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When the Cochiti Pueblo of New Mexico objected to the development of hydropower at the Cochiti Dam, Hobbs Straus helped the Tribe secure legislation blocking its development (1990).

GENERAL MEMORANDUM 11-054

GENERAL MEMORANDUM 11-054
Office of Personnel Management Consultation Plans on the Tribal Option to Offer Federal Employee Health Benefits for their Employees

On May 2, 2011, the Office of Personnel Management (OPM) issued the attached letters to tribal leaders and urban Indian health organizations regarding upcoming consultations on implementation of Section 409 of the Indian Health Care Improvement Act (IHCIA). That provision, incorporated into the Affordable Care Act which was signed into law in March 2010, provides tribes operating Indian Self-Determination and Education Assistance Act (ISDEAA) programs and urban Indian organizations operating programs under Title V of the IHCIA the option of offering its employees Federal Employee Health Benefits and Federal Employees Group Life Insurance.

The letters differ in the terms used to describe OPM communications. For tribes the communications are described as "consultation" and for urban Indian organizations the term "confer" is used.

Of note is that the letters refer to tribal and urban Indian organization employees with no further description but does not limit the federal insurance option to those persons employed in an ISDEAA or Title V-funded program. It has always been our view that the provision applies to all employees, but last year OPM and IHS raised a question about whether it applied to all tribal and urban Indian organization employees or just those under ISEAA or Title V of the IHCIA. The May 2 letters and remarks by OPM officials at the May 2-6 Tribal Self-Governance Conference in Palm Springs, California, settle this issue in favor of eligibility for all tribal and urban Indian organization employees. John O'Brien of OPM noted at the Self-Governance conference that the benefits will be for all employees "who meet the common law employee standard."

We are concerned with the length of time that it is taking to work out implementation issues, and hope that the delays will not endanger tribes/urban Indian organizations' ability to have systems in place for enrollment by January 2012. There was considerable comment by tribal representatives at the above-mentioned Self-Governance conference about this same matter. At past appearances at Indian conferences, OPM representatives have indicated the agency will allow an "open season" for the first year, meaning that tribes and urban Indian organizations can elect to enter their employees in the federal programs throughout the year, not just during the usual two-month annual window for joining or changing plans. The letters state that within a few weeks OPM will send information regarding consultation/conferring schedules and materials related to issues that need to be resolved. OPM now has a website specific to implementation of the tribal/urban Indian option to offer federal health insurance (www.opm/gov/TribalPrograms) and we encourage you to utilize this resource. Following the consultation process this summer, a Tribal-Federal work group will work on remaining technical issues.

Please let us know if we may provide additional information or assistance regarding the efforts underway to implement the option for tribal access to federal health and life insurance.

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Inquiries may be directed to:
Carol Barbero (cbarbero@hobbsstraus.com)
Geoff Strommer (gstrommer@hobbsstraus.com)

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