension
thereof with respect to the injury or death of an employee is
exclusive and instead of all other liability of the United
States or the instrumentality to the employee, his legal
representative, [spouse,] spouse (or domestic partner)
dependents, next of kin, and any other person otherwise
entitled to recover damages from the United States or the
instrumentality because of the injury or death in a direct
judicial proceeding, in a civil action, or in admiralty, or by
an administrative or judicial proceeding under a workmen's
compensation statute or under a Federal tort liability statute.
However, this subsection does not apply to a master or a member
of a crew of a vessel.
* * * * * * *
Sec. 8133. Compensation in case of death
---------------------------------------------------------------------------
\\As amended by bill section 606.
---------------------------------------------------------------------------
(a) If death results from an injury sustained in the
performance of duty, the United States shall pay a monthly
compensation equal to a percentage of the monthly pay of the
deceased employee in accordance with the following schedule:
(1) To [the widow or widower,] the widow or widower
(or the surviving partner), if there is no child, 50
percent.
(2) To [the widow or widower,] the widow or widower
(or the surviving partner), if there is a child, 45
percent and in addition 15 percent for each child not
to exceed a total of 75 percent for the widow or
widower (or the surviving partner) and children.
(3) To the children, if there is [no widow or
widower,] no widow or widower (and no surviving
partner), 40 percent for one child and 15 percent
additional for each additional child not to exceed a
total of 75 percent, divided among the children share
and share alike.
(4) To the parents, if there is no widow, [widower,]
widower (or surviving partner), or child, as follows--
(A) * * *
* * * * * * *
If there is a widow, [widower,] widower (or surviving
partner), or child, so much of the percentages are
payable as, when added to the total percentages payable
to the widow, [widower,] widower (or surviving
partner), and children, will not exceed a total of 75
percent.
(5) To the brothers, sisters, grandparents, and
grandchildren, if there is no widow, [widower,] widower
(or surviving partner), child, or dependent parent, as
follows--
(A) * * *
* * * * * * *
If there is a widow, [widower,] widower (or surviving
partner), child, or dependent parent, so much of the
percentages are payable as, when added to the total
percentages payable to the widow, [widower,] widower
(or surviving partner), children, and dependent
parents, will not exceed a total of 75 percent.
(b) The compensation payable under subsection (a) of this
section is paid from the time of death until--
[(1) a widow, or widower dies or remarries before
reaching age 55;]
(1) a widow or widower dies or remarries (or enters
into a domestic partnership) (or a surviving partner
dies or enters into a subsequent domestic partnership
or marries) before reaching age 55;
(2) a child, a brother, a sister, or a grandchild
dies, [marries,] marries (or enters into a domestic
partnership), or becomes 18 years of age, or if over
age 18 and incapable of self-support becomes capable of
self-support; or
(3) a parent or grandparent dies, [marries,] marries
(or enters into a domestic partnership), or ceases to
be dependent.
Notwithstanding paragraph (2) of this subsection, compensation
payable to or for a child, a brother or sister, or grandchild
that would otherwise end because the child, brother or sister,
or grandchild has reached 18 years of age shall continue if he
is a student as defined by section 8101 of this title at the
time he reaches 18 years of age for so long as he continues to
be such a student or until he [marries.] marries (or enters
into a domestic partnership). A widow or widower who has
entitlements to benefits under this title derived from more
than one husband or wife (or domestic partner) (or a surviving
partner who has entitlements to benefits under this title
derived from more than one domestic partner or spouse) shall
elect one entitlement to be utilized.
* * * * * * *
Sec. 8135. Lump-sum payment*
---------------------------------------------------------------------------
\*\As amended by bill section 607.
---------------------------------------------------------------------------
(a) The liability of the United States for compensation to
a beneficiary in the case of death or of permanent total or
permanent partial disability may be discharged by a lump-sum
payment equal to the present value of all future payments of
compensation computed at 4 percent true discount compounded
annually if--
(1) * * *
* * * * * * *
The probability of the death of the beneficiary before the
expiration of the period during which he is entitled to
compensation shall be determined according to the most current
United States Life Tables, as developed by the United States
Department of Health, Education, and Welfare, which shall be
updated from time to time, but the lump-sum payment to a widow
or widower (or surviving partner) of the deceased employee may
not exceed 60 months' compensation. The probability of the
happening of any other contingency affecting the amount or
duration of compensation shall be disregarded.
[(b) On remarriage before reaching age 55 a widow or
widower entitled to compensation under section 8133 of this
title, shall be paid a lump sum equal to twenty-four times the
monthly compensation payment (excluding compensation on account
of another individual) to which he was entitled immediately
before the remarriage.]
(b) A widow or widower on remarriage (or on entry into a
domestic partnership) before reaching age 55 (or a surviving
partner on entry into a subsequent domestic partnership or on
marriage before age 55) who is entitled to compensation under
section 8133 of this title, shall be paid a lump sum equal to
24 times the monthly compensation payment (excluding
compensation on account of another individual) to which that
individual was entitled immediately before the remarriage (or
marriage or entry into a domestic partnership).
* * * * * * *
Subchapter II--Employees of Nonappropriated Fund Instrumentalities
* * * * * * *
Sec. 8171. Compensation for work injuries; generally\*\
---------------------------------------------------------------------------
*As amended by bill section 608(a).
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(e) For the purpose of this subchapter--
(1) the term ``domestic partner'' means either of the
individuals in a domestic partnership;
(2) the term ``domestic partnership'' means a
relationship between 2 individuals of the same sex that
meets the conditions of subparagraphs (A) and (B)--
(A) except as provided in subparagraph (B),
the term means a relationship established under
section 2502 and not dissolved under that
section; and
(B) if neither of the 2 individuals is an
employee described in subsection (a), but if at
least 1 of them is a volunteer described in
subsection (a), the term means a relationship
established under section 2502 and not
dissolved under that section, except that--
(i) the Secretary of Labor shall
exercise the authorities of the
Director under that section with
respect to the domestic partnership;
and
(ii) notwithstanding the requirement
in section 2502(a)(2)(A)(ii), each of
the individuals shall attest that the
individual who files the application
and affidavit is such a volunteer;
(3) the term ``surviving partner'' means the
decedent's domestic partner at the time of his or her
death;
(4) in the Longshore and Harbor Workers' Compensation
Act--
(A) section 2(14) shall apply as though--
(i) the term ``(or child of the
domestic partner of an employee or
volunteer referred to in section
8171(a) of title 5, United States
Code)'' were inserted after
``stepchild''; and
(ii) the term ``(or children in
domestic partnerships)'' were inserted
after ``married children'', ``(or
brothers in domestic partnerships)''
were inserted after ``married
brothers'', and ``(or sisters in
domestic partnerships)'' were inserted
after ``married sister'';
(B) in section 8(d)(1)--
(i) subparagraphs (A), (C), and (D)
shall apply as though the term ``(or
surviving partner)'' were inserted
after ``widow or widower'' each time it
appears; and
(ii) subparagraph (D) shall apply as
though the term ``wife, husband,'' were
struck and ``wife or husband (or
domestic partner)'' were inserted; and
(C) in section 9--
(i) subsection (b) shall apply as
though the portion of the first
sentence up to and including the sixth
comma reads as follows: ``If there be a
widow or widower (or surviving partner)
and no child of the deceased, to such
widow or widower (or surviving partner)
50 per centum of the average wages of
the deceased, during widowhood, or
dependent widowerhood (or during the
existence of the domestic partnership,
as the case may be), with 2 years'
compensation in 1 sum upon remarriage
(or entry into a domestic partnership)
of such widow or widower (or entry into
another domestic partnership or
marriage of such surviving partner);
and if there be a surviving child or
children of the deceased, the
additional amount of 16 2/3 per centum
of such wages for each such child; in
case of the death or remarriage (or
entry into a domestic partnership) of
such widow or widower (or entry into
another domestic partnership or a
marriage of such surviving partner),'';
(ii) subsection (c) shall apply as
though the portion of the subsection up
to and including the fourth comma reads
as follows: ``If there be 1 surviving
child of the deceased, but no widow or
widower (or surviving partner), then
for the support of such child 50 per
centum of the wages of the deceased;
and if there be more than 1 surviving
child of the deceased, but no widow or
dependent husband (or surviving
partner),'';
(iii) subsection (d) shall apply as
though--
(I) the portion of the first
sentence up through the word
``children'' reads as follows:
``If there be no surviving wife
or husband (or surviving
domestic partner) or child, or
if the amount payable to a
surviving wife or husband (or
surviving domestic partner) and
to children''; and
(II) the second sentence
reads as follows: ``But in no
case shall the aggregate amount
payable under this subsection
exceed the difference between
66\2/3\ per centum of such
wages and the amount payable as
hereinbefore provided to widow
or widower (or surviving
partner) and for the support of
surviving child or children.'';
(iv) subsection (g) shall apply as
though the term ``(or surviving
domestic partner)'' were inserted after
``surviving wife'' each time it
appears; and
(v) section 31(b)(2)(C) shall apply
as though the term ``(or domestic
partner)'' were inserted after
``spouse''.
* * * * * * *
Sec. 8173. Liability under this subchapter exclusive\*\
---------------------------------------------------------------------------
\*\As amended by bill section 608(b).
---------------------------------------------------------------------------
The liability of the United States or of a nonappropriated
fund instrumentality described by section 2105(c) of this
title, with respect to the disability or death resulting from
injury, as defined by section 2(2) of the Longshore and Harbor
Workers' Compensation Act (33 U.S.C. 902(2)), of an employee
referred to by sections 8171 and 8172 of this title, shall be
determined as provided by this subchapter. This liability is
exclusive and instead of all other liability of the United
States or the instrumentality to the employee, his legal
representative, [spouse,] spouse (or domestic partner)
dependents, next of kin, and any other person otherwise
entitled to recover damages from the United States or the
instrumentality because of the disability or death in a direct
judicial proceeding, in a civil action, or in admiralty, or by
an administrative or judicial proceeding under a workmen's
compensation statute or under a Federal tort liability statute.
* * * * * * *
CHAPTER 83--RETIREMENT
* * * * * * *
Subchapter III--Civil Service Retirement
* * * * * * *
Sec. 8331. Definitions\\
---------------------------------------------------------------------------
\\As amended by bill section 201.
---------------------------------------------------------------------------
For the purpose of this subchapter--
(1) * * *
* * * * * * *
(30) the term ``air traffic controller'' or
``controller'' means--
(A) * * *
(B) a civilian employee of the Department of
Transportation or the Department of Defense who
is the immediate supervisor of a person
described in section 2109(1)(B); [and]
(31) ``customs and border protection officer'' means
an employee in the Department of Homeland Security (A)
who holds a position within the GS-1895 job series
(determined applying the criteria in effect as of
September 1, 2007) or any successor position, and (B)
whose duties include activities relating to the arrival
and departure of persons, conveyances, and merchandise
at ports of entry, including any such employee who is
transferred directly to a supervisory or administrative
position in the Department of Homeland Security after
performing such duties (as described in subparagraph
(B)) in 1 or more positions (as described in
subparagraph (A)) for at least 3 years [.];
(32) ``domestic partner'' and ``domestic
partnership'' have the meanings given under section
2501;
(33) ``Federal employee''' means an elected official
of the United States or an employee of any entity of
the United States; and
(34) ``former domestic partner'' means a former
domestic partner of an individual--
(A) if such individual performed at least 18
months of civilian service as a Federal
employee; and
(B) if the former domestic partner was in a
domestic partnership with such individual for
at least 9 months.
Sec. 8332. Creditable service\*\
---------------------------------------------------------------------------
\*\As amended by bill section 202.
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(c)(1) * * *
* * * * * * *
(3)(A) * * *
* * * * * * *
(C) The Office of Personnel Management shall prescribe
regulations to carry out this paragraph, including regulations
under which--
(i) * * *
(ii) this paragraph shall be carried out in any case
which involves a [former spouse.] former spouse (or
former domestic partner).
* * * * * * *
(o)(1) * * *
* * * * * * *
(4) The Office of Personnel Management shall prescribe any
regulations necessary to carry out this subsection. Such
regulations shall include--
(A) * * *
(B) provisions under which the Office may provide
for--
(i) the payment, to the [spouse]
spouse (or domestic partner) or
children of any individual referred to
in the first sentence of paragraph (1),
of any amounts which (but for this
clause) would otherwise have been
nonpayable by reason of such first
sentence, subject to paragraph (5); and
* * * * * * *
(5) Regulations to carry out clause (i) of paragraph (4)(B)
shall include provisions to ensure that the authority to make
any payment to the [spouse] spouse (or domestic partner) or
children of an individual under such clause shall be available
only to the extent that the application of such clause is
considered necessary and appropriate taking into account the
totality of the circumstances, including the financial needs of
the [spouse] spouse (or domestic partner) or children, whether
the [spouse] spouse (or domestic partner) or children
participated in an offense described in paragraph (2) of which
such individual was finally convicted, and what measures, if
any, may be necessary to ensure that the convicted individual
does not benefit from any such payment.
* * * * * * *
Sec. 8339. Computation of annuity\*\
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\*\As amended by bill section 203.
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(a) * * *
* * * * * * *
(j)(1) The annuity computed under subsections (a)-(i), (n),
(q), (r), and (s) (or a portion of the annuity, if jointly
designated for this purpose by the employee or Member and the
spouse (or domestic partner) of the employee or Member under
procedures prescribed by the Office of Personnel Management)
for an employee or Member who is married (or has a domestic
partner) at the time of retiring under this subchapter is
reduced as provided in paragraph (4) of this subsection in
order to provide a survivor annuity for the spouse (or domestic
partner) under section 8341(b) of this title, unless the
employee or Member and the spouse (or domestic partner) jointly
waive the spouse's (or domestic partner's) right to a survivor
annuity in a written election filed with the Office at the time
that the employee or Member retires. Each such election shall
be made in accordance with such requirements as the Office
shall, by regulation, prescribe, and shall be irrevocable. The
Office shall provide, by regulation, that an employee or Member
may waive the survivor annuity without the spouse's (or
domestic partner's) consent if the employee or Member
establishes to the satisfaction of the Office--
(A) that the spouse's (or domestic partner's)
whereabouts cannot be determined, or
(B) that, due to exceptional circumstances, requiring
the employee or Member to seek the spouse's (or
domestic partner's) consent would otherwise be
inappropriate.
(2) If an employee or Member has a former spouse (or former
domestic partner) who is entitled to a survivor annuity as
provided in section 8341(h) of this title, the annuity of the
employee or Member computed under subsections (a)-(i), (n),
(q), (r), and (s) (or any designated portion of the annuity, in
the event that the former spouse (or former domestic partner)
is entitled to less than 55 percent of the employee or Member's
annuity) is reduced as provided in paragraph (4) of this
subsection.
(3) An employee or Member who has a former spouse (or former
domestic partner) may elect, under procedures prescribed by the
Office, to have the annuity computed under subsections (a)-(i),
(n), (q), (r), and (s) or a portion thereof reduced as provided
in paragraph (4) of this subsection in order to provide a
survivor annuity for such former spouse (or former domestic
partner) under section 8341(h) of this title, unless all rights
to survivor benefits for such former spouse (or former domestic
partner) under this subchapter based on marriage to (or being
in a domestic partnership with) such employee or Member were
waived under paragraph (1) of this subsection. An election
under this paragraph shall be made at the time of retirement
or, if later, within 2 years after the date on which the
marriage of the former spouse to (or the domestic partnership
of the former domestic partner with) the employee or Member [is
dissolved,] is dissolved (or terminated), subject to a deposit
in the Fund by the retired employee or Member of an amount
determined by the Office, as nearly as may be administratively
feasible, to reflect the amount by which the annuity of such
employee or Member would have been reduced if the election had
been continuously in effect since the date the annuity
commenced, plus interest. For the purposes of the preceding
sentence, the annual rate of interest for each year during
which the annuity would have been reduced if the election had
been in effect since the date the annuity commenced shall be 6
percent. The Office shall, by regulation, provide for payment
of the deposit required under this paragraph by a reduction in
the annuity of the employee or Member. The reduction shall, to
the extent practicable, be designed so that the present value
of the future reduction is actuarially equivalent to the
deposit required under this paragraph, except that the total
reductions in the annuity of an employee or Member to pay
deposits required by the provisions of this paragraph,
paragraph (5), or subsection (k)(2) shall not exceed 25 percent
of the annuity computed under subsections (a) through (i), (n),
(q), and (r), including adjustments under section 8340. The
reduction, which shall be effective on the same date as the
election under this paragraph, shall be permanent and
unaffected by any future termination of the entitlement of the
[former spouse.] former spouse (or former domestic partner).
Such reduction shall be independent of and in addition to the
reduction required under the first sentence of this paragraph.
An election under this paragraph--
(A) * * *
(B) shall not be effective, in the case of an
employee or Member who [is then married,] is then
married (or is then in a domestic partnership), unless
it is made with the [spouse's written consent.] the
written consent of the spouse (or domestic partner).
The Office shall provide by regulation that subparagraph (B) of
this paragraph may be waived for either of the reasons set
forth in the last sentence of paragraph (1) of this subsection.
[In the case of a retired employee or Member whose annuity is
being reduced in order to provide a survivor annuity for a
former spouse, an election to provide or increase a survivor
annuity for any other former spouse (and to continue an
appropriate reduction) may be made within the same period that,
and subject to the same conditions under which, an election
could be made under paragraph (5)(B) of this subsection for a
current spouse (subject to the provisions of this paragraph
relating to consent of a current spouse, if the retired
employee or Member is then married).] In the case of a retired
employee or Member whose annuity is being reduced in order to
provide a survivor annuity for a former spouse (or former
domestic partner), an election to provide or increase a
survivor annuity for any other former spouse (or any other
former domestic partner), and to continue an appropriate
reduction for that purpose, may be made within the same period
that, and subject to the same conditions under which, an
election could be made under paragraph (5)(B) for a current
spouse (or a current domestic partner), subject to the
provisions of this paragraph relating to consent of a current
spouse (or of a current domestic partner), if the retired
employee or Member is then married (or in a domestic
partnership). The opportunity to make an election under the
preceding sentence is in addition to any opportunity otherwise
afforded under this paragraph.
* * * * * * *
[(5)(A) Any reduction in an annuity for the purpose of
providing a survivor annuity for the current spouse of a
retired employee or Member shall be terminated for each full
month--
[(i) after the death of the spouse, or
[(ii) after the dissolution of the spouse's marriage
to the employee or Member, except that an appropriate
reduction shall be made thereafter if the spouse is
entitled, as a former spouse, to a survivor annuity
under section 8341(h) of this title.
[(B) Any reduction in an annuity for the purpose of providing
a survivor annuity for a former spouse of a retired employee or
Member shall be terminated for each full month after the former
spouse remarries before reaching age 55 or dies. This reduction
shall be replaced by an appropriate reduction or reductions
under paragraph (4) of this subsection if the retired employee
or Member has (i) another former spouse who is entitled to a
survivor annuity under section 8341(h) of this title, (ii) a
current spouse to whom the employee or Member was married at
the time of retirement and with respect to whom a survivor
annuity was not jointly waived under paragraph (1) of this
subsection, or (iii) a current spouse whom the employee or
Member married after retirement and with respect to whom an
election has been made under subparagraph (C) of this paragraph
or subsection (k)(2) of this section.
[(C)(i) Upon remarriage, a retired employee or Member who was
married at the time of retirement (including an employee or
Member whose annuity was not reduced to provide a survivor
annuity for the employee or Member's spouse or former spouse as
of the time of retirement) may irrevocably elect during such
marriage, in a signed writing received by the Office within 2
years after such remarriage or, if later, within 2 years after
the death or remarriage of any former spouse of such employee
or Member who was entitled to a survivor annuity under section
8341(h) of this title (or of the last such surviving former
spouse, if there was more than one), a reduction in the
employee or Member's annuity under paragraph (4) of this
subsection for the purpose of providing an annuity for such
employee or Member's spouse in the event such spouse survives
the employee or Member.
[(ii) Such election and reduction shall be effective the
first day of the second month after the election is received by
the Office, but not less than 9 months after the date of the
remarriage, and the retired employee or Member shall deposit in
the Fund an amount determined by the Office of Personnel
Management, as nearly as may be administratively feasible, to
reflect the amount by which the annuity of such retired
employee or Member would have been reduced if the election had
been in effect since the date of retirement or, if later, the
date the previous reduction in such retired employee or
Member's annuity was terminated under subparagraph (A) or (B)
of this paragraph, plus interest. For the purposes of the
preceding sentence, the annual rate of interest for each year
during which an annuity would have been reduced if the election
had been in effect on and after the applicable date referred to
in such sentence shall be 6 percent.
[(iii) The Office shall, by regulation, provide for payment
of the deposit required under clause (ii) by a reduction in the
annuity of the employee or Member. The reduction shall, to the
extent practicable, be designed so that the present value of
the future reduction is actuarially equivalent to the deposit
required under clause (ii), except that total reductions in the
annuity of an employee or Member to pay deposits required by
the provisions of this paragraph or paragraph (3) shall not
exceed 25 percent of the annuity computed under subsections (a)
through (i), (n), (q), and (r), including adjustments under
section 8340. The reduction required by this clause, which
shall be effective on the same date as the election under
clause (i), shall be permanent and unaffected by any future
termination of the marriage. Such reduction shall be
independent of and in addition to the reduction required under
clause (i).
[(iv) Notwithstanding any other provision of this
subparagraph, an election under this subparagraph may not be
made for the purpose of providing an annuity in the case of a
spouse by remarriage if such spouse was married to the employee
or Member at the time of such employee or Member's retirement,
and all rights to survivor benefits for such spouse under this
subchapter based on marriage to such employee or Member were
then waived under paragraph (1) of this subsection or a similar
prior provision of law.
[(v) An election to provide a survivor annuity to a person
under this subparagraph--
[(I) shall prospectively void any election made by
the employee or Member under subsection (k)(1) of this
section with respect to such person; or
[(II) shall, if an election was made by the employee
or Member under such subsection (k)(1) with respect to
a different person, prospectively void such election if
appropriate written application is made by such
employee or Member at the time of making the election
under this subparagraph.
[(vi) The deposit provisions of clauses (ii) and (iii) of
this subparagraph shall not apply if--
[(I) the employee or Member makes an election under
this subparagraph after having made an election under
subsection (k)(1) of this section; and
[(II) the election under such subsection (k)(1)
becomes void under clause (v) of this subparagraph.]
(5)(A) Any reduction in an annuity for the purpose of
providing a survivor annuity for the current spouse (or the
current domestic partner) of a retired employee or Member shall
be terminated for each full month--
(i) after the death of the spouse (or domestic
partner), or
(ii) after the dissolution of the marriage of the
spouse (or the termination of the domestic partnership
of the domestic partner) to the employee or Member,
except that an appropriate reduction shall be made thereafter
if the spouse (or domestic partner) is entitled, as a former
spouse (or former domestic partner), to a survivor annuity
under section 8341(h).
(B) Any reduction in an annuity for the purpose of providing
a survivor annuity for a former spouse (or a former domestic
partner) of a retired employee or Member shall be terminated
for each full month after the former spouse remarries (or
enters into a domestic partnership) (or the former domestic
partner enters into a subsequent domestic partnership or
marries) before reaching age 55 or dies. This reduction shall
be replaced by an appropriate reduction or reductions under
paragraph (4) if the retired employee or Member has (i) another
former spouse (or another former domestic partner) who is
entitled to a survivor annuity under section 8341(h), (ii) a
current spouse to whom the employee or Member was married (or a
current domestic partner with whom the employee or Member was
in a domestic partnership) at the time of retirement and with
respect to whom a survivor annuity was not jointly waived under
paragraph (1), or (iii) a current spouse whom the employee or
Member married (or a current domestic partner with whom the
employee or Member entered into domestic partnership) after
retirement and with respect to whom an election has been made
under subparagraph (C) or subsection (k)(2).
(C)(i) Upon entry into a subsequent marriage (or domestic
partnership), a retired employee or Member who was married (or
in a domestic partnership) at the time of retirement, including
an employee or Member whose annuity was not reduced to provide
a survivor annuity for the employee's or Member's spouse or
former spouse (or domestic partner or former domestic partner)
as of the time of retirement, may irrevocably elect during such
marriage (or domestic partnership), in a signed writing
received by the Office--
(I) within 2 years after such entry into a subsequent
marriage (or domestic partnership), or
(II) if later, within 2 years after--
(aa) the death of or entry into a subsequent
marriage (or domestic partnership) by any
former spouse (or former domestic partner) of
such employee or Member who was entitled to a
survivor annuity under section 8341(h), or
(bb) if there was more than 1, the death of
or entry into a subsequent marriage (or
domestic partnership) by the last such
surviving former spouse (or former domestic
partner),
a reduction in the employee's or Member's annuity under
paragraph (4) for the purpose of providing an annuity for such
employee's or Member's spouse (or domestic partner) in the
event such spouse (or domestic partner) survives the employee
or Member.
(ii) Such election and reduction shall be effective the first
day of the second month after the election is received by the
Office, but not less than 9 months after the date of the
subsequent marriage (or entry into the subsequent domestic
partnership), and the retired employee or Member shall deposit
in the Fund an amount determined by the Office of Personnel
Management, as nearly as may be administratively feasible, to
reflect the amount by which the annuity of such retired
employee or Member would have been reduced if the election had
been in effect since the date of retirement or, if later, the
date the previous reduction in such retired employee's or
Member's annuity was terminated under subparagraph (A) or (B),
plus interest. For the purposes of the preceding sentence, the
annual rate of interest for each year during which an annuity
would have been reduced if the election had been in effect on
and after the applicable date referred to in such sentence
shall be 6 percent.
(iii) The Office shall, by regulation, provide for payment of
the deposit required under clause (ii) by a reduction in the
annuity of the employee or Member. The reduction shall, to the
extent practicable, be designed so that the present value of
the future reduction is actuarially equivalent to the deposit
required under clause (ii), except that total reductions in the
annuity of an employee or Member to pay deposits required by
the provisions of this paragraph or paragraph (3) shall not
exceed 25 percent of the annuity computed under subsections (a)
through (i), (n), (q), and (r), including adjustments under
section 8340. The reduction required by this clause, which
shall be effective on the same date as the election under
clause (i), shall be permanent and unaffected by any future
dissolution of the marriage (or termination of the domestic
partnership). Such reduction shall be independent of and in
addition to the reduction required under clause (i).
(iv) Notwithstanding any other provision of this
subparagraph, an election under this subparagraph may not be
made for the purpose of providing an annuity in the case of a
spouse by remarriage (or a domestic partner by a subsequent
domestic partnership) if such spouse was married to (or if such
domestic partner was in a domestic partnership with) the
employee or Member at the time of such employee's or Member's
retirement, and all rights to survivor benefits for such spouse
(or domestic partner) under this subchapter based on marriage
(or domestic partnership) to such employee or Member were then
waived under paragraph (1) or a similar prior provision of law.
(v) An election to provide a survivor annuity to a person
under this subparagraph--
(I) shall prospectively void any election made by the
employee or Member under subsection (k)(1) with respect
to such person; or
(II) shall, if an election was made by the employee
or Member under such subsection (k)(1) with respect to
a different person, prospectively void such election if
appropriate written application is made by such
employee or Member at the time of making the election
under this subparagraph.
(vi) The deposit provisions of clauses (ii) and (iii) shall
not apply if--
(I) the employee or Member makes an election under
this subparagraph after having made an election under
subsection (k)(1); and
(II) the election under subsection (k)(1) becomes
void under clause (v).
(k)(1) At the time of retiring under section 8336 or 8338
of this title, an employee or Member who is found to be in good
health by the Office may elect a reduced annuity instead of an
annuity computed under subsections (a)-(i), (n), (q), (r), and
(s) and name in writing an individual having an insurable
interest in the employee or Member to receive an annuity under
section 8341(c) of this title after the death of the retired
employee or Member. The annuity of the employee or Member
making the election is reduced by 10 percent, and by 5 percent
for each full 5 years the individual named is younger than the
retiring employee or Member. However, the total reduction may
not exceed 40 percent. An annuity which is reduced under this
paragraph or any similar prior provision of law shall,
effective the first day of the month following the death of the
individual named under this paragraph, be recomputed and paid
as if the annuity had not been so reduced. In the case of [a
married employee or Member] an employee or Member who is
married (or in a domestic partnership), an election under this
paragraph on behalf of the spouse (or domestic partner) may be
made only if any right of such spouse (or domestic partner) to
a survivor annuity based on the service of such employee or
Member is waived in accordance with subsection (j)(1) of this
section.
[(2)(A) An employee or Member, who is unmarried at the time
of retiring under a provision of law which permits election of
a reduced annuity with a survivor annuity payable to such
employee or Member's spouse and who later marries, may
irrevocably elect, in a signed writing received in the Office
within 2 years after such employee or Member marries or, if
later, within 2 years after the death or remarriage of any
former spouse of such employee or Member who was entitled to a
survivor annuity under section 8341(h) of this title (or of the
last such surviving former spouse, if there was more than one),
a reduction in the retired employee or Member's current annuity
as provided in subsection (j) of this section.]
(2)(A) An employee or Member, who is unmarried (and not in a
domestic partnership) at the time of retiring under a provision
of law which permits election of a reduced annuity with a
survivor annuity payable to such employee's or Member's spouse
(or domestic partner) and who later marries (or enters into a
domestic partnership), may irrevocably elect, in a signed
writing received in the Office--
(i) within 2 years after such employee or Member
marries (or enters into a domestic partnership), or
(ii) if later, within 2 years after--
(I) the death of or entry into a subsequent
marriage (or domestic partnership) by any
former spouse (or former domestic partner) of
such employee or Member who was entitled to a
survivor annuity under section 8341(h), or
(II) if there was more than 1, the death of
or entry into a subsequent marriage (or
domestic partnership) by the last such
surviving former spouse (or surviving former
domestic partner),
a reduction in the retired employee or Member's current annuity
as provided in subsection (j).
(B)(i) The election and reduction shall take effect on the
first day of the first month beginning after the expiration of
the 9-month period beginning on the date of [marriage.]
marriage (or entry into a domestic partnership). Any such
election to provide a survivor annuity for a person--
(I) * * *
* * * * * * *
(ii) The retired employee or Member shall deposit in the Fund
an amount determined by the Office of Personnel Management, as
nearly as may be administratively feasible, to reflect the
amount by which the retired employee or Member's annuity would
have been reduced under subsection (j)(4) of this section since
the commencing date of the annuity, if the employee or Member
had been married (or in a domestic partnership) at the time of
retirement and had elected to provide a survivor annuity at
that time, plus interest. For the purposes of the preceding
sentence, the annual rate of interest for each year during
which the annuity would have been reduced if the election had
been in effect since the date of the annuity commenced shall be
6 percent.
(C) The Office shall, by regulation, provide for payment of
the deposit required under subparagraph (B)(ii) by a reduction
in the annuity of the employee or Member. The reduction shall,
to the extent practicable, be designed so that the present
value of the future reduction is actuarially equivalent to the
deposit required under subparagraph (B)(ii), except that total
reductions in the annuity of an employee or Member to pay
deposits required by this subsection or subsection (j)(3) shall
not exceed 25 percent of the annuity computed under subsections
(a) through (i), (n), (q), and (r), including adjustments under
section 8340. The reduction required by this subparagraph,
which shall be effective on the same date as the election under
subparagraph (A), shall be permanent and unaffected by any
future termination of the [marriage.] marriage or domestic
partnership). Such reduction shall be independent of and in
addition to the reduction required under subparagraph (A).
* * * * * * *
(o)(1)(A) An employee or Member--
(i) who, at the time of retirement, [is married,] is
married (or is in a domestic partnership), and
* * * * * * *
may, during the 18-month period beginning on the date of the
retirement of such employee or Member, elect to have a
reduction under subsection (j) made in the annuity of the
employee or Member (or in such portion thereof as the employee
or Member may designate) in order to provide a survivor annuity
for the spouse (or domestic partner) of such employee or
Member.
(B) An employee or Member--
(i) who, at the time of retirement, [is married,] is
married (or is in a domestic partnership), and
* * * * * * *
Sec. 8340. Cost-of-living adjustment of annuities*
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\*\As amended by bill section 204.
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(a) For the purpose of this section--
(1) the term ``base quarter'', as used with respect
to a year, means the calendar quarter ending on
September 30, of such year; [and]
(2) the price index for a base quarter is the
arithmetical mean of such index for the 3 months
comprising such quarter[.]; and
(3) the terms ``widow'', ``widower'', and ``surviving
partner'' have the respective meanings given them under
section 8341.
* * * * * * *
(c) Eligibility for an annuity increase under this section
is governed by the commencing date of each annuity payable from
the Fund as of the effective date of an increase, except as
follows:
(1) The first increase (if any) made under subsection
(b) of this section to an annuity which is payable from
the Fund to an employee or Member who retires, [to the
widow, widower, or former spouse, of a deceased
employee or Member, or to the widow, widower, former
spouse, or insurable interest designee] to the widow,
widower, or former spouse (or the surviving partner or
former domestic partner) of a deceased employee or
Member, or to the widow, widower, or former spouse (or
the surviving partner or former domestic partner), or
insurable interest designee of a deceased annuitant
whose annuity has not been increased under this
subsection or subsection (b) of this section, shall be
equal to the product (adjusted to the nearest \1/10\ of
1 percent) of--
(A) * * *
(B) the number of months (not to exceed 12
months, counting any portion of a month as a
month)--
(i) * * *
(ii) in the case of [a widow,
widower, former spouse, or insurable
interest designee] a widow, widower, or
former spouse (or surviving partner or
former domestic partner) or insurable
interest designee of a deceased
annuitant whose annuity has not been so
increased, since the annuity was first
payable to the deceased annuitant.
* * * * * * *
Sec. 8341. Survivor annuities*
---------------------------------------------------------------------------
\*\As amended by bill section 205.
---------------------------------------------------------------------------
(a) For the purpose of this section--
(1) * * *
* * * * * * *
(3) ``surviving partner''--
(A) means the surviving domestic partner of
an employee or Member who--
(i) was in a domestic partnership
with such employee or Member for at
least 9 months immediately before the
death of such employee or Member; or
(ii) satisfies such other
requirements, related to parenthood and
the domestic partnership, as the
Director of the Office of Personnel
Management shall by regulation
prescribe based on the definition of a
widow or widower under paragraphs
(1)(B) and (2)(B) of this section; and
(B) notwithstanding subparagraph (A),
includes a surviving domestic partner described
under that subparagraph only if the employee or
Member performed at least 18 months of service
as a Federal employee;
[(3)](4) ``dependent'', in the case of any child,
means that the employee or Member involved was, at the
time of the employee or Member's death, either living
with or contributing to the support of such child, as
determined in accordance with such regulations as the
Office of Personnel Management shall prescribe; and
[(4)](5) ``child'' means--
(A) [an unmarried dependent child] a
dependent child who is unmarried (and not in a
domestic partnership) and under 18 years of
age, including (i) an adopted child, and (ii) a
stepchild but only if the stepchild lived with
the employee or Member in a regular parent-
child relationship, and (iii) a recognized
natural child, and (iv) a child who lived with
and for whom a petition of adoption was filed
by an employee or Member, and who is adopted by
the surviving spouse (or surviving domestic
partner) of the employee or Member after his
death, and (v) a child of the domestic partner
of an employee or Member (not adopted by the
employee or Member), but only if--
(I) the child lived with the
employee or Member in a regular
parent-child relationship; and
(II) the employee or Member
performed at least 18 months of
service as a Federal employee;
(B) such [unmarried dependent child]
dependent child who is unmarried (and not in a
domestic partnership) regardless of age who is
incapable of self-support because of mental or
physical disability incurred before age 18; or
(C) such [unmarried dependent child]
dependent child who is unmarried (and not in a
domestic partnership) between 18 and 22 years
of age who is a student regularly pursuing a
full-time course of study or training in
residence in a high school, trade school,
technical or vocational institute, junior
college, college, university, or comparable
recognized educational institution.
* * * * * * *
(b)(1) Except as provided in paragraph (2) of this
subsection, if an employee or Member dies after having retired
under this subchapter and is survived by a [widow or widower]
widow or widower (or surviving partner), the [widow or widower]
widow or widower (or surviving partner) is entitled to an
annuity equal to 55 percent (or 50 percent if retired before
October 11, 1962) of an annuity computed under section 8339(a)-
(i), (n), (p), (q), (r), and (s) as may apply with respect to
the annuitant, or of such portion thereof as may have been
designated for this purpose under section 8339(j)(1) of this
title, unless the right to a survivor annuity was waived under
such section 8339(j)(1) or, in the case of [remarriage]
remarriage (or entry into a subsequent domestic partnership),
the employee or Member did not file an election under section
8339(j)(5)(C) or section 8339(k)(2) of this title, as the case
may be.
(2) If an annuitant--
* * * * * * *
dies and is survived by a [widow or widower] widow or widower
(or surviving partner), the [widow or widower] widow or widower
(or surviving partner) is entitled to an annuity in an amount
which would have been paid had the annuitant been married to
(or in a domestic partnership with) the [widow or widower]
widow or widower (or surviving partner) at the time of
retirement.
(3) A spouse (or domestic partner) acquired after
retirement is entitled to a survivor annuity under this
subsection only upon electing this annuity instead of any other
survivor benefit to which he may be entitled under this
subchapter or another retirement system for Government
employees. The annuity of the [widow or widower] widow or
widower (or surviving partner) under this subsection commences
on the day after the annuitant dies. This annuity and the right
thereto terminate on the last day of the month before the
[widow or widower] widow or widower (or surviving partner)--
(A) * * *
(B) except as provided in subsection (k), remarries
(or, in the case of a widow or widower, enters into a
domestic partnership) (or, in the case of a surviving
partner, enters into a subsequent domestic partnership
or marries) before becoming 55 years of age.
(4) Notwithstanding the preceding provisions of this
subsection, the annuity payable under this subsection to the
[widow or widower] widow or widower (or surviving partner) of a
retired employee or Member may not exceed the difference
between--
(A) the amount which would otherwise be payable to
such [widow or widower] widow or widower (or surviving
partner) under this subsection (determined without
regard to any waiver or designation under section
8339(j)(1) of this title or a prior similar provision
of law), and
(B) the amount of the survivor annuity payable to any
former spouse (or former domestic partner) of such
employee or Member under subsection (h) of this
section.
* * * * * * *
(d) If an employee or Member dies after completing at least
18 months of civilian service, his [widow or widower] widow or
widower (or surviving partner) is entitled to an annuity equal
to 55 percent of an annuity computed under section 8339(a)-(f),
(i), (n), (p), (q), (r), and (s) as may apply with respect to
the employee or Member, except that, in the computation of the
annuity under such section, the annuity of the employee or
Member shall be at least the smaller of--
(1) * * *
* * * * * * *
Notwithstanding the preceding sentence, the annuity payable
under this subsection to the [widow or widower] widow or
widower (or surviving partner) of an employee or Member may not
exceed the difference between--
(A) the amount which would otherwise be payable to
such [widow or widower] widow or widower (or surviving
partner) under this subsection, and
(B) the amount of the survivor annuity payable to any
former spouse (or former domestic partner) of such
employee or Member under subsection (h) of this
section.
The annuity of the [widow or widower] widow or widower (or
surviving partner) commences on the day after the employee or
Member dies. This annuity and the right thereto terminate on
the last day of the month before the [widow or widower] widow
or widower (or surviving partner)--
(i) * * *
(ii) except as provided in subsection (k), remarries
(or, in the case of a widow or widower, enters into a
domestic partnership) (or, in the case of a surviving
partner enters into a subsequent domestic partnership)
before becoming 55 years of age.
[(e)(1) For the purposes of this subsection, ``former
spouse'' includes a former spouse who was married to an
employee or Member for less than 9 months and a former spouse
of an employee or Member who completed less than 18 months of
service covered by this subchapter.]
(e)(1) For the purposes of this subsection--
(A) the term ``former spouse'' includes a former
spouse who was married to an employee or Member for
less than 9 months and a former spouse of an employee
or Member who completed less than 18 months of service
covered by this subchapter; and
(B) the term ``former domestic partner'' includes a
former domestic partner who was in a domestic
partnership with a Federal employee or Member for less
than 9 months and a former domestic partner of a
Federal employee or Member who completed less than 18
months of service covered by this subchapter.
(2) If an employee or Member dies after completing at least
18 months of civilian service, or an employee or Member dies
after retiring under this subchapter, and is survived by [a
spouse or a former spouse] a spouse or former spouse (or a
domestic partner or former domestic partner) who is the natural
or adoptive parent of a surviving child of the employee or
Member, that surviving child is entitled to an annuity equal to
the smallest of--
(A) * * *
* * * * * * *
subject to section 8340 of this title. If the employee or
Member is not survived by [a spouse or a former spouse] a
spouse or former spouse (or a domestic partner or former
domestic partner) who is the natural or adoptive parent of a
surviving child of the employee or Member, that surviving child
is entitled to an annuity equal to the smallest of--
(i) * * *
* * * * * * *
subject to section 8340 of this title.
(3) The annuity of a child under this subchapter or under
the Act of May 29, 1930, as amended from and after February 28,
1948, commences on the day after the employee or Member dies,
or commences or resumes on the first day of the month in which
the child later becomes or again becomes a student as described
by subsection (a)(3) of this section, if any lump sum paid is
returned to the Fund. This annuity and the right thereto
terminate on the last day of the month before the child--
(A) * * *
* * * * * * *
(E) [dies or marries;] dies or marries (or enters
into a domestic partnership);
whichever first occurs. On the death of the surviving spouse or
former spouse (or domestic partner or former domestic partner)
or termination of the annuity of a child, the annuity of any
other child or children shall be recomputed and paid as though
the [spouse, former spouse, or child] spouse or former spouse
(or domestic partner or former domestic partner) or child, had
not survived the employee or Member.
(4) If the annuity of a child under this subchapter
terminates under paragraph (3)(E) because of [marriage, then,
if such marriage] marriage, then, if such marriage (or a
domestic partnership, then, if such domestic partnership) ends,
such annuity shall resume on the first day of the month in
which it ends, but only if--
(A) * * *
* * * * * * *
[(f) If a Member heretofore or hereafter separated from the
service with title to deferred annuity from the Fund hereafter
dies before having established a valid claim for annuity and is
survived by a spouse to whom married at the date of separation,
the surviving spouse--
[(1) is entitled to an annuity equal to 55 percent of
the deferred annuity of the Member commencing on the
day after the Member dies and terminating on the last
day of the month before the surviving spouse dies or
remarries; or
[(2) may elect to receive the lump-sum credit instead
of annuity if the spouse is the individual who would be
entitled to the lump-sum credit and files application
therefor with the Office before the award of the
annuity.
Notwithstanding the preceding sentence, an annuity payable
under this subsection to the surviving spouse of a Member may
not exceed the difference between--
[(A) the annuity which would otherwise be payable to
such surviving spouse under this subsection, and
[(B) the amount of the survivor annuity payable to
any former spouse of such Member under subsection (h)
of this section.]
(f) If a Member heretofore or hereafter separated from the
service with title to deferred annuity from the Fund hereafter
dies before having established a valid claim for annuity and is
survived by a spouse to whom married (or a domestic partner to
whom in a domestic partnership) at the date of separation, the
surviving spouse (or surviving partner)--
(1) is entitled to an annuity equal to 55 percent of
the deferred annuity of the Member commencing on the
day after the Member dies and terminating on the last
day of the month before the surviving spouse dies or
remarries (or enters into a domestic partnership) (or
the surviving domestic partner dies or enters into a
subsequent domestic partnership or marries); or
(2) may elect to receive the lump-sum credit instead
of annuity if the spouse (or domestic partner) is the
individual who would be entitled to the lump-sum credit
and files application therefor with the Office before
the award of the annuity.
Notwithstanding the preceding sentence, an annuity payable
under this subsection to the surviving spouse (or surviving
domestic partner) of a Member may not exceed the difference
between--
(A) the annuity which would otherwise be
payable to such surviving spouse (or such
surviving domestic partner) under this
subsection, and
(B) the amount of the survivor annuity
payable to any former spouse (or any former
domestic partner) of such Member under
subsection (h).
[(g) In the case of a surviving spouse whose annuity under
this section is terminated because of remarriage before
becoming 55 years of age, annuity at the same rate shall be
restored commencing on the day the remarriage is dissolved by
death, annulment, or divorce, if--
[(1) the surviving spouse elects to receive this
annuity instead of a survivor benefit to which he may
be entitled, under this subchapter or another
retirement system for Government employees, by reason
of the remarriage; and
[(2) any lump sum paid on termination of the annuity
is returned to the Fund.]
(g) In the case of a surviving spouse (or surviving
domestic partner) whose annuity under this section is
terminated because of a subsequent entry into a marriage (or
domestic partnership) before becoming 55 years of age, annuity
at the same rate shall be restored commencing on the day the
remarriage (or subsequent domestic partnership) is dissolved by
death, annulment, or divorce (or terminated), if--
(1) the surviving spouse (or surviving domestic
partner) elects to receive this annuity instead of a
survivor benefit to which he may be entitled, under
this subchapter or another retirement system for
Government employees, by reason of the subsequent entry
into a marriage (or domestic partnership); and
(2) any lump sum paid on termination of the annuity
is returned to the Fund.
[(h)(1) Subject to paragraphs (2) through (5) of this
subsection, a former spouse of a deceased employee, Member,
annuitant, or former Member who was separated from the service
with title to a deferred annuity under section 8338(b) of this
title is entitled to a survivor annuity under this subsection,
if and to the extent expressly provided for in an election
under section 8339(j)(3) of this title, or in the terms of any
decree of divorce or annulment or any court order or court-
approved property settlement agreement incident to such decree.
[(2)(A) The annuity payable to a former spouse under this
subsection may not exceed the difference between--
[(i) the amount applicable in the case of such former
spouse, as determined under subparagraph (B) of this
paragraph, and
[(ii) the amount of any annuity payable under this
subsection to any other former spouse of the employee,
Member, or annuitant, based on an election previously
made under section 8339(j)(3) of this title, or a court
order previously issued.
[(B) The applicable amount, for purposes of subparagraph
(A)(i) of this paragraph in the case of a former spouse, is the
amount which would be applicable--
[(i) under subsection (b)(4)(A) of this section in
the case of a widow or widower, if the deceased was an
employee or Member who died after retirement;
[(ii) under subparagraph (A) of subsection (d) of
this section in the case of a widow or widower, if the
deceased was an employee or Member described in the
first sentence of such subsection; or
[(iii) under subparagraph (A) of subsection (f) of
this section in the case of a surviving spouse, if the
deceased was a Member described in the first sentence
of such subsection.
[(3) The commencement and termination of an annuity payable
under this subsection shall be governed by the terms of the
applicable order, decree, agreement, or election, as the case
may be, except that any such annuity--
[(A) shall not commence before--
[(i) the day after the employee, Member, or
annuitant dies, or
[(ii) the first day of the second month
beginning after the date on which the Office
receives written notice of the order, decree,
agreement, or election, as the case may be,
together with such additional information or
documentation as the Office may prescribe,
[whichever is later, and
[(B) shall terminate--
[(i) except as provided in subsection (k), in
the case of an annuity computed by reference to
clause (i) or (ii) of paragraph (2)(B) of this
subsection, no later than the last day of the
month before the former spouse remarries before
becoming 55 years of age or dies; or
[(ii) in the case of an annuity computed by
reference to clause (iii) of such paragraph, no
later than the last day of the month before the
former spouse remarries or dies.
[(4) For purposes of this subchapter, a modification in a
decree, order, agreement, or election referred to in paragraph
(1) of this subsection shall not be effective--
[(A) if such modification is made after the
retirement or death of the employee or Member
concerned, and
[(B) to the extent that such modification involves an
annuity under this subsection.
[(5) For purposes of this subchapter, a decree, order,
agreement, or election referred to in paragraph (1) of this
subsection shall not be effective, in the case of a former
spouse, to the extent that it is inconsistent with any joint
designation or waiver previously executed with respect to such
former spouse under section 8339(j)(1) of this title or a
similar prior provision of law.
[(6) Any payment under this subsection to a person bars
recovery by any other person.
[(7) As used in this subsection, ``court'' means any court
of any State, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin
Islands, and any Indian court.]
(h)(1) Subject to paragraphs (2) through (5), a former
spouse (or former domestic partner) of a deceased employee,
Member, annuitant, or former Member who was separated from the
service with title to a deferred annuity under section 8338(b)
is entitled to a survivor annuity under this subsection, if and
to the extent expressly provided for in an election under
section 8339(j)(3), or in the terms of any decree of divorce or
annulment or any court order or court-approved property
settlement agreement incident to such decree.
(2)(A) The annuity payable to a former spouse (or former
domestic partner) under this subsection may not exceed the
difference between--
(i) the amount applicable in the case of such former
spouse (or former domestic partner), as determined
under subparagraph (B), and
(ii) the amount of any annuity payable under this
subsection to any other former spouse (or former
domestic partner) of the employee, Member, or
annuitant, based on an election previously made under
section 8339(j)(3), or a court order previously issued.
(B) The applicable amount, for purposes of subparagraph
(A)(i) in the case of a former spouse (or former domestic
partner), is the amount which would be applicable--
(i) under subsection (b)(4)(A) in the case of a widow
or widower (or surviving partner), if the deceased was
an employee or Member who died after retirement;
(ii) under subparagraph (A) of subsection (d) in the
case of a widow or widower (or surviving partner), if
the deceased was an employee or Member described in the
first sentence of such subsection; or
(iii) under subparagraph (A) of subsection (f) in the
case of a surviving spouse (or surviving domestic
partner), if the deceased was a Member described in the
first sentence of such subsection.
(3) The commencement and termination of an annuity payable
under this subsection shall be governed by the terms of the
applicable order, decree, agreement, or election, as the case
may be, except that any such annuity--
(A) shall not commence before--
(i) the day after the employee, Member, or
annuitant dies, or
(ii) the first day of the second month
beginning after the date on which the Office
receives written notice of the order, decree,
agreement, or election, as the case may be,
together with such additional information or
documentation as the Office may prescribe,
whichever is later, and
(B) shall terminate--
(i) except as provided in subsection (k), in
the case of an annuity computed by reference to
clause (i) or (ii) of paragraph (2)(B), no
later than the last day of the month before the
former spouse remarries (or enters into a
domestic partnership) (or former domestic
partner enters into a subsequent domestic
partnership or marries) before becoming 55
years of age or dies; or
(ii) in the case of an annuity computed by
reference to clause (iii) of such paragraph, no
later than the last day of the month before the
former spouse remarries (or enters into a
domestic partnership) or dies (or the former
domestic partner enters into a subsequent
domestic partnership or marries or dies).
(4) For purposes of this subchapter, a modification in a
decree, order, agreement, or election referred to in paragraph
(1) shall not be effective--
(A) if such modification is made after the retirement
or death of the employee or Member concerned, and
(B) to the extent that such modification involves an
annuity under this subsection.
(5) For purposes of this subchapter, a decree, order,
agreement, or election referred to in paragraph (1) shall not
be effective, in the case of a former spouse (or former
domestic partner), to the extent that it is inconsistent with
any joint designation or waiver previously executed with
respect to such former spouse (or former domestic partner)
under section 8339(j)(1) or a similar prior provision of law.
(6) Any payment under this subsection to a person bars
recovery by any other person.
(7) As used in this subsection, ``court'' means any court
of any State, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin
Islands, and any Indian court.
[(i) The requirement in subsections (a)(1)(A) and (a)(2)(A)
of this section that the surviving spouse of an employee or
Member have been married to such employee or Member for at
least 9 months immediately before the employee or Member's
death in order to qualify as the widow or widower of such
employee or Member shall be deemed satisfied in any case in
which the employee or Member dies within the applicable 9-month
period, if--
[(1) the death of the employee or Member was
accidental; or
[(2) the surviving spouse of such individual had been
previously married to the individual and subsequently
divorced, and the aggregate time married is at least 9
months.]
(i) The requirement in subsections (a)(1)(A), (a)(2)(A),
and (a)(5)(A) that the surviving spouse (or surviving domestic
partner) of an employee or Member have been married to (or in a
domestic partnership with) such employee or Member for at least
9 months immediately before the employee's or Member's death in
order to qualify as the widow or widower (or surviving partner)
of such employee or Member shall be deemed satisfied in any
case in which the employee or Member dies within the applicable
9-month period, if--
(1) the death of the employee or Member was
accidental; or
(2) the surviving spouse (or surviving domestic
partner) of such individual had been previously married
to (or in a domestic partnership with) the individual
that was subsequently dissolved (or terminated), and
the aggregate time married (or in a domestic
partnership) is at least 9 months.
[(k)(1) Subsections (b)(3)(B), (d)(ii), and (h)(3)(B)(i)
(to the extent that they provide for termination of a survivor
annuity because of a remarriage before age 55) shall not apply
if the widow, widower, or former spouse was married for at
least 30 years to the individual on whose service the survivor
annuity is based.
[(2) A remarriage described in paragraph (1) shall not be
taken into account for purposes of section 8339(j)(5)(B) or (C)
or any other provision of this chapter which the Office may by
regulation identify in order to carry out the purposes of this
subsection.]
(j)(1) Subsections (b)(3)(B), (d)(ii), and (h)(3)(B)(i), to
the extent that they provide for termination of a survivor
annuity because of a subsequent entry into a marriage (or
domestic partnership) before age 55, shall not apply if the
widow, widower or former spouse was married to (or the
surviving partner or former domestic partner was in a domestic
partnership with) the individual on whose service the survivor
annuity is based for at least 30 years.
(2) A subsequent entry into a marriage (or domestic
partnership) described in paragraph (1) shall not be taken into
account for purposes of subparagraph (B) or (C) of section
8339(j)(5) or any other provision of this chapter which the
Director of the Office of Personnel Management may by
regulation identify in order to carry out the purposes of this
subsection.
Sec. 8342. Lump-sum benefits; designation of beneficiary; order of
precedence\*\
---------------------------------------------------------------------------
\*\As amended by bill section 206.
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(c) Lump-sum benefits authorized by subsections (d)-(f) of
this section shall be paid to the person or persons surviving
the employee or Member and alive at the date title to the
payment arises in the following order of precedence, and the
payment bars recovery by any other person:
First, to the beneficiary or beneficiaries designated
by the employee or Member in a signed and witnessed
writing received in the Office before his death. For
this purpose, a designation, change, or cancellation of
beneficiary in a will or other document not so executed
and filed has no force or effect.
Second, if there is no designated beneficiary, to the
widow or widower (or surviving partner) of the employee
or Member.
Third, if none of the above, to the child or children
of the employee or Member and descendants of deceased
children by representation.
Fourth, if none of the above, to the parents of the
employee or Member or the survivor of them.
Fifth, if none of the above, to the duly appointed
executor or administrator of the estate of the employee
or Member.
Sixth, if none of the above, to such other next of
kin of the employee or Member as the Office determines
to be entitled under the laws of the domicile of the
employee or Member at the date of his death.
For the purpose of this subsection, ``child'' includes a
natural child and an adopted child, but does not include a
[stepchild.] stepchild (or a child of a domestic partner which
child is not otherwise a child of the employee or Member).
* * * * * * *
(j)(1)(A) Payment of the lump-sum credit under subsection
(a) may be made only if the spouse (or domestic partner), if
any (or the domestic partner, if any), and any former spouse
(or former domestic partner) of the employee or Member are
notified of the employee or Member's application.
(B) The Office shall prescribe regulations under which the
lump-sum credit shall not be paid without the consent of a
spouse (or domestic partner) or former spouse (or former
domestic partner) of the employee or Member where the Office
has received such additional information and documentation as
the Office may require that--
(i) * * *
(ii) payment of the lump-sum credit would extinguish
the entitlement of the spouse (or domestic partner) or
former spouse (or former domestic partner), under a
court order on file with the Office, to a survivor
annuity under section 8341(h) or to any portion of an
annuity under section 8345(j).
(2)(A) Notification of a spouse (or domestic partner) or
former spouse (or former domestic partner) under this
subsection shall be made in accordance with such requirements
as the Office shall by regulation prescribe.
(B) Under the regulations, the Office may provide that
paragraph (1)(A) of this subsection may be waived with respect
to a spouse (or domestic partner) or former spouse (or former
domestic partner) if the employee or Member establishes to the
satisfaction of the Office that the whereabouts of such spouse
(or domestic partner) or former spouse (or former domestic
partner) cannot be determined.
Sec. 8343a. Alternative forms of annuities\*\
---------------------------------------------------------------------------
\*\As amended by bill section 207.
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(a) * * *
(b) Subject to subsection (c), the Office shall by
regulation provide for such alternative forms of annuities as
the Office considers appropriate, except that among the
alternatives offered shall be--
(1) * * *
(2) in the case of an employee or Member who is
married (or in a domestic partnership) at the time of
retirement, an alternative which provides for--
(A) * * *
(B) payment of an annuity to the employee or
Member for life, with a survivor annuity
payable for the life of a surviving spouse (or
surviving domestic partner).
(d) An employee or Member who, at the time of retiring
under this subchapter--
(1) is [married,] married (or in a domestic
partnership), shall be ineligible to make an election
under this section unless a waiver is made under
section 8339(j)(1) of this title; or
(2) has a [former spouse,] former spouse (or former
domestic partner), shall be ineligible to make an
election under this section if the [former spouse,]
former spouse (or former domestic partner), is entitled
to benefits under section 8341(h) or 8345(j) of this
title (based on the service of the employee or Member)
under the terms of a decree of divorce or annulment, or
a court order or court-approved property settlement
incident to any such decree, with respect to which the
Office has been duly notified.
(e) An employee or Member who is married (or in a domestic
partnership) at the time of retiring under this subchapter and
who makes an election under this section may, during the 18-
month period beginning on the date of retirement, make the
election provided for under section 8339(o) of this title,
subject to the deposit requirement thereunder.
* * * * * * *
Sec. 8347. Administration; regulations\*\
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\*\As amended by bill section 208.
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(n)(1) Notwithstanding any other provision of this
subchapter, the Director of Central Intelligence shall, in a
manner consistent with the administration of this subchapter by
the Office, and to the extent considered appropriate by the
Director of Central Intelligence--
(A) * * *
(D) collect deposits to the Fund made by such
employees, [their spouses, and their former spouses]
their spouses (and domestic partners), and their former
spouses (and former domestic partners);
* * * * * * *
Sec. 8351. Participation in the Thrift Savings Plan\\
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\\As amended by bill section 209.
---------------------------------------------------------------------------
(a) * * *
(b)(1) * * *
* * * * * * *
(5)(A) The provisions of section 8435 of this title that
require a waiver or consent by the spouse (or domestic partner)
of an employee or Member (or former employee or Member) shall
not apply with respect to sums in the Thrift Savings Fund
contributed by the employee or Member (or former employee or
Member) and earnings in the fund attributable to such sums.
(B) An election or change of election authorized by
subchapter III of chapter 84 of this title shall be effective
in the case of [a married employee or Member] an employee or
Member who is married (or in a domestic partnership), and a
loan or withdrawal may be approved under section 8433(g) and
(h) of this title in such case, only after the Executive
Director notifies the employee's or Member's spouse (or
domestic partner) that the election or change of election has
been made or that the Executive Director has received an
application for such loan or withdrawal, as the case may be.
(C) Subparagraph (B) may be waived with respect to a spouse
(or domestic partner) if the employee or Member establishes to
the satisfaction of the Executive Director of the Federal
Retirement Thrift Investment Board that the whereabouts of such
spouse (or domestic partner) cannot be determined.
(D) Except with respect to the making of loans or withdrawals
under section 8433(g) or (h), none of the provisions of this
paragraph requiring notification to a spouse or former spouse
(or domestic partner or former domestic partner) of an
employee, Member, former employee, or former Member shall apply
in any case in which the nonforfeitable account balance of the
employee, Member, former employee, or former Member is $3,500
or less.
* * * * * * *
CHAPTER 84--FEDERAL EMPLOYEES' RETIREMENT SYSTEM
* * * * * * *
Sec.
8401. Definitions
* * * * * * *
[8416. Survivor reduction for a current spouse.]\*\
\*\As amended by bill section 312(b).
8416. Survivor reduction for a current spouse (or domestic partner).
[8417. Survivor reduction for a former spouse.]\\
\\As amended by bill section 313(b).
8417. Survivor reduction for a former spouse (or former domestic
partner).
* * * * * * *
[8435. Protections for spouses and former spouses.]\*\
\*\As amended by bill section 323(b).
8435. Protection for spouses and former spouses (and domestic partners
and former domestic partners).
* * * * * * *
[8442. Rights of a widow or widower.]
As amended by bill section 332(b).
8442. Rights of a widow or widower (or surviving partner).
* * * * * * *
[8445. Rights of a former spouse.]=
=As amended by bill section 334(b).
8445. Rights of a former spouse (or former domestic partner).
* * * * * * *
Subchapter I--General Provisions
Sec. 8401. DefinitionsSec.
---------------------------------------------------------------------------
\Sec. \As amended by bill section 311.
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For the purposes of this chapter--
(1) * * *
* * * * * * *
(35) the term ``air traffic controller'' or
``controller'' means--
(A) * * *
(B) a civilian employee of the Department of
Transportation or the Department of Defense who
is the immediate supervisor of a person
described in section 2109(1)(B); [and]
(36) the term ``customs and border protection
officer'' means an employee in the Department of
Homeland Security (A) who holds a position within the
GS-1895 job series (determined applying the criteria in
effect as of September 1, 2007) or any successor
position, and (B) whose duties include activities
relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry,
including any such employee who is transferred directly
to a supervisory or administrative position in the
Department of Homeland Security after performing such
duties (as described in subparagraph (B)) in 1 or more
positions (as described in subparagraph (A)) for at
least 3 years[.];
(37) ``domestic partner'' and ``domestic
partnership'' have the meanings given under section
2501;
(38) ``Federal employee'' means an elected official
of the United States or an employee of any entity of
the United States; and
(39) ``former domestic partner'' means a former
domestic partner of an individual--
(A) if such individual performed at least 18
months of civilian service creditable under
section 8411 as a Federal employee; and
(B) if the former domestic partner was in a
domestic partnership with such individual for
at least 9 months.
* * * * * * *
Subchapter II--Basic Annuity
* * * * * * *
Sec. 8411. Creditable service\*\
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*As amended by bill section 302.
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(a) * * *
* * * * * * *
(c)(1) * * *
* * * * * * *
(4)(A) * * *
* * * * * * *
(C) The Office of Personnel Management shall prescribe
regulations to carry out this paragraph, including regulations
under which--
(i) * * *
(ii) this paragraph shall be carried out in any case
which involves a former spouse (or former domestic
partner).
* * * * * * *
(l)(1) * * *
* * * * * * *
(4) The Office of Personnel Management shall prescribe any
regulations necessary to carry out this subsection. Such
regulations shall include--
(A) * * *
(B) provisions under which the Office may provide
for--
(i) the payment, to the spouse (or domestic
partner) or children of any individual referred
to in the first sentence of paragraph (1), of
any amounts which (but for this clause) would
otherwise have been nonpayable by reason of
such first sentence, subject to paragraph (5);
and
* * * * * * *
(5) Regulations to carry out clause (i) of paragraph (4)(B)
shall include provisions to ensure that the authority to make
any payment under such clause to the spouse (or domestic
partner) or children of an individual shall be available only
to the extent that the application of such clause is considered
necessary and appropriate taking into account the totality of
the circumstances, including the financial needs of the spouse
(or domestic partner) or children, whether the spouse (or
domestic partner) or children participated in an offense
described in paragraph (2) of which such individual was finally
convicted, and what measures, if any, may be necessary to
ensure that the convicted individual does not benefit from any
such payment.
* * * * * * *
Sec. 8416. Survivor reduction for a current spouse (or domestic
partner)\*\
---------------------------------------------------------------------------
*As amended by bill section 312.
---------------------------------------------------------------------------
(a)(1) If an employee or Member is married (or in a
domestic partnership) at the time of retiring under this
chapter, the reduction described in section 8419(a) shall be
made unless the employee or Member and the spouse (or domestic
partner) jointly waive, by written election, any right which
the spouse (or domestic partner) may have to a survivor annuity
under section 8442 based on the service of such employee or
Member. A waiver under this paragraph shall be filed with the
Office under procedures prescribed by the Office.
(2) Notwithstanding paragraph (1), an employee or Member
who is married (or in a domestic partnership) at the time of
retiring under this chapter may waive the annuity for a
surviving spouse (or domestic partner) without the spouse's (or
domestic partner's) consent if the employee or Member
establishes to the satisfaction of the Office (in accordance
with regulations prescribed by the Office)--
(A) that the spouse's (or domestic partner's)
whereabouts cannot be determined; or
(B) that, due to exceptional circumstances, requiring
the employee or Member to seek the spouse's (or
domestic partner's) consent would otherwise be
inappropriate.
* * * * * * *
[(b)(1) Upon remarriage, a retired employee or Member who
was married at the time of retirement (including an employee or
Member whose annuity was not reduced to provide a survivor
annuity for the employee's or Member's spouse or former spouse
as of the time of retirement) may irrevocably elect during such
marriage, in a signed writing received by the Office within 2
years after such remarriage or, if later, within 2 years after
the death or remarriage of any former spouse of such employee
or Member who was entitled to a survivor annuity under section
8445 (or of the last such surviving former spouse, if there was
more than one), a reduction in the employee's or Member's
annuity under section 8419(a) for the purpose of providing an
annuity for such employee's or Member's spouse in the event
such spouse survives the employee or Member.
[(2) The election and reduction shall be effective the
first day of the second month after the election is received by
the Office, but not less than 9 months after the date of the
remarriage.
[(3) An election to provide a survivor annuity to an
individual under this subsection--
[(A) shall prospectively void any election made by
the employee or Member under section 8420 with respect
to such individual; or
[(B) shall, if an election was made by the employee
or Member under section 8420 with respect to a
different individual, prospectively void such election
if appropriate written application is made by such
employee or Member at the time of making the election
under this subsection.
[(4) Any election under this subsection made by an employee
or Member on behalf of an individual after the retirement of
such employee or Member shall not be effective if--
[(A) the employee or Member was married to such
individual at the time of retirement; and
[(B) the annuity rights of such individual based on
the service of such employee or Member were then waived
under subsection (a).]
(b)(1) Upon entry into a subsequent marriage (or subsequent
domestic partnership), a retired employee or Member who was
married (or in a domestic partnership) at the time of
retirement, including an employee or Member whose annuity was
not reduced to provide a survivor annuity for the employee's or
Member's spouse or former spouse (or domestic partner or former
domestic partner) as of the time of retirement, may irrevocably
elect during such marriage (or domestic partnership), in a
signed writing received by the Office--
(A) within 2 years after such entry into a subsequent
marriage (or domestic partnership), or
(B) if later, within 2 years after--
(i) the death of or entry into a subsequent
marriage (or domestic partnership) by any
former spouse (or former domestic partner) of
such employee or Member who was entitled to a
survivor annuity under section 8445, or
(ii) if there was more than 1, the death of
or entry into a subsequent marriage (or
domestic partnership) by the last such
surviving former spouse (or former domestic
partner),
a reduction in the employee's or Member's annuity under section
8419(a) for the purpose of providing an annuity for such
employee's or Member's spouse (or domestic partner) in the
event such spouse (or domestic partner) survives the employee
or Member.
(2) The election and reduction shall be effective the first
day of the second month after the election is received by the
Office, but not less than 9 months after the date of the
subsequent marriage (or entry into the subsequent domestic
partnership).
(3) An election to provide a survivor annuity to an
individual under this subsection--
(A) shall prospectively void any election made by the
employee or Member under section 8420 with respect to
such individual; or
(B) shall, if an election was made by the employee or
Member under section 8420 with respect to a different
individual, prospectively void such election if
appropriate written application is made by such
employee or Member at the time of making the election
under this subsection.
(4) Any election under this subsection made by an employee
or Member on behalf of an individual after the retirement of
such employee or Member shall not be effective if--
(A) the employee or Member was married to (or in a
domestic partnership with) such individual at the time
of retirement; and
(B) the annuity rights of such individual based on
the service of such employee or Member were then waived
under subsection (a).
[(c)(1) An employee or Member who is unmarried at the time
of retiring under this chapter and who later marries may
irrevocably elect, in a signed writing received by the Office
within 2 years after such employee or Member marries or, if
later, within 2 years after the death or remarriage of any
former spouse of such employee or Member who was entitled to a
survivor annuity under section 8445 (or of the last such
surviving former spouse, if there was more than one), a
reduction in the current annuity of the retired employee or
Member, in accordance with section 8419(a).]
(c)(1) An employee or Member who is unmarried (and not in a
domestic partnership) at the time of retiring under this
chapter and who later marries (or enters into a domestic
partnership) may irrevocably elect, in a signed writing
received by the Office--
(A) within 2 years after such employee or Member
marries (or enters into a domestic partnership), or
(B) if later, within 2 years after--
(i) the death of or entry into a subsequent
remarriage (or domestic partnership) by of any
former spouse (or domestic partner) of such
employee or Member who was entitled to a
survivor annuity under section 8445,
(ii) if more than 1, the death of or entry
into a subsequent marriage (or domestic
partnership) by the last such surviving former
spouse (or surviving domestic partner),
a reduction in the current annuity of the retired employee or
Member, in accordance with section 8419(a).
(2) The election and reduction shall take effect the first
day of the first month beginning 9 months after the date of
[marriage.] marriage (or domestic partnership). Any such
election to provide a survivor annuity for an individual--
(A) * * *
* * * * * * *
(d)(1) An employee or Member--
(A) who is married (or in a domestic partnership) on
the date of retiring under this chapter, and
(B) with respect to whose spouse (or domestic
partner) a waiver under subsection (a) has been made,
may, during the 18-month period beginning on such date, elect
to have a reduction made under section 8419 in order to provide
a survivor annuity under section 8442 for such spouse (or
domestic partner).
* * * * * * *
Sec. 8417. Survivor reduction for a former spouse (or former domestic
partner)\*\
---------------------------------------------------------------------------
\*\As amended by bill section 313.
---------------------------------------------------------------------------
(a) If an employee or Member has a former spouse (or former
domestic partner) who is entitled to a survivor annuity as
provided in section 8445, the reduction described in section
8419(a) shall be made.
(b)(1) An employee or Member who has a former spouse (or
former domestic partner) may elect, under procedures prescribed
by the Office, a reduction in the annuity of the employee or
Member under section 8419(a) in order to provide a survivor
annuity for such former spouse (or former domestic partner)
under section 8445.
(2) An election under this subsection shall be made at the
time of retirement or, if the marriage is dissolved (or the
domestic partnership is terminated) after the date of
retirement, within 2 years after the date on which the marriage
of the former spouse to the employee or Member is so dissolved
(or the domestic partnership of the former domestic partner
with the employee or Member is so terminated).
(3) An election under this subsection--
(A) shall not be effective to the extent that it--
(i) * * *
(ii) would cause the total of survivor
annuities payable under sections 8442 and 8445,
respectively, based on the service of the
employee or Member to exceed the amount which
would be payable to a widow or widower (or
surviving partner) of such employee or Member
under such section 8442 (determined without
regard to any reduction to provide for an
annuity under such section 8445); and
(B) shall not be effective, in the case of an
employee or Member who is then married (or in a
domestic partnership), unless it is made with the
spouse's (or domestic partner's) written consent.
The Office shall by regulation provide that subparagraph (B)
may be waived for either of the reasons set forth in section
8416(a)(2).
Sec. 8418. Survivor elections; deposit; offsets\\
---------------------------------------------------------------------------
\\As amended by bill section 314.
---------------------------------------------------------------------------
(a) * * *
(b) The Office shall, by regulation, provide for payment of
the deposit required under subsection (a) by a reduction in the
annuity of the employee or Member. The reduction shall, to the
extent practicable, be designed so that the present value of
the future reduction is actuarially equivalent to the deposit
required under subsection (a), except that the total reductions
in the annuity of an employee or Member to pay deposits
required by this section shall not exceed 25 percent of the
annuity computed under section 8415 or section 8452, including
adjustments under section 8462. The reduction required by this
subsection, which shall be effective at the same time as the
election under section 8416(b) and (c) or section 8417(b),
shall be permanent and unaffected by any future termination of
the marriage (or domestic partnership) or the entitlement of
the [former spouse.] former spouse (or former domestic
partner). Such reduction shall be independent of and in
addition to the reduction required under section 8416(b) and
(c) or section 8417(b).
* * * * * * *
Sec. 8419. Survivor reductions; computation\*\
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\*\As amended by bill section 315.
---------------------------------------------------------------------------
(a)(1) Except as provided in paragraph (2), the annuity of
an annuitant computed under section 8415, or under section 8452
(including subsection (a)(2) of such section, if applicable) or
one-half of the annuity, if jointly designated for this purpose
by the employee or Member and the spouse (or domestic partner)
of the employee or Member under procedures prescribed by the
Office of Personnel Management, shall be reduced by 10 percent
if a survivor annuity, or a combination of survivor annuities,
under section 8442 or 8445 (or both) are to be provided for.
(2)(A) If no survivor annuity under section 8442 is to be
provided for, but one or more survivor annuities under section
8445 involving a total of less than the entirety of the amount
referred to in subsection (b)(2) of such section are to be
provided for, the annuity of the annuitant involved (as
computed under section 8415, or under section 8452 (including
subsection (a)(2) of such section, if applicable)) or one-half
of the annuity, if jointly designated for this purpose by the
employee or Member and the spouse (or domestic partner) of the
employee or Member under procedures prescribed by the Office of
Personnel Management, shall be reduced by an appropriate
percentage determined under subparagraph (B).
* * * * * * *
[(b)(1) Any reduction in an annuity for the purpose of
providing a survivor annuity for the current spouse of a
retired employee or Member shall be terminated for each full
month--
[(A) after the death of the spouse; or
[(B) after the dissolution of the spouse's marriage
to the employee or Member, except that an appropriate
reduction shall be made thereafter if the spouse is
entitled, as a former spouse, to a survivor annuity
under section 8445.
[(2) Any reduction in an annuity for the purpose of
providing a survivor annuity for a former spouse of a retired
employee or Member shall be terminated for each full month
after the former spouse remarries before reaching age 55 or
dies. This reduction shall be replaced by appropriate
reductions under subsection (a) if the retired employee or
Member has one or more of the following:
[(A) another former spouse who is entitled to a
survivor annuity under section 8445;
[(B) a current spouse to whom the employee or Member
was married at the time of retirement and with respect
to whom a survivor annuity was not waived under section
8416(a) (or, if waived, with respect to whom an
election under section 8416(d) has been made); or
[(C) a current spouse whom the employee or Member
married after retirement and with respect to whom an
election has been made under subsection (b) or (c) of
section 8416.]
(b)(1) Any reduction in an annuity for the purpose of
providing a survivor annuity for the current spouse (or current
domestic partner) of a retired employee or Member shall be
terminated for each full month--
(A) after the death of the spouse (or domestic
partner); or
(B) after the dissolution of the spouse's marriage to
(or the termination of the domestic partner's domestic
partnership with) the employee or Member, except that
an appropriate reduction shall be made thereafter if
the spouse (or domestic partner) is entitled, as a
former spouse (or former domestic partner), to a
survivor annuity under section 8445.
(2) Any reduction in an annuity for the purpose of
providing a survivor annuity for a former spouse (or former
domestic partner) of a retired employee or Member shall be
terminated for each full month after the former spouse
remarries (or enters into a domestic partnership) (or the
former domestic partner enters into a subsequent domestic
partnership or marries) before reaching age 55 or dies. This
reduction shall be replaced by appropriate reductions under
subsection (a) if the retired employee or Member has--
(A) another former spouse (or former domestic
partner) who is entitled to a survivor annuity under
section 8445;
(B) a current spouse to whom the employee or Member
was married (or a current domestic partner with whom
the employee or Member was in a domestic partnership)
at the time of retirement and with respect to whom a
survivor annuity was not waived under section 8416(a)
or, if waived, with respect to whom an election under
section 8416(d) has been made; or
(C) a current spouse whom the employee or Member
married (or current domestic partner with whom the
employee or Member entered into a domestic partnership)
after retirement and with respect to whom an election
has been made under subsection (b) or (c) of section
8416.
Sec. 8420. Insurable interest reductions\*\
---------------------------------------------------------------------------
\*\As amended by bill section 316.
---------------------------------------------------------------------------
(a) * * *
(b)(1) In the case of a [married employee or Member]
employee or Member who is married (or in a domestic
partnership), an election under this section on behalf of the
spouse or domestic partner may be made only if any right of
such spouse or domestic partner to a survivor annuity based on
the service of such employee or Member is waived in accordance
with section 8416(a).
(2) Paragraph (1) does not apply in the case of an employee
or Member if such employee or Member has a former spouse (or
former domestic partner) who would become entitled to an
annuity under section 8445 as a survivor of such employee or
Member.
* * * * * * *
Sec. 8420a. Alternative forms of annuities\\
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\\As amended by bill section 317.
---------------------------------------------------------------------------
(a) * * *
(b) Subject to subsection (c), the Office shall by
regulation provide for such alternative forms of annuities as
the Office considers appropriate, except that among the
alternatives offered shall be--
(1) * * *
(2) in the case of an employee or Member who is
married (or in a domestic partnership) at the time of
retirement, an alternative which provides for--
(A) * * *
(B) payment of an annuity to the employee or
Member for life, with a survivor annuity
payable for the life of a [surviving spouse.]
surviving spouse (or surviving domestic
partner).
* * * * * * *
(d) An employee or Member who, at the time of retiring
under this subchapter--
(1) is [married,] married (or in a domestic
partnership) shall be ineligible to make an election
under this section unless a waiver is made under
section 8416(a); or
(2) has a former spouse (or former domestic partner),
shall be ineligible to make an election under this
section if the former spouse (or former domestic
partner) is entitled to benefits under section 8445 or
8467 (based on the service of the employee or Member)
under the terms of a decree of divorce or annulment, or
a court order or court-approved property settlement
incident to any such decree, with respect to which the
Office has been duly notified.
(e) An employee or Member who is married (or in a domestic
partnership) at the time of retiring under this subchapter and
who makes an election under this section may, during the 18-
month period beginning on the date of retirement, make the
election provided for under section 8416(d), subject to the
deposit requirement thereunder.
* * * * * * *
Sec. 8424. Lump-sum benefits; designation of beneficiary; order of
precedence\*\
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\*\As amended by bill section 318.
---------------------------------------------------------------------------
(a) * * *
(b)(1)(A) Payment of the lump-sum credit under subsection
(a) may be made only if [the spouse, if any, and any former
spouse] any spouse or former spouse (and any domestic partner
or former domestic partner) of the employee or Member are
notified of the employee or Member's application.
(B) The Office shall prescribe regulations under which the
lump-sum credit shall not be paid without the consent of a
[spouse or former spouse] spouse or former spouse (or domestic
partner or former domestic partner) of the employee or Member
where the Office has received such additional information or
documentation as the Office may require that--
* * * * * * *
(ii) payment of the lump-sum credit would extinguish
the entitlement of the [spouse or former spouse] spouse
or former spouse (or domestic partner or former
domestic partner), under a court order on file with the
Office, to a survivor annuity under section 8445 or to
any portion of an annuity under section 8467.
(2)(A) Notification of a [spouse or former spouse] spouse
or former spouse (or domestic partner or former domestic
partner) under this subsection shall be made in accordance with
such requirements as the Office shall by regulation prescribe.
(B) Under the regulations, the Office may provide that
paragraph (1)(A) may be waived with respect to a [spouse or
former spouse] spouse or former spouse (or domestic partner or
former domestic partner) if the employee or Member establishes
to the satisfaction of the Office that the whereabouts of such
[spouse or former spouse] spouse or former spouse (or domestic
partner or former domestic partner) cannot be determined.
* * * * * * *
(d) Lump-sum benefits authorized by subsections (e) through
(g) shall be paid to the individual or individuals surviving
the employee or Member and alive at the date title to the
payment arises in the following order of precedence, and the
payment bars recovery by any other individual:
First, to the beneficiary or beneficiaries designated
by the employee or Member in a signed and witnessed
writing received in the Office before the death of such
employee or Member. For this purpose, a designation,
change, or cancellation of beneficiary in a will or
other document not so executed and filed has no force
or effect.
Second, if there is no designated beneficiary, to the
[widow or widower] widow or widower (or surviving
partner) of the employee or Member.
Third, if none of the above, to the child or children
of the employee or Member and descendants of deceased
children by representation.
Fourth, if none of the above, to the parents of the
employee or Member or the survivor of them.
Fifth, if none of the above, to the duly appointed
executor or administrator of the estate of the employee
or Member.
Sixth, if none of the above, to such other next of
kin of the employee or Member as the Office determines
to be entitled under the laws of the domicile of the
employee or Member at the date of death of the employee
or Member.
For the purpose of this subsection, ``child'' includes a
natural child and an adopted child, but does not include a
[stepchild.] stepchild (or a child of a domestic partner which
child is not otherwise a child of the employee or Member).
* * * * * * *
Subchapter III--Thrift Savings Plan
Sec. 8433. Benefits and election of benefits\*\
---------------------------------------------------------------------------
\*\As amended by bill section 321.
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(a) * * *
* * * * * * *
(e)(1) * * *
[(2) Notwithstanding section 8424(d), if an employee,
Member, former employee, or former Member dies and has
designated as sole or partial beneficiary his or her spouse at
the time of death, or, if an employee, Member, former employee,
or former Member, dies with no designated beneficiary and is
survived by a spouse, the spouse may maintain the portion of
the employee's or Member's account to which the spouse is
entitled in accordance with the following terms:
[(A) Subject to the limitations of subparagraph (B),
the spouse shall have the same withdrawal options under
subsection (b) as the employee or Member were the
employee or Member living.
[(B) The spouse may not make withdrawals under
subsection (g) or (h).
[(C) The spouse may not make contributions or
transfers to the account.
[(D) The account shall be disbursed upon the death of
the surviving spouse. A beneficiary or surviving spouse
of a deceased spouse who has inherited an account is
ineligible to maintain the inherited spousal account.]
(2) Notwithstanding section 8424(d), if an employee,
Member, former employee, or former Member dies and has
designated as sole or partial beneficiary his or her spouse (or
domestic partner) at the time of death, or, if an employee,
Member, former employee, or former Member, dies with no
designated beneficiary and is survived by a spouse (or domestic
partner), the spouse (or domestic partner) may maintain the
portion of the employee's or Member's account to which the
spouse (or domestic partner) is entitled in accordance with the
following terms:
(A) Subject to the limitations of subparagraph (B),
the spouse (or domestic partner) shall have the same
withdrawal options under subsection (b) as the employee
or Member were the employee or Member living.
(B) The spouse (or domestic partner) may not make
withdrawals under subsection (g) or (h).
(C) The spouse (or domestic partner) may not make
contributions or transfers to the account.
(D) The account shall be disbursed upon the death of
the surviving spouse (or surviving domestic partner). A
beneficiary or surviving spouse (or surviving domestic
partner) of a deceased spouse (or domestic partner) who
has inherited an account is ineligible to maintain the
inherited spousal account.
* * * * * * *
Sec. 8434. Annuities: methods of payment; election; purchase\*\
---------------------------------------------------------------------------
\*\As amended by bill section 322.
---------------------------------------------------------------------------
(a)(1) * * *
(2) The methods of payment prescribed under paragraph (1)
shall include, but not be limited to--
(A) * * *
(B) a method which provides for the payment of a
monthly annuity to an annuitant for the joint lives of
the annuitant and the spouse (or domestic partner) of
the annuitant and an appropriate monthly annuity to the
one of them who survives the other of them for the life
of the survivor;
* * * * * * *
(E) a method which provides for the payment of a
monthly annuity--
(i) to the annuitant for the joint lives of
the annuitant and an individual who is
designated by the annuitant under regulations
prescribed by the Executive Director and (I) is
a former spouse (or former domestic partner) of
the annuitant, or (II) has an insurable
interest in the annuitant; and
* * * * * * *
Sec. 8435. Protections for spouses and former spouses (and domestic
partners and former domestic partners)\\
---------------------------------------------------------------------------
\\As amended by bill section 323.
---------------------------------------------------------------------------
(a)(1)(A) [A married employee or Member (or former employee
or Member)] An employee or Member, or former employee or former
member, who is married (or in a domestic partnership) may
withdraw all or part of a Thrift Savings Fund account under
subsection (b)(2), (3), or (4) of section 8433 of this title or
change a withdrawal election only if the employee or Member (or
former employee or Member) satisfies the requirements of
subparagraph (B). [A married employee or Member (or former
employee or Member)] An employee or Member, or former employee
or former member, who is married (or in a domestic partnership)
may make a withdrawal from a Thrift Savings Fund account under
subsection (c)(1) of section 8433 of this title only if the
employee or Member (or former employee or Member) satisfies the
requirements of subparagraph (B).
(B) An employee or Member (or former employee or Member)
may make an election or change referred to in subparagraph (A)
if the employee or Member and the employee's or Member's spouse
(or domestic partner) (or the former employee or Member and the
former employee's or Member's spouse (or domestic partner))
jointly waive, by written election, any right which the spouse
(or domestic partner) may have to a survivor annuity with
respect to such employee or Member (or former employee or
Member) under section 8434 of this title or subsection (b).
(2) Paragraph (1) shall not apply to an election or change
of election by an employee or Member (or former employee or
Member) who establishes to the satisfaction of the Executive
Director (at the time of the election or change and in
accordance with regulations prescribed by the Executive
Director)--
(A) that the spouse's (or domestic partner's)
whereabouts cannot be determined; or
(B) that, due to exceptional circumstances, requiring
the spouse's (or domestic partner's) waiver would
otherwise be inappropriate.
(b)(1) Notwithstanding any election under subsection (b) of
section 8434 of this title, the method described in subsection
(a)(2)(B) of such section (or, if more than one form of such
method is available, the form which the Board determines to be
the one which provides for a surviving spouse (or surviving
domestic partner) a survivor annuity most closely approximating
the annuity of a surviving spouse (or surviving domestic
partner) under section 8442 of this title) shall be deemed the
applicable method under such subsection (b) in the case of an
employee, Member, former employee, or former Member who is
married (or in a domestic partnership) on the date on which an
annuity contract is purchased to provide for the employee's,
Member's, former employee's, or former Member's annuity under
this subchapter.
(2) Paragraph (1) shall not apply if--
(A) a joint waiver of such method is made, in
writing, by the employee or Member and the spouse (or
domestic partner); or
* * * * * * *
(d)(1) Subject to paragraphs (2) through (7), a former
spouse (or former domestic partner) of a deceased employee or
Member (or a deceased former employee or Member) who died after
performing 18 or more months of service and a former spouse (or
former domestic partner) of a deceased former employee or
Member who died entitled to an immediate or deferred annuity
under subchapter II of this chapter is entitled to a survivor
annuity under this subsection if and to the extent that--
(A) * * *
* * * * * * *
(3) The amount of the survivor annuity payable from the
Thrift Savings Fund to a former spouse (or former domestic
partner) of a deceased employee, Member, former employee, or
former Member under this section may not exceed the excess, if
any, of--
(A) the amount of the survivor annuity determined for
a surviving spouse (or surviving domestic partner) of
the deceased employee, Member, former employee, or
former Member under the method described in subsection
(b)(1), over
(B) the total amount of all other survivor annuities
payable under this subchapter to other former spouses
(or former domestic partners) of such deceased
employee, Member, former employee, or former Member
based on the order of precedence provided in paragraph
(4).
(4) If more than one former spouse (or former domestic
partner) of a deceased employee, Member, former employee, or
former Member is entitled to a survivor annuity pursuant to
this subsection, the amount of each such survivor annuity shall
be limited appropriately to carry out paragraph (3) in the
order of precedence established for the entitlements by the
chronological order of the dates on which elections are
properly made pursuant to section 8434(a)(2)(E) of this title
and the dates on which the court decrees, orders, or agreements
applicable to the entitlement were issued, as the case may be.
(5) Subsections (c) and (d) of section 8445 of this title
shall apply to an entitlement of a former spouse (or former
domestic partner) to a survivor annuity under this subsection.
(6) For the purposes of this section, a court decree,
order, or agreement or an election referred to in subsection
(a) of this section shall not be effective, in the case of a
former spouse (or former domestic partner), to the extent that
the election is inconsistent with any joint waiver previously
executed with respect to such former spouse (or former domestic
partner) under subsection (a)(2) or (b)(2).
* * * * * * *
[(e)(1)(A) A loan or withdrawal may be made to a married
employee or Member under section 8433(g) and (h) of this title
only if the employee's or Member's spouse consents to such loan
or withdrawal in writing.]
(e)(1)(A) A loan or withdrawal under subsection (g) or (h)
of section 8433 may be made to an employee or Member who is
married (or in a domestic partnership) only if the employee's
or Member's spouse (or domestic partner) consents to such loan
or withdrawal in writing.
* * * * * * *
(C) Subparagraph (A) shall not apply to a loan or
withdrawal to an employee or Member who establishes to the
satisfaction of the Executive Director (at the time the
employee or Member applies for such loan or withdrawal and in
accordance with regulations prescribed by the Executive
Director)--
(i) that the spouse's (or domestic partner's)
whereabouts cannot be determined; or
(ii) that, due to exceptional circumstances,
requiring the employee or Member to seek the spouse's
(or domestic partner's) consent would otherwise be
inappropriate.
* * * * * * *
(g) Except with respect to the making of loans or
withdrawals under section 8433(g) and (h), none of the
provisions of this section requiring notification to, or the
consent or waiver of, a spouse or former spouse (or domestic
partner or former domestic partner) of an employee, Member,
former employee, or former Member shall apply in any case in
which the nonforfeitable account balance of the employee,
Member, former employee, or former Member is $3,500 or less.
* * * * * * *
Sec. 8440a. Justices and judges\*\
---------------------------------------------------------------------------
\*\As amended by bill section 324.
---------------------------------------------------------------------------
(a) * * *
(b)(1) * * *
* * * * * * *
(6) The provisions of section 8351(b)(5) of this title
shall govern the rights of spouses (or domestic partners) of
justices or judges contributing to the Thrift Savings Fund
under this section.
* * * * * * *
Subchapter IV--Survivor Annuities
Sec. 8441. Definitions\\
---------------------------------------------------------------------------
\\As amended by bill section 331.
---------------------------------------------------------------------------
For the purpose of this subchapter--
(1) * * *
* * * * * * *
(3) the term ``surviving partner''--
(A) means the surviving domestic partner of
an employee, Member, or annuitant, or of a
former employee or Member, who--
(i) was in a domestic partnership
with such employee, Member, or
annuitant, or former employee or
Member, for at least 9 months
immediately before the death of such
employee, Member, or annuitant, or
former employee or Member; or
(ii) satisfies such other
requirements, based on parenthood and
the domestic partnership, as the
Director of the Office of Personnel
Management shall by regulation
prescribe based on the definition of a
widow or widower under paragraphs
(1)(B) and (2)(B) of this section; and
(B) notwithstanding subparagraph (A),
includes a surviving domestic partner described
under that subparagraph only if the employee,
Member, annuitant, or former employee or Member
performed at least 18 months of service as a
Federal employee;
[(3)](4) the term ``dependent,'' in the case of any
child, means that the employee, Member, or annuitant
involved was, at the time of death of the employee,
Member, or annuitant either living with or contributing
to the support of such child, as determined in
accordance with such regulations as the Office shall
prescribe; and
[(4)](5) the term ``child'' means--
(A) [an unmarried dependent child] a
dependent child who is unmarried (and not in a
domestic partnership) under 18 years of age,
including (i) an adopted child, (ii) a
stepchild but only if the stepchild lived with
the employee, Member, or annuitant in a regular
parent-child relationship, (iii) a recognized
natural child, [and] (iv) a child who lived
with and for whom a petition of adoption was
filed by an employee, Member, or annuitant and
who is adopted by the widow or widower (or
surviving partner) of the employee, Member, or
annuitant after the death of such employee,
Member, or annuitant, and (v) a child of a
domestic partner of an employee, Member, or
annuitant (not adopted by the employee, Member,
or annuitant), but only if--
(I) the child lived with the
employee, Member, or annuitant
in a regular parent-child
relationship; and
(II) the employee, Member, or
annuitant performed at least 18
months of service as a Federal
employee;
(B) such [unmarried dependent child]
dependent child who is unmarried (and not in a
domestic partnership) regardless of age who is
incapable of self-support because of mental or
physical disability incurred before age 18; or
(C) such [unmarried dependent child]
dependent child who is unmarried (and not in a
domestic partnership) between 18 and 22 years
of age who is a student regularly pursuing a
full-time course of study or training in
residence in a high school, trade school,
technical or vocational institute, junior
college, college, university, or comparable
recognized educational institution.
* * * * * * *
Sec. 8442. Rights of a widow or widower (or surviving partner)\*\
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\*\As amended by bill section 332.
---------------------------------------------------------------------------
(a)(1) Except as provided in subsection (g), if an
annuitant dies and is survived by a widow or widower (or
surviving partner), the widow or widower (or surviving partner)
is entitled to an annuity equal to 50 percent of an annuity
computed under section 8415 with respect to the annuitant, (or
one-half thereof, if designated for this purpose under section
8419 of this title), unless--
(A) * * *
(B) in the case of a marriage (or entry into a
domestic partnership) after retirement, the annuitant
did not file an election under section 8416(b) or (c),
as the case may be.
(2) A spouse (or domestic partner) acquired after
retirement is entitled to an annuity under this subsection (as
provided in paragraph (1)) only upon electing this annuity
instead of any other survivor benefit to which such spouse (or
domestic partner) may be entitled under this subchapter or
section 8424 or under another retirement system for Government
employees.
(b)(1) If an employee or Member dies after completing at
least 18 months of civilian service creditable under section
8411 and is survived by a widow or widower (or surviving
partner), the widow or widower (or surviving partner) is
entitled to--
(A) * * *
* * * * * * *
(2) The Office shall prescribe regulations under which the
total amount payable to a widow or widower (or surviving
partner) under paragraph (1)(A) may, at the election of the
widow or widower (or surviving partner), be paid--
(A) * * *
* * * * * * *
(c)(1) If a former employee or Member dies after having
separated from the service with title to a deferred annuity
under section 8413 but before having established a valid claim
for an annuity, and is survived by a widow or widower to whom
married (or a surviving partner with whom in a domestic
partnership) on the date of separation, the [widow or widower]
widow or widower (or a surviving partner) may elect to
receive--
(A) * * *
(B) the lump-sum credit, if the [widow or widower]
widow or widower (or surviving partner) is the
individual who would be entitled to the lump-sum credit
and if such [widow or widower] widow or widower (or
surviving partner) files application therefor with the
Office.
(2)(A)(i) Subject to clause (ii) and subparagraph (B)(ii),
the annuity of the [widow or widower] widow or widower (or
surviving partner) is equal to 50 percent of an annuity
computed under section 8415 for the former employee or Member.
(ii)(I) In computing an amount under section 8415 for a
former employee or Member (described in subclause (II)) in
order to compute the annuity for a [widow or widower] widow or
widower (or surviving partner) under this subsection, the
computation under section 8415 shall be made as if the former
employee or Member had attained the applicable minimum
retirement age under section 8412(h).
* * * * * * *
(B)(i) Notwithstanding the first sentence of subsection
(d)(1), the annuity of the [widow or widower] widow or widower
(or surviving partner) of a former employee or Member under
subparagraph (A)(ii) commences--
(I) * * *
(II) if the [widow or widower] widow or widower (or
surviving partner) so designates in the election, as of
the day after the death of the former employee or
Member.
(ii) The present value of the annuity of a [widow or
widower] widow or widower (or surviving partner) who chooses
the earlier commencement date under clause (i)(II) shall be
actuarially equivalent to the present value of an annuity
computed for the [widow or widower] widow or widower (or
surviving partner), determined as if the commencement date
under clause (i)(I) were applicable.
(3)(A) * * *
(B) Nothing in this subsection shall be considered to
affect the provisions of this chapter relating to a lump-sum
credit in the case of the [widow or widower] widow or widower
(or surviving partner) of a former employee or Member who dies
after completing less than 10 years of service.
(d)(1) The annuity of a [widow or widower] widow or widower
(or surviving partner) under this section commences on the day
after the death of the individual on whose service such annuity
is based. This annuity and the right thereto terminate on the
last day of the month before the [widow or widower] widow or
widower (or surviving partner)--
(A) * * *
(B) except as provided in paragraph (3), remarries
(or, in the case of a widow or widower, enters into a
domestic partnership) (or, in the case of a surviving
partner, enters into a subsequent domestic partnership
or marries) before becoming 55 years of age.
(2) In the case of a [widow or widower] widow or widower
(or surviving partner) whose annuity under this section is
terminated because of [remarriage before] subsequent entry into
a marriage (or domestic partnership) before becoming 55 years
of age, the annuity shall be restored at the same rate
commencing on the day the [remarriage is dissolved by death,
divorce, or annulment,] subsequently entered marriage is
dissolved by death, divorce, annulment (or subsequently entered
domestic partnership is terminated), if--
(A) the [widow or widower] widow or widower (or
surviving partner) elects to receive this annuity
instead of any other survivor benefit to which such
[widow or widower] widow or widower (or surviving
partner) may be entitled (under this subchapter or
section 8424 or under another retirement system for
Government employees) by reason of the [remarriage;]
subsequently entered marriage (or domestic
partnership); and
* * * * * * *
(3) Paragraph (1)(B) (relating to termination of a survivor
annuity because of a [remarriage] subsequent entry into a
marriage (or domestic partnership) before age 55) shall not
apply if the [widow or widower] widow or widower (or surviving
partner) was married for at least 30 years to (or in a domestic
partnership for at least 30 years with) the individual on whose
service the survivor annuity is based.
(e) The requirement in paragraphs (1)(A) and (2)(A) of
section 8441 that the widow or widower (or surviving partner)
of an annuitant, employee, or Member, or of a former employee
or Member, have been married to (or in a domestic partnership
with) such individual for at least 9 months immediately before
the death of the individual in order to qualify as the widow or
widower (or surviving partner) of such individual shall be
deemed satisfied in any case in which the individual dies
within the applicable 9-month period, if--
(1) * * *
[(2) the surviving spouse of the individual had been
previously married to such individual and subsequently
divorced, and the aggregate time married is at least 9
months.]
(2) the surviving spouse (or surviving domestic
partner) of such individual had been previously married
to (or in a domestic partnership with) the individual
that was subsequently dissolved (or terminated), and
the aggregate time married (or in a domestic
partnership) is at least 9 months.
* * * * * * *
(g)(1) If the [widow or widower] widow, widower, or
surviving partner of an annuitant under section 8452
(hereinafter in this subsection referred to as a ``disability
annuitant'') is determined under subsection (a) to be entitled
to an annuity based on the service of such disability
annuitant, the annuity of the [widow or widower] widow,
widower, or surviving partner shall be equal to 50 percent of
the amount determined under paragraph (2) (or one-half thereof
if designated for this purpose under section 8419 of this
title), rather than of the amount referred to in subsection
(a).
(2)(A) Except as provided in subparagraph (B), the amount
on which the annuity of the [widow or widower] widow, widower,
or surviving partner of a disability annuitant is based shall
be the amount of the annuity to which such disability annuitant
was entitled, as computed under section 8452 (including
appropriate reduction under subsection (a)(2) of such section
and any adjustments under section 8462 allowed under section
8452), as of the day before the date of the disability
annuitant's death.
(B)(i) In the case of a [widow or widower] widow, widower,
or surviving partner entitled to an annuity based on the
service of a disability annuitant who dies before age 62, the
amount under clause (ii) shall apply instead of the amount
which would otherwise apply under subparagraph (A).
* * * * * * *
(h) The following rules shall apply notwithstanding any
other provision of this section:
(1) The annuity payable under this section to a
[widow or widower] widow or widower (or surviving
partner) may not exceed the difference between--
(A) the amount of the annuity which would
otherwise be payable to such [widow or widower]
widow or widower (or surviving partner) under
this section; and
(B) the amount of the annuity payable to any
former spouse(or former domestic partner) of
the deceased employee, Member, or annuitant, or
former employee or Member, based on an election
made under section 8417(b) or a court order
previously issued or agreement previously
entered into as described in section 8445(a).
(2) The amount payable under subsection (b)(1)(A) to
a [widow or widower] widow or widower (or surviving
partner) may not exceed the difference between--
(A) the amount which would otherwise be
payable to such [widow or widower] widow or
widower (or surviving partner) under such
subsection; and
(B) the portion of such amount payable to any
former spouse (or former domestic partner) of
the deceased employee, Member, or annuitant, or
former employee or Member, based on a court
order previously issued or agreement previously
entered into.
Sec. 8443. Rights of a child\*\
---------------------------------------------------------------------------
\*\As amended by bill section 333.
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(b) The annuity of a child under this subchapter--
(1) * * *
* * * * * * *
This annuity and the right thereto terminate on the last day of
the month before the child--
(A) * * *
* * * * * * *
[(E) dies or marries;
whichever occurs first. On the death of the surviving wife or
husband, or former wife or husband, or termination of the
annuity of a child, the annuity of any other child or children
shall be recomputed and paid as though the wife or husband,
former wife or husband, or child had not survived the
annuitant, employee, or Member. If the annuity of a child under
this subchapter terminates under subparagraph (E) because of
marriage, then, if such marriage ends, such annuity shall
resume on the first day of the month in which it ends, but only
if any lump sum paid is returned to the Fund, and that
individual is not otherwise ineligible for such annuity.]
(E) dies or marries (or enters into a
domestic partnership);
whichever occurs first. On the death of the surviving wife or
husband (or surviving domestic partner), or former wife or
husband (or former domestic partner), or termination of the
annuity of a child, the annuity of any other child or children
shall be recomputed and paid as though the wife or husband (or
domestic partner), former wife or husband (or former domestic
partner), or child had not survived the annuitant, employee, or
Member. If the annuity of a child under this subchapter
terminates under subparagraph (E) because of marriage (or
domestic partnership), then, if such marriage (or domestic
partnership) ends, such annuity shall resume on the first day
of the month in which it ends, but only if any lump sum paid is
returned to the Fund, and that individual is not otherwise
ineligible for such annuity.
* * * * * * *
Sec. 8445. Rights of a former spouse (or former domestic partner)\*\
---------------------------------------------------------------------------
\*\As amended by bill section 334.
---------------------------------------------------------------------------
(a) Subject to subsections (b) through (e), a former spouse
(or former domestic partner) of a deceased employee, Member, or
annuitant (or of a former employee or Member who dies after
having separated from the service with title to a deferred
annuity under section 8413 but before having established a
valid claim for annuity) is entitled to an annuity under this
section, if and to the extent expressly provided for in an
election under section 8417(b), or, in the case of a former
spouse, in the terms of any decree of divorce or annulment or
any court order or court-approved property settlement agreement
incident to such decree.
(b)(1) The annuity payable to a former spouse (or former
domestic partner) under this section may not exceed the
difference between--
(A) the amount applicable in the case of such former
spouse (or former domestic partner), as determined
under paragraph (2); and
(B) the amount of any annuity payable under this
section to any other former spouse (or former domestic
partner) of the employee, Member, or annuitant, or
former employee or Member, based on an election
previously made under section 8417(b), or a court order
previously issued or agreement previously entered into
as described in subsection (a).
(2) The applicable amount, for purposes of paragraph (1)(A)
in the case of a former spouse (or former domestic partner), is
the amount of the annuity which would be payable under the
provisions of section 8442 (including subsection (f) of such
section, but without regard to subsection (h) of such section)
if such former spouse (or former domestic partner) were a widow
or widower (or surviving partner) entitled to an annuity under
such provisions based on the service of the deceased employee,
Member, or annuitant, or former employee or Member.
(c) The commencement and termination of an annuity payable
under this section shall be governed by the terms of the
applicable order, decree, agreement, or election, as the case
may be, except that any such annuity--
(1) * * *
(2) except as provided in subsection (h), shall
terminate no later than the last day of the month
before the former spouse remarries (or enters into a
domestic partnership) (or the former domestic partner
enters into a subsequent domestic partnership or
marries) before becoming 55 years of age or dies.
* * * * * * *
(e) For purposes of this chapter, a decree, order,
agreement, or election referred to in subsection (a) shall not
be effective, in the case of a former spouse (or former
domestic partner), to the extent that it is inconsistent with
any joint waiver previously executed with respect to such
former spouse (or former domestic partner) under section
8416(a).
* * * * * * *
[(h)(1) Subsection (c)(2) (to the extent that it provides
for termination of a survivor annuity because of a remarriage
before age 55) shall not apply if the former spouse was married
for at least 30 years to the individual on whose service the
survivor annuity is based.
[(2) A remarriage described in paragraph (1) shall not be
taken into account for purposes of section 8419(b)(1)(B) or any
other provision of this chapter which the Office may by
regulation identify in order to carry out the purposes of this
subsection.]
(h)(1) Subsection (c)(2), to the extent that it provides
for termination of a survivor annuity because of a subsequent
entry into a marriage (or domestic partnership) before age 55,
shall not apply if the former spouse (or former domestic
partner) was married to (or in a domestic partnership with) the
individual on whose service the survivor annuity is based for
at least 30 years.
(2) A subsequent entry into a marriage (or domestic
partnership) described in paragraph (1) shall not be taken into
account for purposes of section 8419(b)(1)(B) or any other
provision of this chapter which the Director may by regulation
identify in order to carry out the purposes of this subsection.
* * * * * * *
Subchapter VI--General and Administrative Provisions
Sec. 8461. Authority of the Office of Personnel Management\*\
---------------------------------------------------------------------------
\*\As amended by bill Sec. 341.
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(j)(1) Notwithstanding any other provision of this chapter,
the Director of Central Intelligence shall, in a manner
consistent with the administration of this chapter by the
Office, and to the extent considered appropriate by the
Director of Central Intelligence--
(A) * * *
* * * * * * *
(D) collect deposits to the Fund made by [such
employees, their spouses, their former spouses, and
their survivors] such employees and their spouses (and
domestic partners), former spouses (and former domestic
partners), and survivors;
* * * * * * *
Sec. 8462. Cost-of-living adjustments
---------------------------------------------------------------------------
\\As amended by bill Sec. 342.
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(c) Eligibility for an annuity increase under this section
is governed by the commencing date of each annuity payable from
the Fund as of the effective date of an increase, except as
follows:
(1) * * *
(2) Effective from its commencing date, an annuity
payable from the Fund to an annuitant's [survivor
(other than a widow or widower whose annuity is
computed under section 8442(g) or a child under section
8443)] survivor, other than a widow or widower (or
surviving partner) whose annuity is computed under
section 8442(g) or a child under section 8443, shall be
increased by the total percentage by which the deceased
annuitant's annuity had been increased under this
section during the period beginning on the date the
deceased annuitant's annuity commenced and ending on
the date of the deceased annuitant's death.
* * * * * * *
(4) The first increase (if any) made under subsection
(b) to an annuity which is payable from the Fund to a
widow or widower (or surviving partner) whose annuity
is computed under section 8442(g) shall be equal to the
product (adjusted to the nearest one-tenth of 1
percent) of--
(A) * * *
(B) the number of months (not to exceed 12
months, counting any portion of a month as a
month) since--
(i) the effective date of the
adjustment last made under this section
in the annuity of the annuitant on
whose service on the widow's or
widower's (or surviving partner's)
annuity is based; or
* * * * * * *
Subchapter VII--Federal Retirement Thrift Investment Management System
* * * * * * *
Sec. 8477. Fiduciary responsibilities; liability and penalties\*\
---------------------------------------------------------------------------
\*\As amended by bill section 351.
---------------------------------------------------------------------------
(a) For the purposes of this section--
(1) * * *
* * * * * * *
(4) the term ``party in interest'' includes--
(A) * * *
* * * * * * *
[(F) a spouse, sibling, ancestor, lineal
descendant, or spouse of a lineal descendant of
a person described in subparagraph (A), (B), or
(D);]
(F) a spouse (or domestic partner), sibling,
ancestor, lineal descendant, or spouse (or
domestic partner) of a lineal descendant of a
person described in subparagraph (A), (B), or
(D);
* * * * * * *
CHAPTER 87--LIFE INSURANCE
Sec. 8701. Definitions\*\
---------------------------------------------------------------------------
\*\As amended by bill section 401(a)(1).
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(d)(1) For the purpose of this chapter, ``family member'',
when used with respect to any individual, means--
(A) the spouse (or domestic partner) of the
individual; and
(B) an unmarried dependent child of the individual
(other than a stillborn child), including an adopted
child, stepchild (or child of the individual's domestic
partner) or foster child (but only if the stepchild (or
child of the individual's domestic partner) or foster
child lived with the individual in a regular parent-
child relationship), or recognized natural child--
(i) * * *
* * * * * * *
(3) For the purpose of this subsection, ``domestic
partner'' has the meaning given under section 2501.
* * * * * * *
Sec. 8705. Death claims; order of precedence;
escheat
---------------------------------------------------------------------------
\\As amended by bill section 401(a)(2).
---------------------------------------------------------------------------
(a) Except as provided in subsection (e), the amount of
group life insurance and group accidental death insurance in
force on an employee at the date of his death shall be paid, on
the establishment of a valid claim, to the person or persons
surviving at the date of his death, in the following order of
precedence:
First, to the beneficiary or beneficiaries designated by
the employee in a signed and witnessed writing received before
death in the employing office or, if insured because of receipt
of annuity or of benefits under subchapter I of chapter 81 of
this title as provided by section 8706(b) of this title, in the
Office of Personnel Management. For this purpose, a
designation, change, or cancellation of beneficiary in a will
or other document not so executed and filed has no force or
effect.
Second, if there is no designated beneficiary, to the widow
or widower (or surviving domestic partner) of the employee.
Third, if none of the above, to the child or children of
the employee and descendants of deceased children by
representation.
Fourth, if none of the above, to the parents of the
employee or the survivor of them.
Fifth, if none of the above, to the duly appointed executor
or administrator of the estate of the employee.
Sixth, if none of the above, to other next of kin of the
employee entitled under the laws of the domicile of the
employee at the date of his death.
* * * * * * *
Sec. 8714c. Optional life insurance on family members\*\
---------------------------------------------------------------------------
\*\As amended by bill section 401(a)(3).
---------------------------------------------------------------------------
(a) * * *
(b)(1) The optional life insurance on family members
provided under this section shall be made available to each
eligible employee who has elected coverage under this section,
under conditions the Office shall prescribe, in multiples, at
the employee's election, of 1, 2, 3, 4, or 5 times--
(A) $5,000 for a [spouse;] spouse (or domestic
partner); and
* * * * * * *
CHAPTER 89--HEALTH INSURANCE
* * * * * * *
Sec. 8901. Definitions
---------------------------------------------------------------------------
\\As amended by bill section 402(a).
---------------------------------------------------------------------------
For the purpose of this chapter--
(1) * * *
* * * * * * *
(5) ``member of family'' means the spouse of an
employee or annuitant (or the domestic partner of a
Federal employee or of a Federal annuitant) and an
unmarried dependent child under 22 years of age,
including--
(A) an adopted child or recognized natural
child; [and]
(B) a stepchild or foster child but only if
the child lives with the employee or annuitant
in a regular parent-child relationship; and
(C) a child of the domestic partner of a
Federal employee or of a Federal annuitant,
unless adopted by such individual, but only if
the child lives with the Federal employee or
Federal annuitant in a regular parent-child
relationship;
* * * * * * *
(8) ``employee organization'' means--
(A) * * *
(B) an association or other organization
which is national in scope, in which membership
is open only to employees, annuitants, [or
former spouses,] former spouses (or former
domestic partners), or any combination thereof,
and which, during the 90-day period beginning
on the date of enactment of section 8903a of
this title, applied to the Office for approval
of a plan provided under such section;
* * * * * * *
(10) ``former spouse'' means a former spouse of an
employee, former employee, or annuitant--
(A) who has not remarried (or entered into a
domestic partnership) before age 55 after the
marriage to the employee, former employee, or
annuitant was dissolved,
* * * * * * *
except that such term shall not include any such unremarried
former spouse of a former employee whose marriage was dissolved
after the former employee's separation from the service (other
than by retirement); [and]
(11) ``former domestic partner'' means a domestic
partner--
(A) whose domestic partnership with an
employee, former employee, or Federal annuitant
has terminated,
(B) who has not entered into another domestic
partnership (or married) before age 55 after
the domestic partnership to the employee,
former employee, or annuitant was terminated,
(C) who was enrolled in an approved health
benefits plan under this chapter as a family
member at any time during the 18-month period
before the date of the termination of the
domestic partnership to the employee, former
employee, or annuitant, and
(D)(i) who is receiving any portion of a
survivor annuity under section 8341(h) or 8445
(or benefits similar to either of the
aforementioned annuity benefits under a
retirement system for Government employees
other than the Civil Service Retirement System
or the Federal Employees' Retirement System),
(ii) for whom an election has been made under
section 8339(j)(3) or 8417(b) (or similar
provision of law), or
(iii) who is otherwise entitled to an annuity
or any portion of an annuity as a former
domestic partner under a retirement system for
Government employees,
except that such term shall not include any such former
domestic partner (who has not entered into another domestic
partnership) of a former employee whose domestic partnership
was terminated after the former employee's separation from the
service (other than by retirement);
[(11)](12) ``qualified clinical social worker'' means
an individual--
(A) * * *
(B) who, if such State does not provide for
the licensing or certification of clinical
social workers--
(i) * * *
(ii) meets equivalent requirements
(as prescribed by the Office)[.]; and
(13) ``domestic partner'' and ``domestic
partnership'' have the meanings given under section
2501;
(14) ``Federal employee'' means an elected official
of the United States or an employee of any entity of
the United States; and
(15) ``Federal annuitant'' means an annuitant whose
service consists of at least 18 months as a Federal
employee.
* * * * * * *
Sec. 8902. Contracting authority\*\
---------------------------------------------------------------------------
\*\As amended by bill section 402(b).
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(g) A contract may not be made or a plan approved which
does not offer to each employee, annuitant, family member,
[former spouse,] former spouse (or former domestic partner), or
person having continued coverage under section 8905a of this
title whose enrollment in the plan is ended, except by a
cancellation of enrollment, a temporary extension of coverage
during which he may exercise the option to convert, without
evidence of good health, to a nongroup contract providing
health benefits. An employee, annuitant, family member, [former
spouse,] former spouse (or former domestic partner), or person
having continued coverage under section 8905a of this title who
exercises this option shall pay the full periodic charges of
the nongroup contract.
* * * * * * *
(j) Each contract under this chapter shall require the
carrier to agree to pay for or provide a health service or
supply in an individual case if the Office finds that the
employee, annuitant, family member, [former spouse,] former
spouse (or former domestic partner), or person having continued
coverage under section 8905a of this title is entitled thereto
under the terms of the contract.
(k)(1) When a contract under this chapter requires payment
or reimbursement for services which may be performed by a
clinical psychologist, optometrist, nurse midwife, nursing
school administered clinic, or nurse practitioner/clinical
specialist, licensed or certified as such under Federal or
State law, as applicable, or by a qualified clinical social
worker as defined in section 8901(11), an employee, annuitant,
family member, [former spouse,] former spouse (or former
domestic partner), or person having continued coverage under
section 8905a of this title covered by the contract shall be
free to select, and shall have direct access to, such a
clinical psychologist, qualified clinical social worker,
optometrist, nurse midwife, nursing school administered clinic,
or nurse practitioner/nurse clinical specialist without
supervision or referral by another health practitioner and
shall be entitled under the contract to have payment or
reimbursement made to him or on his behalf for the services
performed.
* * * * * * *
Sec. 8902a. Debarment and other sanctions
---------------------------------------------------------------------------
\\As amended by bill section 402(c).
---------------------------------------------------------------------------
(a)(1) For the purpose of this section--
(A) * * *
(B) the term ``individual covered under this
chapter'' or ``covered individual'' means an employee,
annuitant, family member, or former spouse (or former
domestic partner) covered by a health benefits plan
described by section 8903 or 8903a;
* * * * * * *
Sec. 8903. Health benefits plans\*\
---------------------------------------------------------------------------
\*\As amended by bill section 402(d).
---------------------------------------------------------------------------
The Office of Personnel Management may contract for or
approve the following health benefits plans:
(1) Service benefit plan.--One Government-wide plan,
which may be underwritten by participating affiliates
licensed in any number of States, offering two levels
of benefits, under which payment is made by a carrier
under contracts with physicians, hospitals, or other
providers of health services for benefits of the types
described by section 8904(1) of this title given to
employees, annuitants, members of their families,
[former spouses,] former spouses (or former domestic
partners), or persons having continued coverage under
section 8905a of this title, or, under certain
conditions, payment is made by a carrier to the
employee, annuitant, family member, [former spouse,]
former spouse (or former domestic partner), or person
having continued coverage under section 8905a of this
title.
* * * * * * *
Sec. 8905. Election of coverage
---------------------------------------------------------------------------
\\As amended by bill section 402(e).
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(c)(1) * * *
* * * * * * *
(3) The Office shall prescribe regulations to ensure that,
in the administration of this subsection, parity of treatment
is afforded--
(A) to former spouses and former domestic partners;
and
(B) to the children of a marriage that has been
dissolved and the children of a domestic partnership
that has been terminated.
* * * * * * *
(e) If an employee, annuitant, or other individual eligible
to enroll in a health benefits plan under this chapter has a
spouse (or domestic partner) who is also eligible to enroll,
[either spouse,] either spouse (or either domestic partner, as
the case may be), but not both, may enroll for self and family,
or each spouse may enroll as an individual. However, an
individual may not be enrolled both as an employee, annuitant,
or other individual eligible to enroll and as a member of the
family.
(f) An employee, annuitant, [former spouse,] former spouse
(or former domestic partner), or person having continued
coverage under section 8905a of this title enrolled in a health
benefits plan under this chapter may change his coverage or
that of himself and members of his family by an application
filed within 60 days after a change in family status or at
other times and under conditions prescribed by regulations of
the Office.
(g)(1) Under regulations prescribed by the Office, the
Office shall, before the start of any contract term in which--
* * * * * * *
provide a period of not less than 3 weeks during which any
employee, annuitant, [former spouse,] former spouse (or former
domestic partner), or person having continued coverage under
section 8905a of this title enrolled in a health benefits plan
described by such section shall be permitted to transfer that
individual's enrollment to another such plan or to cancel such
enrollment.
(2) In addition to any opportunity afforded under paragraph
(1) of this subsection, an employee, annuitant, [former
spouse,] former spouse (or former domestic partner), or person
having continued coverage under section 8905a of this title
enrolled in a health benefits plan under this chapter shall be
permitted to transfer that individual's enrollment to another
such plan, or to cancel such enrollment, at such other times
and subject to such conditions as the Office may prescribe in
regulations.
* * * * * * *
Sec. 8905a. Continued coverage\*\
---------------------------------------------------------------------------
\*\As amended by bill section 402(f).
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(g) The Office shall prescribe regulations to ensure that,
in the administration of this section, parity of treatment is
afforded--
(1) to former spouses and former domestic partners;
and
(2) to the children of a marriage that has been
dissolved and the children of a domestic partnership
that has been terminated.
* * * * * * *
Sec. 8908. Coverage of restored employees and survivor or disability
annuitants\*\
---------------------------------------------------------------------------
\*\As amended by bill section 402(g).
---------------------------------------------------------------------------
(a) * * *
(b) A surviving spouse whose survivor annuity under this
title was terminated because of [remarriage and is later
restored] having entered into a subsequent marriage (or
domestic partnership) and is later restored (or a surviving
domestic partner whose survivor annuity under this title was
terminated because of having entered into a subsequent domestic
partnership or a marriage and is later restored) may, under
such regulations as the Office of Personnel Management may
prescribe, enroll in a health benefits plan described by
section 8903 or 8903a of this title if such spouse was covered
by any such plan immediately before such annuity was
terminated.
* * * * * * *
Sec. 8909. Employees Health Benefits Fund
---------------------------------------------------------------------------
\\As amended by bill section 402(h).
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(d) When the assets, liabilities, and membership of
employee organizations sponsoring or underwriting plans
approved under section 8903(3) or 8903a of this title are
merged, the assets (including contingency reserves) and
liabilities of the plans sponsored or underwritten by the
merged organizations shall be transferred at the beginning of
the contract term next following the date of the merger to the
plan sponsored or underwritten by the successor organization.
Each employee, annuitant, [former spouse,] former spouse (or
former domestic partner), or person having continued coverage
under section 8905a of this title affected by a merger shall be
transferred to the plan sponsored or underwritten by the
successor organization unless he enrolls in another plan under
this chapter. If the successor organization is an organization
described in section 8901(8)(B) of this title, any employee,
annuitant, [former spouse,] former spouse (or former domestic
partner), or person having continued coverage under section
8905a of this title so transferred may not remain enrolled in
the plan after the end of the contract term in which the merger
occurs unless that individual is a full member of such
organization (as determined under section 8903a(d) of this
title).
* * * * * * *
Sec. 8913. Regulations=
---------------------------------------------------------------------------
\=\As amended by bill section 402(i).
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(c) The regulations of the Office shall provide for the
beginning and ending dates of coverage of employees,
annuitants, members of their families, and former spouses (and
former domestic partners) under health benefit plans. The
regulations may permit the coverage to continue, exclusive of
the temporary extension of coverage described by section
8902(g) of this title, until the end of the pay period in which
an employee is separated from the service, or until the end of
the month in which an annuitant or former spouse (or former
domestic partner) ceases to be entitled to annuity, and in case
of the death of an employee or annuitant, may permit a
temporary extension of the coverage of members of his family
for not to exceed 90 days.
* * * * * * *
CHAPTER 89A--ENHANCED DENTAL BENEFITS
* * * * * * *
Sec. 8956. Election of coverage\*\
---------------------------------------------------------------------------
\*\As amended by bill section 403(a)(1).
---------------------------------------------------------------------------
(a) An eligible individual may enroll in a dental benefits
plan for self-only, self plus one, or for self and family. If
an eligible individual has a spouse or domestic partner who is
also eligible to enroll, [either spouse,] either spouse (or
either domestic partner, as the case may be), but not both, may
enroll for self plus one or self and family. An individual may
not be enrolled both as an employee, annuitant, or other
individual eligible to enroll and as a member of the family.
* * * * * * *
Sec. 8957. Coverage of restored survivor or disability
annuitants
---------------------------------------------------------------------------
\\As amended by bill section 403(a)(2).
---------------------------------------------------------------------------
A [surviving spouse,] surviving spouse (or surviving
domestic partner), disability annuitant, or surviving child
whose annuity is terminated and is later restored, may continue
enrollment in a dental benefits plan subject to the terms and
conditions prescribed in regulations issued by the Office.
* * * * * * *
CHAPTER 89B--ENHANCED VISION BENEFITS
* * * * * * *
Sec. 8986. Election of coverage=
---------------------------------------------------------------------------
\=\As amended by bill section 404(a)(1).
---------------------------------------------------------------------------
(a) An eligible individual may enroll in a vision benefits
plan for self-only, self plus one, or for self and family. If
an eligible individual has a spouse (or domestic partner) who
is also eligible to enroll, [either spouse,] either spouse (or
either domestic partner, as the case may be), but not both, may
enroll for self plus one or self and family. An individual may
not be enrolled both as an employee, annuitant, or other
individual eligible to enroll and as a member of the family.
* * * * * * *
Sec. 8987. Coverage of restored survivor or disability
annuitants*
---------------------------------------------------------------------------
\*\As amended by bill section 404(a)(2).
---------------------------------------------------------------------------
A [surviving spouse,] surviving spouse (or surviving
domestic partner), disability annuitant, or surviving child
whose annuity is terminated and is later restored, may continue
enrollment in a vision benefits plan subject to the terms and
conditions prescribed in regulations issued by the Office.
* * * * * * *
CHAPTER 90--LONG-TERM CARE INSURANCE
* * * * * * *
Sec. 9001. Definitions
---------------------------------------------------------------------------
\\As amended by bill section 405(a)(1).
---------------------------------------------------------------------------
For purposes of this chapter:
(1) * * *
* * * * * * *
(5) Qualified relative.--The term ``qualified
relative'' means each of the following:
(A) * * *
* * * * * * *
(D)(i) a domestic partner (as that term is
defined in section 2501) of a Federal employee
(as that term is defined in section 8901), of
an individual described in subparagraph (B),
(C), or (D) of paragraph (1), or of an
annuitant whose service (as that term is
defined in section 8901) consists of at least
18 months as a Federal employee;
(ii) a child of a domestic partner referred
to in clause (i), if such child is at least 18
years of age; and
(iii) a parent of a domestic partner referred
to in clause (i).
[(D)] (E) An individual having such other
relationship to an individual described in
paragraph (1), (2), (3), or (4) as the Office
may by regulation prescribe.
* * * * * * *
Sec. 9002. Availability of insurance*
---------------------------------------------------------------------------
\*\As amended by bill section 405(a)(2).
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(e) Underwriting Standards.--
(1) * * *
(2) [Spousal parity] Parity for spouse (or domestic
partner)._For the purpose of underwriting standards, a
spouse (or domestic partner) of an individual described
in paragraph (1), (2), (3), or (4) of section 9001
shall, as nearly as practicable, be treated like that
individual.
* * * * * * *
TITLE 5--APPENDIX
* * * * * * *
ETHICS IN GOVERNMENT ACT OF 1978
* * * * * * *
TITLE I--FINANCIAL DISCLOSURE REQUIREMENTS OF FEDERAL PERSONNEL
Sec. 101. Persons required to file
---------------------------------------------------------------------------
\\As amended by bill section 801(b)(2)(A)(i).
---------------------------------------------------------------------------
(a) * * *
* * * * * * *
(f) The officers and employees referred to in subsections
(a), (d), and (e) are--
(1) * * *
* * * * * * *
(9) a Member of Congress as defined under [section
109(12)] section 109(13);
(10) an officer or employee of the Congress as
defined under [section 109(13)] section 109(14);
(11) a judicial officer as defined under [section
109(10)] section 109(11); and
(12) a judicial employee as defined under [section
109(8)] section 109(9).
* * * * * * *
Sec. 102. Contents of reports\*\
---------------------------------------------------------------------------
\*\As amended by bill section 801(a).
---------------------------------------------------------------------------
(a) Each report filed pursuant to section 101(d) and (e)
shall include a full and complete statement with respect to the
following:
(1) * * *
(2)(A) The identity of the source, a brief
description, and the value of all gifts aggregating
more than the minimal value as established by section
7342(a)(5) of title 5, United States Code, or $250,
whichever is greater, received from any source other
than a relative (or the domestic partner or a parent,
child, or sibling of the domestic partner) of the
reporting individual during the preceding calendar
year, except that any food, lodging, or entertainment
received as personal hospitality of an individual need
not be reported, and any gift with a fair market value
of $100 or less, as adjusted at the same time and by
the same percentage as the minimal value is adjusted,
need not be aggregated for purposes of this
subparagraph.
* * * * * * *
(3) The identity and category of value of any
interest in property held during the preceding calendar
year in a trade or business, or for investment or the
production of income, which has a fair market value
which exceeds $1,000 as of the close of the preceding
calendar year, excluding any personal liability owed to
the reporting individual by a [spouse, or by a parent,
brother, sister, or child of the reporting individual
or of the reporting individual's spouse,] spouse (or
domestic partner), or by a parent, brother, sister, or
child of the reporting individual or of the reporting
individual's spouse (or of the reporting individual's
domestic partner), or any deposits aggregating $5,000
or less in a personal savings account. For purposes of
this paragraph, a personal savings account shall
include any certificate of deposit or any other form of
deposit in a bank, savings and loan association, credit
union, or similar financial institution.
(4) The identity and category of value of the total
liabilities owed to any creditor other than a [spouse,
or a parent, brother, sister, or child of the reporting
individual or of the reporting individual's spouse]
spouse (or domestic partner), or a parent, brother,
sister, or child of the reporting individual or of the
reporting individual's spouse (or of the reporting
individual's domestic partner), which exceed $10,000 at
any time during the preceding calendar year,
excluding--
(A) any mortgage secured by real property
which is a personal residence of the reporting
individual or his spouse (or domestic partner);
and
* * * * * * *
(5) Except as provided in this paragraph, a brief
description, the date, and category of value of any
purchase, sale or exchange during the preceding
calendar year which exceeds $1,000--
(A) in real property, other than property
used solely as a personal residence of the
reporting individual or his spouse (or domestic
partner); or
* * * * * * *
Reporting is not required under this paragraph of any
transaction solely by and between the reporting individual, his
spouse (or domestic partner), or dependent children.
* * * * * * *
(e)(1) Except as provided in the last sentence of this
paragraph, each report required by section 101 shall also
contain information listed in paragraphs (1) through (5) of
subsection (a) of this section respecting the spouse (or
domestic partner) or dependent child of the reporting
individual as follows:
(A) The source of items of earned income earned by a
spouse (or domestic partner) from any person which
exceed $1,000 and the source and amount of any
honoraria received by a spouse (or domestic partner),
except that, with respect to earned income (other than
honoraria), if the spouse (or domestic partner) is
self-employed in business or a profession, only the
nature of such business or profession need be reported.
(B) All information required to be reported in
subsection (a)(1)(B) with respect to income derived by
a spouse (or domestic partner) or dependent child from
any asset held by the spouse (or domestic partner) or
dependent child and reported pursuant to subsection
(a)(3).
(C) In the case of any gifts received by a spouse (or
domestic partner) or dependent child which are not
received totally independent of the relationship of the
spouse (or domestic partner) or dependent child to the
reporting individual, the identity of the source and a
brief description of gifts of transportation, lodging,
food, or entertainment and a brief description and the
value of other gifts.
(D) In the case of any reimbursements received by a
spouse (or domestic partner) or dependent child which
are not received totally independent of the
relationship of the spouse (or domestic partner) or
dependent child to the reporting individual, the
identity of the source and a brief description of each
such reimbursement.
(E) In the case of items described in paragraphs (3)
through (5) of subsection (a), all information required
to be reported under these paragraphs other than items
(i) which the reporting individual certifies represent
the spouse's (or domestic partner's) or dependent
child's sole financial interest or responsibility and
which the reporting individual has no knowledge of,
(ii) which are not in any way, past or present, derived
from the income, assets, or activities of the reporting
individual, and (iii) from which the reporting
individual neither derives, nor expects to derive, any
financial or economic benefit.
(F) For purposes of this section, categories with
amounts or values greater than $1,000,000 set forth in
sections 102(a)(1)(B) and 102(d)(1) shall apply to the
income, assets, or liabilities of spouses (and domestic
partners) and dependent children only if the income,
assets, or liabilities are held jointly with the
reporting individual. All other income, assets, or
liabilities of the spouse (or domestic partner) or
dependent children required to be reported under this
section in an amount or value greater than $1,000,000
shall be categorized only as an amount or value greater
than $1,000,000.
Reports required by subsections (a), (b), and (c) of section
101 shall, with respect to the spouse (or domestic partner) and
dependent child of the reporting individual, only contain
information listed in paragraphs (1), (3), and (4) of
subsection (a), as specified in this paragraph.
(2) No report shall be required with respect to a spouse
living separate and apart from the reporting individual with
the intention of terminating the marriage or providing for
permanent separation; or with respect to any income or
obligations of an individual arising from the dissolution of
his marriage or the permanent separation from his spouse (or
the termination of the reporting individual's domestic
partnership).
(f)(1) Except as provided in paragraph (2), each reporting
individual shall report the information required to be reported
pursuant to subsections (a), (b), and (c) of this section with
respect to the holdings of and the income from a trust or other
financial arrangement from which income is received by, or with
respect to which a beneficial interest in principal or income
is held by, such individual, his spouse (or domestic partner),
or any dependent child.
(2) A reporting individual need not report the holdings of
or the source of income from any of the holdings of--
(A) * * *
(B) a trust--
(i) which was not created directly by such
individual, his spouse (or domestic partner),
or any dependent child, and
(ii) the holdings or sources of income of
which such individual, his spouse (or domestic
partner), and any dependent child have no
knowledge of; or
* * * * * * *
but such individual shall report the category of the amount of
income received by him, his spouse (or domestic partner), or
any dependent child from the trust or other entity under
subsection (a)(1)(B) of this section.
(3) For purposes of this subsection, the term ``qualified
blind trust'' includes any trust in which a reporting
individual, his spouse (or domestic partner), or any minor or
dependent child has a beneficial interest in the principal or
income, and which meets the following requirements:
(A) * * *
* * * * * * *
(E) For purposes of this subsection, ``interested
party'' means a reporting individual, his spouse (or
domestic partner), and any minor or dependent child;
``broker'' has the meaning set forth in section 3(a)(4)
of the Securities and Exchange Act of 1934 (15 U.S.C.
78c(a)(4)); and ``investment adviser'' includes any
investment adviser who, as determined under regulations
prescribed by the supervising ethics office, is
generally involved in his role as such an adviser in
the management or control of trusts.
* * * * * * *
(4)(A) * * *
(B)(i) The provisions of subparagraph (A) shall not apply
with respect to a trust created for the benefit of a reporting
individual, or the spouse (or domestic partner), dependent
child, or minor child of such a person, if the supervising
ethics office for such reporting individual finds that--
* * * * * * *
Sec. 105. Custody of and public access to reports\*\
---------------------------------------------------------------------------
\*\As amended by bill section 801(b)(2)(A)(ii).
---------------------------------------------------------------------------
(a) * * *
(b)(1) * * *
* * * * * * *
(3)(A) This section does not require the immediate and
unconditional availability of reports filed by an individual
described in [section 109(8) or 109(10)] section 109(9) or (11)
of this Act if a finding is made by the Judicial Conference, in
consultation with United States Marshal Service, that revealing
personal and sensitive information could endanger that
individual or a family member of that individual.
* * * * * * *
Sec. 109. Definitions\\
---------------------------------------------------------------------------
\\As amended by bill section 801(b)(1).
---------------------------------------------------------------------------
For the purposes of this title, the term--
(1) * * *
(2) ``dependent child'' means, when used with respect
to any reporting individual, any individual who is a
son, daughter, stepson, or stepdaughter (or who is a
son or daughter of the reporting individual's domestic
partner) and who--
(A) is [unmarried] not married (and not in a
domestic partnership) and under age 21 and is
living in the household of such reporting
individual; or
(B) is a dependent of such reporting
individual within the meaning of section 152 of
the Internal Revenue Code of 1986 [26 U.S.C.
152] (or, in the case of a son or daughter of
the reporting individual's domestic partner,
would be a dependent within the meaning of such
section if the requirements of subsections
(c)(1)(A) and (d)(1)(A) of such section were
disregarded);
(3) * * *
(4) ``domestic partner'' and ``domestic partnership''
have the meanings given under section 2501 of title 5,
United States Code.
[(4)](5) ``executive branch'' includes each Executive
agency (as defined in section 105 of title 5, United
States Code), other than the Government Accountability
Office, and any other entity or administrative unit in
the executive branch;
[(5)](6) ``gift'' means a payment, advance,
forbearance, rendering, or deposit of money, or any
thing of value, unless consideration of equal or
greater value is received by the donor, but does not
include--
(A) * * *
* * * * * * *
[(6)](7) ``honoraria'' has the meaning given such
term in section 505 of this Act;
[(7)](8) ``income'' means all income from whatever
source derived, including but not limited to the
following items: compensation for services, including
fees, commissions, and similar items; gross income
derived from business (and net income if the individual
elects to include it); gains derived from dealings in
property; interest; rents; royalties; dividends;
annuities; income from life insurance and endowment
contracts; pensions; income from discharge of
indebtedness; distributive share of partnership income;
and income from an interest in an estate or trust;
[(8)](9) ``judicial employee'' means any employee of
the judicial branch of the Government, of the United
States Sentencing Commission, of the Tax Court, of the
Court of Federal Claims, of the Court of Appeals for
Veterans Claims, or of the United States Court of
Appeals for the Armed Forces, who is not a judicial
officer and who is authorized to perform adjudicatory
functions with respect to proceedings in the judicial
branch, or who occupies a position for which the rate
of basic pay is equal to or greater than 120 percent of
the minimum rate of basic pay payable for GS-15 of the
General Schedule;
[(9)](10) ``Judicial Conference'' means the Judicial
Conference of the United States;
[(10)](11) ``judicial officer'' means the Chief
Justice of the United States, the Associate Justices of
the Supreme Court, and the judges of the United States
courts of appeals, United States district courts,
including the district courts in Guam, the Northern
Mariana Islands, and the Virgin Islands, Court of
Appeals for the Federal Circuit, Court of International
Trade, Tax Court, Court of Federal Claims, Court of
Appeals for Veterans Claims, United States Court of
Appeals for the Armed Forces, and any court created by
Act of Congress, the judges of which are entitled to
hold office during good behavior;
[(11)](12) ``legislative branch'' includes--
(A) * * *
* * * * * * *
[(12)](13) ``Member of Congress'' means a United
States Senator, a Representative in Congress, a
Delegate to Congress, or the Resident Commissioner from
Puerto Rico;
[(13)](14) ``officer or employee of the Congress''
means--
(A) * * *
* * * * * * *
[(14)](15) ``personal hospitality of any individual''
means hospitality extended for a nonbusiness purpose by
an individual, not a corporation or organization, at
the personal residence of that individual or his family
or on property or facilities owned by that individual
or his family;
[(15)](16) ``reimbursement'' means any payment or
other thing of value received by the reporting
individual, other than gifts, to cover travel-related
expenses of such individual other than those which
are--
(A) * * *
* * * * * * *
[(16)](17) ``relative'' means an individual who is
related to the reporting individual, as father, mother,
son, daughter, brother, sister, uncle, aunt, great
aunt, great uncle, first cousin, nephew, niece,
husband, wife, grandfather, grandmother, grandson,
granddaughter, father-in-law, mother-in-law, son-in-
law, daughter-in-law, brother-in-law, sister-in-law,
stepfather, stepmother, stepson, stepdaughter,
stepbrother, stepsister, half brother, half sister, or
who is the grandfather or grandmother of the spouse of
the reporting individual, and shall be deemed to
include the fiance or fiancee of the reporting
individual;
[(17)](18) ``Secretary concerned'' has the meaning
set forth in section 101(a)(9) of title 10, United
States Code, and, in addition, means--
(A) * * *
* * * * * * *
[(18)](19) ``supervising ethics office'' means--
(A) * * *
* * * * * * *
[(19)](20) ``value'' means a good faith estimate of
the dollar value if the exact value is neither known
nor easily obtainable by the reporting individual.
* * * * * * *
TITLE V--GOVERNMENT-WIDE LIMITATIONS ON OUTSIDE EARNED INCOME AND
EMPLOYMENT
Sec. 501. Outside earned income limitation\*\
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\*\As amended by bill section 801(c).
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(a) * * *
* * * * * * *
(c) Treatment of Charitable Contributions.--Any honorarium
which, except for subsection (b), might be paid to a Member,
officer or employee, but which is paid instead on behalf of
such Member, officer or employee to a charitable organization,
shall be deemed not to be received by such Member, officer or
employee. No such payment shall exceed $2,000 or be made to a
charitable organization from which such individual or a parent,
sibling, [spouse, child, or dependent relative of such
individual] spouse (or domestic partner), child, or dependent
relative of such individual (or child, sibling, or parent of
such individual's domestic partner, which child, sibling, or
parent is a dependent of such individual) derives any financial
benefit.
* * * * * * *
Sec. 505. Definitions\\
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\\As amended by bill sections 801(d).
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For purposes of this title:
(1) * * *
* * * * * * *
(3) The term ``honorarium'' means a payment of money
or any thing of value for an appearance, speech or
article (including a series of appearances, speeches,
or articles if the subject matter is directly related
to the individual's official duties or the payment is
made because of the individual's status with the
Government) by a Member, officer or employee, excluding
any actual and necessary travel expenses incurred by
such individual (and one relative (or the individual's
domestic partner, or a parent, child, or sibling of the
individual's domestic partner)) to the extent that such
expenses are paid or reimbursed by any other person,
and the amount otherwise determined shall be reduced by
the amount of any such expenses to the extent that such
expenses are not paid or reimbursed.
(4) The term ``travel expenses'' means, with respect
to a Member, officer or employee, or a relative (or the
domestic partner, or a parent, child, or sibling of the
domestic partner) of any such individual, the cost of
transportation, and the cost of lodging and meals while
away from his or her residence or principal place of
employment.
* * * * * * *
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 11--BRIBERY, GRAFT, AND CONFLICTS OF INTEREST
* * * * * * *
Sec. 203. Compensation to Members of Congress, officers, and others in
matters affecting the Government\*\
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\*\As amended by bill section 802(a).
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(a) * * *
* * * * * * *
(d) Nothing in this section prevents an officer or
employee, including a special Government employee, from acting,
with or without compensation, as agent or attorney for or
otherwise representing his parents, spouse (or domestic
partner, as that term is defined in section 2501 of title 5),
child, or any person for whom, or for any estate for which, he
is serving as guardian, executor, administrator, trustee, or
other personal fiduciary except--
(1) * * *
* * * * * * *
Sec. 205. Activities of officers and employees in claims against and
other matters affecting the Government\*\
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\*\As amended by bill section 802(b).
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(a) * * *
* * * * * * *
(e) Nothing in subsection (a) or (b) prevents an officer or
employee, including a special Government employee, from acting,
with or without compensation, as agent or attorney for, or
otherwise representing, his parents, spouse (or domestic
partner, as that term is defined in section 2501 of title 5),
child, or any person for whom, or for any estate for which, he
is serving as guardian, executor, administrator, trustee, or
other personal fiduciary except--
(1) * * *
* * * * * * *
Sec. 208. Acts affecting a personal financial interest\\
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\\As amended by bill section 802(c).
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(a) Except as permitted by subsection (b) hereof, whoever,
being an officer or employee of the executive branch of the
United States Government, or of any independent agency of the
United States, a Federal Reserve bank director, officer, or
employee, or an officer or employee of the District of
Columbia, including a special Government employee, participates
personally and substantially as a Government officer or
employee, through decision, approval, disapproval,
recommendation, the rendering of advice, investigation, or
otherwise, in a judicial or other proceeding, application,
request for a ruling or other determination, contract, claim,
controversy, charge, accusation, arrest, or other particular
matter in which, to his knowledge, he, his spouse (or domestic
partner, as that term is defined in section 2501 of title 5),
minor child, general partner, organization in which he is
serving as officer, director, trustee, general partner or
employee, or any person or organization with whom he is
negotiating or has any arrangement concerning prospective
employment, has a financial interest--
Shall be subject to the penalties set forth in section 216
of this title.
* * * * * * *
TITLE 31--MONEY AND FINANCE
* * * * * * *
Subtitle I--General
* * * * * * *
CHAPTER 7--GOVERNMENT ACCOUNTABILITY OFFICE
* * * * * * *
Subchapter V--Annuities
Sec. 771. Definitions\*\
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\*\As amended by bill section 706(a)
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In this [subchapter--] subchapter:
(1) The term ``dependent child'' means an unmarried
dependent child (including a stepchild (or the child of a
reporting Comptroller General's domestic partner) or adopted
child) who is--
[(2) ``surviving spouse'' means a surviving spouse of an
individual who was a Comptroller General or retired Comptroller
General and the spouse--
[(A) was married to the individual for at least 1
year immediately before the individual died; or
[(B) has not remarried before age 55 and is the
parent of issue by the marriage.
[(3) service as a Comptroller General equals the number of
years and complete months an individual is Comptroller
General.]
(2) The terms ``domestic partner'' and ``domestic
partnership'' have the meanings given under section 2501 of
title 5.
(3) The term ``surviving spouse'' means a surviving spouse
of an individual who was a Comptroller General or retired
Comptroller General and the spouse--
(A) was married to the individual for at least 1 year
immediately before the individual died; or
(B) has not remarried (or entered into a domestic
partnership) before age 55 and is the parent of issue
by the marriage.
(4) The term ``surviving partner'' means a surviving
domestic partner of an individual who was a Comptroller General
or retired Comptroller General and the domestic partner--
(A) was in a domestic partnership for at least 1 year
immediately before the individual died; or
(B)(i) has not entered into a subsequent domestic
partnership or married before age 55; and
(ii) satisfies other requirements, related to
parenthood and the domestic partnership, prescribed by
the Director of the Office of Personnel Management by
regulation under sections 8341(3)(b) and 8441(3)(B) of
title 5, as determined and applied by the General
Counsel of the Government Accountability Office on the
basis of those regulations.
(5) Service as a Comptroller General equals the number of
years and complete months an individual is Comptroller General.
* * * * * * *
Sec. 773. Election of survivor benefits\*\
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\*\As amended by bill section 706(b).
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(a) * * *
(b) A Comptroller General electing to provide survivor
benefits shall--
(1) * * *
(2) deposit with the Government Accountability Office
for redeposit in the Treasury as miscellaneous
receipts--
(A) * * *
(B) 4.5 percent of basic pay received as a
member of Congress or for other civilian
service on which a surviving spouse's (or
domestic partner's) annuity is computed under
section 774(d) of this title; and
* * * * * * *
(c) This subchapter does not prevent a surviving spouse (or
domestic partner) or dependent child from receiving another
annuity while receiving an annuity under section 774 of this
title. However, service used in computing an annuity under
section 774 may not be used in computing the other annuity.
(d) The reduction in the Comptroller General's annuity
under subsection (b)(1) for the purpose of providing survivor
benefits shall be terminated for each full month after the
death of the spouse (or domestic partner).
* * * * * * *
Sec. 774. Survivor annuities\\
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\\As amended by bill section 706(c).
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(a) * * *
* * * * * * *
(c) If the Comptroller General or retired Comptroller
General is survived--
[(1) only by a spouse, the surviving spouse shall
receive an annuity computed under subsection (d) of
this section beginning on the death of the Comptroller
General or retired Comptroller General or when the
spouse is 50 years of age, whichever is later;]
(1) only by a spouse (or domestic partner), the
surviving spouse (or surviving domestic partner) shall
receive an annuity computed under subsection (d) of
this section beginning on the death of the Comptroller
General or retired Comptroller General or when the
spouse (or domestic partner) is 50 years of age,
whichever is later;
(2) [by a spouse and a dependent child, the surviving
spouse] by a spouse (or domestic partner) and a
dependent child, the surviving spouse (or surviving
domestic partner) shall receive an immediate annuity
computed under subsection (d) of this section and each
dependent child shall receive an immediate annuity
equal to the smaller of--
(A) * * *
* * * * * * *
(3) only by a dependent child, each dependent child
shall receive an immediate annuity equal to the smaller
of--
(A) the annuity a surviving spouse (or
surviving domestic partner) would be entitled
to receive under clause (2) of this subsection,
divided by the number of dependent children;
* * * * * * *
(d) The annuity of a surviving spouse (or surviving
domestic partner) is equal to--
(1) * * *
* * * * * * *
(e) A surviving spouse's (or surviving domestic partner's)
annuity may not be more than 50 percent nor less than 25
percent of the average annual pay computed under subsection
(d)(1) of this section. If a Comptroller General does not make
the deposit under section 773(b) of this title, a surviving
spouse's (or surviving domestic partner's) annuity shall be
credited with the service during which a deposit was not made,
unless the spouse (or domestic partner) elects not to have the
service credited. However, the annuity shall be reduced by 10
percent of the amount of the unpaid deposit, computed on the
date the Comptroller General or retired Comptroller General
dies.
* * * * * * *
Sec. 775. Refunds\*\
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\*\As amended by bill section 706(d).
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(a) * * *
* * * * * * *
(d) If a Comptroller General or retired Comptroller General
dies before a refund is made under this section, the refund
shall be paid in the following order of precedence:
(1) * * *
(2) to a surviving spouse (or surviving domestic
partner).
* * * * * * *
(e) The General Counsel is not subject to section 771(1)
and (2) of this title when making a decision about a surviving
spouse (or surviving domestic partner) or child under
subsection (c) or (d) of this section.
* * * * * * *
Sec. 776. Payment of survivor benefits\\
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\\As amended by bill section 706(e).
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(a) * * *
(b)(1) [A surviving spouse's annuity ends when the spouse
remarries] A surviving spouse's (or surviving domestic
partner's) annuity ends when the spouse remarries (or enters
into a domestic partnership) (or when the surviving domestic
partner enters into another domestic partnership or marries)
before age 55 or dies.
(2) A dependent child's annuity ends when the child becomes
18 years of age (unless the child is then a student as
described in section 771(1)(C) of this title), [marries, or
dies, whichever is earliest. However, if a child is not self-
supporting because of a physical or mental disability, an
annuity ends when the child recovers, marries] marries (or
enters into a domestic partnership), or dies, whichever is
earliest. However, if a child is not self-supporting because of
a physical or mental disability, an annuity ends when the child
recovers, marries (or enters into a domestic partnership), or
dies.
(3) If a surviving spouse (or surviving domestic partner)
dies and a dependent child survives, the child's annuity is
recomputed under section 774(c)(3) of this title.
* * * * * * *
Sec. 777. Annuity increases\*\
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\*\As amended by bill section 706(f).
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(a) * * *
(b) An annuity under section 772 of this title may not be
more than the basic pay of the Comptroller General. A surviving
spouse's (or surviving domestic partner's) annuity may be
increased under this section without regard to any limitation
set forth in section 774(e) of this title.
* * * * * * *
TITLE 42--THE PUBLIC HEALTH AND WELFARE
* * * * * * *
CHAPTER 6A--PUBLIC HEALTH SERVICE
* * * * * * *
Subchapter III--National Research Institutes
* * * * * * *
PART I--FOUNDATION FOR THE NATIONAL INSTITUTES OF HEALTH
Sec. 290b. Establishment and duties of Foundation.\\
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\\As amended by bill Sec. 801(b)(2)(B)(ii).
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(a) * * *
* * * * * * *
(j) General provisions.--
(1) * * *
(2) Financial conflicts of interest.--Any individual
who is an officer, employee, or member of the Board of
the Foundation may not (in accordance with policies and
requirements developed under subsection (d)(6))
personally or substantially participate in the
consideration or determination by the Foundation of any
matter that would directly or predictably affect any
financial interest of the individual or a relative (as
such term is defined in [section 109(16)] section
109(17) of the Ethics in Government Act of 1978) of the
individual, of any business organization or other
entity, or of which the individual is an officer or
employee, or is negotiating for employment, or in which
the individual has any other financial interest.
* * * * * * *