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General Memorandum 17-018

General Memorandum 17-018
OPM Publishes Final Rule Governing Access to Federal Employee Health Benefits for Tribal Employers and Employees

On December 28, 2016, the U.S. Office of Personnel Management (OPM) published a final rule in the FEDERAL REGISTER governing access to Federal Employee Health Benefits (FEHB) for tribal employers and employees under section 409 of the Indian Health Care Improvement Act (IHCIA), as amended by section 10221 of the Affordable Care Act. 81 Fed. Reg. 95397 (Dec. 28, 2016). (See our General memorandum 16-056 of August 31, 2016 regarding the proposed rule). The final rule establishes procedures for the administration of FEHB benefits including enrollment, coverage selection, and the regulation of premium contributions by tribal employers and employees. The FEDERAL REGISTER notice may be found here: https://www.gpo.gov/fdsys/pkg/FR-2016-12-28/pdf/2016-31195.pdf.

On January 20, 2017, President Trump issued a White House Memorandum requiring federal agencies to temporarily postpone the effective date of certain rules that had been published in the FEDERAL REGISTER but had not yet taken effect within 60 days of the date of the Memorandum. The FEHB final rule fell within the scope of President Trump's mandate. The effective date for the final rule is now March 21, 2017.

The regulations incorporate statutory eligibility provisions that extend the right to offer FEHB coverage to Indian tribes and tribal organization administering programs under the Indian Self-Determination and Education Assistance Act (ISDEAA) and urban Indian organizations carrying out programs under Title V of the IHCIA. See 25 U.S.C. § 1647b. A tribal employer who purchases FEHB coverage for at least one billing unit carrying out at least one program under the ISDEAA or Title V of the IHCIA is able to offer FEHB coverage to other billing units regardless of the type of programs offered by those other units. However, tribal employers cannot contribute toward or offer an alternative employer-sponsored health insurance plan for tribal employees within FEHB-covered billing units, with the exception of a collectively bargained alternative plan. Tribal employers that elect to purchase FEHB coverage for their tribal employees must contribute a share of the premium that is at least equivalent to what the federal government contributes for federal employees, but are permitted to vary their contribution amount by enrollment type or by billing unit.

Consistent with existing FEHB and federal tax standards, the regulations define the term "tribal employee" to mean a common law employee of a tribal employer. Intermittent, seasonal, and temporary tribal employees are treated similarly to their federal counterparts; although a tribal employer may choose not to extend coverage to such employees if written notice is provided to the Director of the OPM. Eligible tribal employees have the same plan options and be entitled to choose from available FEHB health plans to the same extent as federal employees in the same geographic area, namely, "self only," "self plus one," or "self and family" enrollment options.

In order to purchase FEHB coverage, the regulations require tribal employers to enter into an agreement with OPM confirming the tribal employer's eligibility and setting out various conditions of participation. These conditions include, among several others: agreement by the tribal employer not to offer alternate tribal employer-sponsored health insurance coverage to FEHB-eligible employees concurrently with FEHB; acknowledgement that the tribal employer will be subject to federal audit with respect to FEHB participation; an agreement to establish or identify an independent dispute resolution panel to adjudicate employee disputes; and agreement that the tribal employer will notify OPM if it ceases to carry out at least one program under the ISDEAA or Title V of the IHCIA. Responsibilities of tribal employers administering FEHB also include eligibility determinations, enrollment, and notification requirements.

Among other things, the regulations codify procedures and rules for payment; revocation and re-election of purchase of coverage; employee eligibility; enrollment and cancellation or termination of employee coverage; temporary extension of coverage and conversion to individual policy; and enrollment and eligibility appeal rights.

Please let us know if we may provide additional information or assistance regarding the OPM final rule.

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Inquiries may be directed to:
Elliott Milhollin (emilhollin@hobbsstraus.com)
Geoff Strommer (gstrommer@hobbsstraus.com)
Lisa Meissner (lmeissner@hobbsstraus.com)

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