[Federal Register Volume 86, Number 169 (Friday, September 3, 2021)]
[Rules and Regulations]
[Pages 49461-49466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19042]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / 
Rules and Regulations

[[Page 49461]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 890

RIN 3206-AO18


Access to Federal Employees Health Benefits (FEHB) for Employees 
of Certain Tribally Controlled Schools

AGENCY: Office of Personnel Management.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is issuing an interim 
final rule to expand eligibility for enrollment in the Federal 
Employees Health Benefits (FEHB) Program to additional tribal 
employees. The Consolidated Appropriations Act, 2021 (FY21 CAA) amended 
section 409 of the Indian Health Care Improvement Act and expanded 
entitlement to Indian tribes or tribal organizations carrying out 
programs under the Tribally Controlled Schools Act of 1988 (TCSA) to 
purchase coverage, rights, and benefits under the FEHB Program for 
their employees.

DATES: 
    Effective date: This rule is effective on September 3, 2021.
    Comment date: OPM must receive comments on or before November 2, 
2021.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by the following method:
    <bullet> Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    All submissions received must include the agency name and docket 
number or RIN for this document. The general policy for comments and 
other submissions from members of the public is to make these 
submissions available for public viewing at http://www.regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Julia Elam, Program Analyst, at 
<a href="/cdn-cgi/l/email-protection#305a455c59511e555c515d705f405d1e575f46"><span class="__cf_email__" data-cfemail="94fee1f8fdf5baf1f8f5f9d4fbe4f9baf3fbe2">[email protected]</span></a> or (202) 606-2128.

SUPPLEMENTARY INFORMATION:

FEHB Program Background

    The FEHB Program was established in 1960 and is the largest 
employer-sponsored health insurance program in the United States. As of 
March 2021, there were approximately 8.2 million covered individuals in 
the FEHB Program. Covered individuals, as defined in 5 CFR 890.101, 
include employees of the Federal government, annuitants, members of 
their families, former spouses, and miscellaneous groups, enumerated in 
5 U.S.C. 8901; United States Postal Service employees and annuitants, 
pursuant to 39 U.S.C. 1005; tribal employees of tribal employers, 
pursuant to 25 U.S.C. 1647b; and separated employees and former 
dependents who are eligible for Temporary Continuation of Coverage 
under 5 U.S.C. 8905a.
    For the 2021 plan year, there are 276 plan choices across the 
entire FEHB Program. The actual number of options available to any 
given enrollee depends on the individual's geographic location but will 
include a minimum of 18 nationwide plan choices, as well as local and 
regional plans. OPM estimates, using the 2020 head count, that total 
2021 premiums are approximately $59 billion.

Authority for This Rulemaking

    Section 1114 of the Consolidated Appropriations Act, 2021 (Pub. L. 
116-260) amended Section 409 of the Indian Health Care Improvement Act 
(25 U.S.C. 1647b) to extend entitlement to Indian tribes or tribal 
organizations carrying out programs under the Tribally Controlled 
Schools Act of 1988 (TCSA) (25 U.S.C. 2501 et seq.) to purchase 
coverage, rights and benefits under the FEHB Program for their 
employees.
    The FEHB Program is administered by OPM in accordance with Title 5 
Chapter 89, United States Code and implementing regulations (title 5, 
parts 890, 892 and Title 48, Chapter 16).
    The Patient Protection and Affordable Care Act (ACA) (Pub. L. 111-
148) and the Health Care and Education Reconciliation Act of 2010 (Pub. 
L. 111-152), as amended extended entitlement to Indian tribes and 
tribal organizations carrying out programs under the Indian Self-
Determination and Education Assistance Act (ISDEAA) (Pub. L. 93-638), 
and urban Indian organizations carrying out programs under Title V of 
the Indian Health Care Improvement Act (IHCIA) to purchase coverage, 
rights, and benefits under the FEHB Program for their employees, 
defined in the FEHB regulations as ``tribal employees.'' As the 
administrator of the FEHB Program, OPM extended eligibility to tribal 
employees of entitled tribal employers within the meaning of section 
409 of the IHCIA. Tribal employers began purchasing FEHB for their 
employees on March 22, 2012 with coverage effective on May 1, 2012. As 
of April 2021, 125 tribes participate in the FEHB Program, and there 
are 32,178 tribal employees for a total of 64,208 covered lives.

Tribally Controlled Schools and FEHB Eligibility

    In 2010, section 409 of the IHCIA did not explicitly extend 
entitlement to tribes and tribal organizations operating schools 
pursuant to the TCSA. After the extension of FEHB to tribal employers 
in 2012, OPM received applications from tribal schools carrying out 
agreements under Public Law 100-297, commonly referred to as ``297 
grant schools'' (hereinafter referred to as ``TCSA grant schools''). 
OPM's understanding was that Public Law 100-297 contracts did not fall 
within the ISDEAA or Title V of the IHCIA. In April 2012, OPM sent a 
letter to the Interior Department's Office of the Solicitor seeking the 
Solicitor's opinion regarding its conclusion that tribes or tribal 
organizations carrying out programs under Public Law 100-297 were not 
entitled to purchase FEHB. In June 2012, the Office of the Solicitor 
within the Interior Department confirmed that tribal employers who 
receive grants pursuant to Public Law 100-297 were not ``ipso facto 
eligible to purchase Federal Employee Health Benefit (FEHB) . . .'' \1\
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    \1\ Sabrina A. McCarthy, Office of the Solicitor, U.S. 
Department of the Interior, to John O' Brien, Director, Healthcare 
and Insurance, Office of Personnel Management (June 1, 2012).
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    Under Public Law 116-260, tribes or tribal organizations carrying 
out programs under the TCSA became tribal

[[Page 49462]]

employers within the meaning of section 409 of the IHCIA and are 
entitled to purchase coverage, rights, and benefits under the FEHB 
Program for their tribal employees. Accordingly, under 25 U.S.C. 1647b, 
tribally controlled schools include both TCSA grant schools and schools 
operating under the ISDEAA (Pub. L. 93-638) or a ``638 contract.'' 
Tribes or tribal organizations operating schools under 638 contracts 
were already entitled to purchase FEHB since the extension of FEHB to 
tribal employers in 2012. Currently, there are 128 tribally controlled 
schools with approximately 4,533 employees. Three of these tribally 
controlled schools operate under 638 contracts schools, and the 
remainder are TCSA grant schools. Tribal employees, as defined at 5 CFR 
890.1402, across the 125 TCSA grant schools are now eligible for FEHB. 
Section 1114 of the FY21 CAA is expected to make FEHB accessible to 
approximately 4,328 tribal employees of entitled TCSA grant schools.

Tribal Consultation

    Under Executive Order 13175, OPM has an obligation to engage in 
``regular and meaningful consultation and collaboration with tribal 
officials in the development of Federal policies that have tribal 
implications.'' OPM continues to be committed to effective consultation 
and collaboration with tribes and tribal organizations.
    OPM conducted extensive consultation with tribes and tribal 
organizations in 2011 and 2012 before implementation of the Tribal FEHB 
Program. OPM representatives attended more than 20 tribal conferences 
and meetings to provide information and consultation about the Program. 
In addition, OPM hosted training sessions for interested tribes and 
tribal organizations on numerous occasions. OPM also published a series 
of policy papers regarding the implementation of the Tribal FEHB 
Program, and tribes, tribal organizations, and urban Indian 
organizations were given an opportunity to provide feedback on these 
papers. A Tribal Technical Workgroup was established to support the 
implementation of the Tribal FEHB Program. Other tribal consultative 
actions included collaborating with the Department of Health and Human 
Services (HHS) to conduct in-person briefings for tribal communities 
across the country, focusing on the implementation of the ACA. 
Consultation for the Tribal FEHB Program is detailed in the proposed 
rule, 81 FR 59907, and the final rule, 81 FR 95397, which are the 
implementing regulations for section 409 of the IHCIA, and set forth 
the conditions for coverage, rights, and benefits under the FEHB 
Program for certain tribal employers who are entitled to purchase FEHB 
coverage for their tribal employees. Public Law 116-260 has tribal 
implications by broadening the category of eligible tribal employees of 
tribally controlled schools that are entitled to purchase FEHB coverage 
for their tribal employees.
    On March 24, 2021, OPM issued a Dear Tribal Leader Letter (DTLL) 
that outlined proposed consultation topics and provided background on 
OPM's mission and activities. OPM also posted a public notice of the 
Consultation on its website and on the National Congress of American 
Indians (NCAI)'s consultation site, and OPM created a new page 
dedicated to current and future consultation activities. On April 16, 
2021, OPM held a virtual tribal consultation with tribes about federal 
human resources policies and programs; ways to improve consultation and 
sustain strong partnerships with Tribal governments; access to Federal 
employee benefits, including the FEHB Program and the newly eligible 
tribal employees of entitled tribally controlled schools under the FY21 
CAA; and recruitment and hiring. A Dear Tribal Principals Letter was 
also issued on May 20, 2021 announcing a Listening Session detailing 
FEHB enrollment, which was held on June 8, 2021.
    The public comment period for the interim final rule is an 
important opportunity to receive meaningful feedback about the 
entitlement of tribally controlled schools to purchase FEHB coverage 
for their tribal employees. Upon publication of the interim final rule, 
OPM will provide notification to Tribal Leaders, stakeholders, and 
other interested parties alerting them of the publication of the rule 
and the process for submitting formal comments. OPM has begun outreach 
to and will continue to assist newly entitled tribally controlled 
schools after the final rule is in effect.

Discussion of the Proposed Changes

    This rule will clarify that newly entitled TCSA grant schools are 
subject to FEHB regulations, as set forth in subpart N of 5 CFR 890 by 
including them in the definition of ``tribal employer,'' and newly 
eligible tribal employees are subject to applicable provisions in the 
regulations. There are technical corrections and clarifications such as 
amending the definitions of ``billing unit'' and 5 CFR 890.1402 to 
tribe or tribal organization carrying out programs under the TCSA and 
including the term ``tribally controlled school'' in 5 CFR 890.1402. In 
addition, the definition of paymaster has been revised to clarify that 
OPM may designate more than one entity to perform the responsibilities 
of the paymaster. There is also the inclusion of tribally controlled 
schools throughout subpart N in Part 890, the regulatory provisions on 
FEHB,\2\ as defined in 5 CFR 890.1402. The newly entitled tribally 
controlled schools are also included throughout section 5 CFR 890.1404, 
which details a tribal employer's election and agreement to purchase 
FEHB. These technical amendments are included at 5 CFR 890.1404(a)(1), 
(a)(2), (b)(5), (b)(9), and (e)(1).
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    \2\ A tribal employer includes an Indian tribe or tribal 
organization carrying out at least one program under the ISDEAA; an 
Indian tribe or tribal organization carrying out at least one 
program under the TCSA; and an urban Indian organization carrying 
out at least one program under title V of the IHCIA.
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Expected Impact of Proposed Changes

    While this rule identifies TCSA grant schools as tribal employers 
entitled to purchase FEHB coverage for their tribal employees, pursuant 
to Public Law 116-260, OPM does not believe this regulation will have a 
large impact on the broader health insurance markets. Currently, there 
are an estimated 4,533 eligible tribal employees of tribally controlled 
schools, including TCSA grant schools and ``638 contract schools.'' 
Eligible tribal employees are full-time common law employees as 
determined by a tribal employer. There are an estimated 4,328 newly 
eligible tribal employees at TCSA grant schools. The impact on carriers 
is relatively small, as tribal enrollments make up 0.78 percent of 
enrollments in the FEHB Program. As of April 2021, the total tribal 
enrollment in the FEHB Program is 32,178 with a total of 64,208 covered 
lives. Overall, as of March 2021 there are over 4.1 million separate 
enrollments in the FEHB Program, providing health insurance to about 
8.2 million Federal employees, annuitants, certain tribal employees, 
and their family members covered by the FEHB Program.
    For states with larger AI/AN populations, OPM does not expect an 
outsized impact on local carriers as local carriers plans generally 
reflect the cost of their area. OPM does not anticipate that the newly 
eligible tribal employees will be significantly more expensive than 
other current FEHB enrollees in the same geographic region. For 
example, OPM estimates, for tribally controlled schools in which data 
is

[[Page 49463]]

available, that in states with large AI/AN populations, such as New 
Mexico, Arizona, and South Dakota, only about 1,899 tribal employees 
are eligible at TCSA grant schools. Therefore, OPM does not anticipate 
a material impact if these tribal enrollees were to enroll in FEHB 
coverage. For FEHB nationwide fee-for-service (FFS) plans, there will 
not be enough new enrollees in this group to have a material impact.

Waiver of Proposed Rulemaking

    OPM is issuing this rulemaking as an interim final rule and has 
determined that, under the Administrative Procedure Act (APA), 5 U.S.C. 
553(b)(B), it would be impracticable, unnecessary, and contrary to the 
public interest to delay a final regulation until a public notice and 
comment process has been completed. For the same reasons, under the 
Civil Service Reform Act's parallel rulemaking provision, 5 U.S.C. 
1103(b)(3), OPM is waiving general notice of proposed rulemaking 
because the interim final rule is temporary in nature and necessary to 
be implemented expeditiously as a result of an emergency. OPM will 
promulgate a final rule as soon as is practical after receiving public 
comments on the interim final rule. The conclusion of a public notice 
and comment period before the rule is finalized would be impracticable 
because it would impede due and timely execution of OPM's functions:
    This rule will facilitate the purchase of FEHB by entitled tribes 
or tribal organizations carrying out programs under the TCSA that 
became entitled to purchase FEHB on December 27, 2020, pursuant to the 
enactment of Public Law 116-260. OPM, as administrator of the FEHB 
Program and Tribal FEHB Program, has reached out to the U.S. Department 
of Interior's Bureau of Indian Education to identify entitled tribally 
controlled schools that may apply for the FEHB Program. Outreach 
included identifying the entitled tribally controlled schools to 
communicate with them about tribal employees' eligibility, enrollment, 
and key dates for enrolling in FEHB; issuing a Dear Tribal Leader 
Letter to announce an OPM wide consultation with Tribal Leaders in 
accordance with the Presidential Memorandum on Tribal Consultation \3\ 
and conducting an OPM wide consultation with Tribal Leaders to improve 
the ways OPM can partner with Tribal governments and provide services 
to tribal members and employees on April 16, 2021; issuing a separate 
letter to tribally controlled school principals about their entitlement 
to purchase FEHB for their tribal employees; and working with the 
paymaster to expedite processing of the newly entitled tribally 
controlled schools.
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    \3\ Memorandum on Tribal Consultation and Strengthening Nation-
to-Nation Relationships, January 26, 2021, at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/memorandum-on-tribal-consultation-andstrengthening-nation-to-nation-relationships/.
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    To the extent that a public notice and comment process would 
furnish general public information about the entitlement of tribes or 
tribal organizations carrying out programs under the TCSA and the 
conditions for coverage, rights, and benefits under the FEHB Program 
for employees of tribal employers, it is unnecessary in light of OPM's 
outreach to Tribal Leaders and tribally controlled schools operated by 
tribes and tribal organizations. Four eligible tribally controlled 
schools elected to begin purchasing FEHB coverage for their tribal 
employees on May 1, 2021 with an insurance coverage effective date of 
May 1, 2021. As of July 2021, 7 tribally controlled schools have 
enrolled in the FEHB Program.
    Although OPM has engaged in these outreach efforts, given the law's 
effective date of December 27, 2020, there is an immediate need for 
this interim final rule in order to establish and regulate relations 
between tribal employees and their employers, and between tribal 
employers and OPM, and to ensure that proper processes for purchase of 
FEHB coverage by tribally controlled schools and enrollment of tribal 
employees are followed.
    The expeditious implementation of these rules is necessary to 
support the administration of the purchase of FEHB coverage by TCSA 
grant schools and enrollment of their tribal employees. In addition, 
implementation of these rules will serve to protect the rights of newly 
eligible tribal employees by placing TCSA grant schools and tribal 
employees on immediate notice that such processes have been implemented 
to eliminate any doubt that might exist regarding the immediate ability 
of tribally controlled schools to purchase FEHB covered for their 
tribal employees and for tribal employees to enroll. Failure to 
expeditiously implement these rules could lead to confusion and 
administrative challenges due to a lack of awareness about the manner 
in which this new coverage may be purchased and tribal employees may 
enroll, as well as an unnecessary delay in providing healthcare 
coverage.
    On December 28, 2016, OPM promulgated a final rule, 81 FR 95397, 
that established how FEHB enrollment under the Tribal FEHB Program is 
administered, including eligibility; tribal employer and tribal 
employee contribution to premiums; the process by which tribal 
employers will access the program; the process by which tribal 
employees will elect coverage, and circumstances for termination and 
cancellation of enrollment; tribal employers responsibilities such as 
communicating notice of termination of enrollment, and accompanying 
rights and obligations, to their tribal employees. This interim final 
rule includes technical amendments to clarify that newly entitled TCSA 
grant schools are now tribal employers, and tribal employees of those 
schools are subject to the regulations in subpart N in Part 890, 
setting forth the conditions for coverage, rights, and benefits under 
the FEHB Program for employees of tribal employers.
    This interim final rule is urgently needed to establish that 
tribally controlled schools are newly subject to the same regulations 
as existing tribal employers and to assist them in understanding the 
requirements of the Tribal FEHB Program. The interim final rule 
includes TCSA grant schools as tribal employers who must follow the 
same processes as other tribal employers. For example, they must 
provide certification and documentation demonstrating that the tribal 
employer is entitled to purchase FEHB as an Indian tribe or tribal 
organization carrying out at least one program under Tribally 
Controlled Schools Act of 1988. They are also subject to the 
regulations, including, but not limited to, the following: election and 
agreement to purchase FEHB; current deposit of premium payments and 
collection of the administrative fee; acknowledging that participation 
in FEHB makes the tribal employer subject to Federal Government audit 
with respect to such participation; and administering the program in 
accordance with the subpart N.
    For these reasons, OPM has determined that the public notice and 
participation that the APA ordinarily requires would, in this case, be 
impracticable, unnecessary, and contrary to the public interest and 
that good cause exists for waiving proposed rulemaking and delaying its 
solicitation of comments from the public until after it issues an 
interim final rule. OPM will promulgate a final rule as soon as 
practical after receiving comments on the interim final rule.

Regulatory Impact Analysis

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is

[[Page 49464]]

necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distribute impacts, and equity). This rule is a significant 
regulatory action under E.O. 12866. As of July 2021, 7 tribally 
controlled schools have enrolled in the FEHB Program. Currently, there 
are an estimated 4,328 newly eligible employees of 297 grant schools 
and 205 eligible tribal employees at 638 contract schools.

Need for Regulatory Action

    The FY21 CAA amended section 409 of the IHCIA, codified at 25 
U.S.C. 1647b, and expanded entitlement to tribes and tribal 
organizations carrying out programs under the TCSA to purchase 
coverage, rights and benefits under the FEHB Program for their tribal 
employees. As the administrator of the FEHB Program, OPM has extended 
eligibility to tribal employees of TCSA grant schools that have 
purchased FEHB coverage within the meaning of section 409 as amended. 
Issuance of Federal regulations without delay is necessary to apply the 
existing rules that govern the relationship between OPM and tribal 
employers, and between the tribal employers and their tribal employees 
who have already elected to enroll in FEHB. Therefore, OPM has good 
cause to issue interim final rules that will protect the interests of 
all stakeholders, memorialize processes and procedures, and provide 
transparency.
    Currently, there are an estimated 4,328 newly eligible employees of 
TCSA grant schools and 205 eligible tribal employees at three ``638 
contract schools.'' Of these, 125 are tribally controlled schools where 
FEHB was previously not available, and 3 are other schools for which 
FEHB eligibility has previously been expanded.
    At these affected schools, administrators will potentially take 
steps to update their health insurance offerings in line with expanded 
FEHB eligibility. This may include familiarization with FEHB policies, 
planning, enrolling schools, and providing information to staff on plan 
options. To the extent that this results in effort above and beyond 
normal effort associated with administering the health insurance 
selection process, this will generate costs for these schools. However, 
OPM lacks data to estimate the extent to which this rule will generate 
such costs.
    This rule may affect expenses paid by tribal employers toward 
health insurance premiums for employees. Under 5 CFR 890.1413(b), 
tribal employers are required to contribute to the premium for tribal 
employees at least the same as the Federal government does for its 
employees and may contribute more, up to 100 percent of the premium 
costs. Under 5 U.S.C. 8906, the Federal government contribution is 
statutorily defined as the lesser of 72 percent of the weighted average 
of all premiums or 75 percent of the plan premium. The Senate Report 
\4\ mentioned previously suggests that some tribal employers currently 
pay a substantial fraction of health insurance premiums, and that 
access to FEHB will appreciably reduce premiums. To the extent that 
this is the case, there will be a reduction in premium payments paid by 
tribal employers. We lack data to estimate the magnitude of these 
effects since they depend upon the number of enrollees who shift health 
insurance decisions as a result of the rule, the characteristics of the 
newly chosen health plans, and the portion of the premium paid by the 
employer.
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    \4\ Id.
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    In addition, tribal employers are responsible for the costs 
associated with administering the Tribal FEHB Program. The 
administrative fee covers costs for the paymaster to process tribal 
employee FEHB enrollments and collect and remit premiums. It also 
covers costs associated with dedicated OPM staff who process new tribe 
applications; oversee the paymaster; answer FEHB Program questions; and 
issue FEHB Program guidance through Tribal Benefits Administration 
Letters (TBALs) released and distributed to tribal employers. For 
fiscal year 2021, the administrative fee is $5.63 per enrollee per 
month.
    There is an immediate need for affordable health insurance for 
tribally controlled schools. According to a 2019 Senate Report,\5\ many 
Bureau of Indian Education (BIE) grant schools face challenges covering 
the cost of benefits for their employees because they do not have 
access to lower-cost options through the FEHB Program. Another urgent 
concern is that American Indian/Alaska Natives (AI/AN) experience 
health disparities, and, according to the Centers for Disease Control 
and Prevention (CDC), AI/AN have experienced disproportionate rates of 
infection and mortality during the COVID-19 pandemic.
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    \5\ See U.S. Senate. To Allow Tribal Grant Schools to 
Participate in the Federal Employee Health Benefits Program (S. Rep. 
No. 116-54). Available at https://www.govinfo.gov/content/pkg/CRPT-116srpt54/html/CRPT-116srpt54.htm.
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    Furthermore, according to the NCAI and the National Indian Health 
Board, many BIE grant schools utilize a portion of their educational 
services funding to pay for health insurance and other benefits, which 
reduces financial resources for textbooks, teacher's aides, and 
extracurricular programs.\6\ Access to affordable health insurance 
could also reduce the financial burden on tribally controlled schools 
such that resources can be redirected for the benefit of students. 
Another benefit is that TCSA grant schools are provided with equal 
opportunity to enroll in the FEHB Program.
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    \6\ Id.
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    Ultimately, tribal schools assess the cost of participating in the 
FEHB Program and decide if it provides net benefits to their schools. 
For those tribally controlled schools that choose to participate it can 
be assumed that the benefits outweigh the costs of participation, and 
the Senate Report referenced above suggests that this may be the case 
for many affected schools. As noted above, we lack data to estimate the 
magnitude of these effects, and we seek public comment on data or 
methods to estimate these impacts.

Effects on Tribal Employees

    There are an estimated 4,328 newly eligible employees at tribally 
controlled schools. As discussed above, this rule may result in tribal 
employers updating coverage options for employees to include FEHB 
plans. To the extent that this is the case, these employees may update 
their health insurance choices. This may result in some expended effort 
by affected employees, although the extent to which individuals will 
engage in effort above and beyond the baseline effort associated with 
health plan selection is unclear. The Senate Report referenced above 
suggests that this rule may result in appreciable differences in plan 
offerings and selections, although we lack data to estimate the 
potential impact.
    To the extent that individuals adjust their health insurance 
choices, they may experience benefits. While the exact benefits of 
health insurance are difficult to quantify for tribal employees of 
tribally controlled schools, evidence supports that extending access to 
FEHB coverage for newly eligible individuals could have positive 
benefits. For example, Cecelia Firethunder, President of the Oglala 
Lakota Nation Education Coalition (OLNEC), provided testimony at a 
legislative hearing on H.R. 895, the Tribal School Federal Insurance 
Parity Act, suggesting that access to FEHB coverage may allow access to 
lower cost insurance options for their employees.\7\

[[Page 49465]]

This may, in turn, increase utilization of medical services for these 
individuals, resulting in net benefits to society to the extent that 
they provide benefits net of the costs of delivering these medical 
services. Although this increased utilization would represent a cost, 
it may result in a net benefit depending on the extent to which it 
improves health outcomes. OPM lacks data to estimate these impacts, and 
we request comment on data or methods to estimate potential impacts.
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    \7\ See Written Testimony of Cecelia Firethunder, President of 
the Oglala Lakota Nation Education Coalition. House Indigenous 
Peoples of the United States Subcommittee Legislative Hearing on 
H.R. 895, the Tribal School Federal Insurance Parity Act (July 16, 
2019), available at https://www.congress.gov/116/meeting/house/109791/witnesses/HHRG-116-II24-Wstate-FirethunderC-20190716.pdf.
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    Access to FEHB for more tribal employees may help to reduce health 
disparities. According to a Kaiser Family Foundation report published 
in 2017, among nonelderly adults, AI/AN are more likely than other 
adults to report being in fair or poor health, being overweight or 
obese, and having diabetes.\8\ In addition, suicide disproportionately 
affects AI/AN, and in a CDC study, AI/AN decedents had lower odds than 
did White decedents of having received a mental health diagnosis or 
mental health treatment.\9\
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    \8\ See Kaiser Family Foundation, Medicaid and American Indians 
and Alaska Natives, September 7, 2017, https://www.kff.org/medicaid/issue-brief/medicaid-and-american-indians-and-alaska-natives/.
    \9\ See ``Suicides Among American Indian/Alaska Natives--
National Violent Death Reporting System, 18 States, 2003-2014.'' 
Morbidity and Mortality Weekly Reports, 67(8). March 2, 2018. 
Centers for Disease Control and Prevention. Available at https://www.cdc.gov/mmwr/volumes/67/wr/pdfs/mm6708a1-H.pdf.
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    Recently, health disparities have been highlighted for AI/AN, who 
have experienced disproportionate rates of infection and mortality 
during the COVID-19 pandemic.\10\ For persons aged 20-29 years, 30-39 
years, and 40-49 years, the COVID-19 mortality rates among AI/AN were 
10.5, 11.6, and 8.2 times, respectively, those among White persons.\10\ 
Increasing access to affordable healthcare is a way to improve access 
to medical and mental health services and may mitigate inequities. This 
rule may mitigate health inequities to the extent that it increases 
access to medical care.
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    \10\ Id.
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Effects on Other Parties

    As described above, one expected impact of this rule is that 
affected tribal employees will gain access to health insurance plans 
with lower health insurance premiums. A reduction in those premiums 
reflects transfers between various parties involved in these 
transactions. The clearest effect is a transfer toward parties paying 
for health benefits absent the expansion of FEHB benefits, which 
largely include tribal employers and employees. This transfer is most 
likely to come initially from reductions in payments to health 
insurance providers or from offsetting increases in FEHB health 
insurance premiums. We expect that, due to medical loss ratio\13\ 
regulations, premiums largely reflect medical costs experienced by 
those insured by the plan. As a result, we expect that the rule will 
largely initially result in a transfer from those paying FEHB premiums 
(including enrollees and the Federal government) in the baseline to 
entities who experience premium reductions under this rule. As 
described above, we expect these effects to be quite small. However, we 
lack data to estimate the magnitude of these effects, and request 
public comment on data or methods to estimate any potential impacts.

Alternative Regulatory Approaches

    OPM is unaware of feasible alternatives to this rule, as this 
regulation aligns FEHB eligibility with the FY21 CAA, which amended 
section 409 of the IHCIA. Currently, OPM regulations do not include 
FEHB eligibility for Indian tribes or tribal organizations carrying out 
programs under the TCSA, and this rule expands eligibility along these 
lines. We request public comment on alternative approaches to this rule 
which would generate net benefits for the public.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities.

Federalism

    We have examined this rule in accordance with Executive Order 
13132, Federalism, and have determined that this rule will not have any 
negative impact on the rights, roles and responsibilities of State, 
local, or Tribal governments.

Civil Justice Reform

    This regulation meets the applicable standard set forth in 
Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local or 
Tribal governments of more than $100 million annually. Thus, no written 
assessment of unfunded mandates is required.

Congressional Review Act

    Subtitle E of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (also known as the Congressional Review Act) (5 U.S.C. 801 
et seq.) requires rules (as defined in 5 U.S.C. 804) to be submitted to 
Congress before taking effect. OPM will submit to Congress and the 
Comptroller General of the United States a report regarding the 
issuance of this action before its effective date, as required by 5 
U.S.C. 801. OMB's Office of Information and Regulatory Affairs has 
determined that this is not a ``major rule'' as defined by the 
Congressional Review Act (5 U.S.C. 804(2)).

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number.
    This rule involves an OMB approved collection of information 
subject to the PRA for the FEHB Program, OMB No. 3206-0160, Health 
Benefits Election Form. The public reporting burden for this collection 
is estimated to average 30 minutes per response, including time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. The total burden hour estimate for this form 
is 9,000 hours. The systems of record notice for this collection is: 
OPM/Central-23, ``FEHB Program Enrollment Records,'' available at 
https://www.federalregister.gov/d/2021-01259.

List of Subjects in 5 CFR Part 890

    Administrative practice and procedure, Government employees, Health 
facilities, Health insurance, Health professions, Hostages, Indians, 
Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping 
requirements, Retirement.

Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.

    Accordingly, OPM amends title 5, Code of Federal Regulations part 
890 as follows:

[[Page 49466]]

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

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

    Authority: 5 U.S.C. 8913; Sec. 890.102 also issued under 
sections 11202(f), 11232(e), and 11246 (b) of Pub. L. 105-33, 111 
Stat. 251; Sec. 890.111 also issued under section 1622(b) of Pub. L. 
104-106, 110 Stat. 521 (36 U.S.C. 5522); Sec. 890.112 also issued 
under section 1 of Pub. L. 110-279, 122 Stat. 2604 (2 U.S.C. 2051); 
Sec. 890.113 also issued under section 1110 of Pub. L. 116-92, 133 
Stat. 1198 (5 U.S.C. 8702 note); Sec. 890.301 also issued under 
section 311 of Pub. L. 111-3, 123 Stat. 64 (26 U.S.C. 9801); Sec. 
890.302(b) also issued under section 1001 of Pub. L. 111-148, 124 
Stat. 119, as amended by Pub. L. 111-152, 124 Stat. 1029 (42 U.S.C. 
300gg-14); Sec. 890.803 also issued under 50 U.S.C. 3516 (formerly 
50 U.S.C. 403p) and 22 U.S.C. 4069c and 4069c-1; subpart L also 
issued under section 599C of Pub. L. 101-513, 104 Stat. 2064 (5 
U.S.C. 5561 note), as amended; and subpart M also issued under 
section 721 of Pub. L. 105-261 (10 U.S.C. 1108), 112 Stat. 2061; 25 
U.S.C. 1647b.

Subpart N--Federal Employees Health Benefits for Employees of 
Certain Indian Tribal Employers

0
2. Amend Sec.  890.1402 in paragraph (a) by revising the definitions of 
``billing unit,'' ``paymaster,'' and ``tribal employer'' and adding a 
definition for ``tribally controlled schools'' in alphabetical order to 
read as follows:


Sec.  890.1402   Definitions and deemed references.

    (a) * * *
    Billing unit is a subdivision of the tribal employer's workforce 
that aligns tribal employees for purposes of administering FEHB 
enrollment and collection of payment. A billing unit may be either 
governmental or commercial or a combination of both. So long as a 
tribal employer purchases FEHB for at least one billing unit that is an 
Indian Tribe or tribal organization carrying out at least one program 
under the Indian Self-Determination and Education Assistance Act 
(ISDEAA) or Tribally Controlled Schools Act of 1988 (TCSA), or an urban 
Indian organization carrying out at least one program under title V of 
the Indian Health Care Improvement Act (IHCIA), the tribal employer may 
purchase FEHB for other billing units without regard to its programs.
* * * * *
    Paymaster is the entity or entities designated by OPM as 
responsible for receiving FEHB premiums from the tribal employer, 
forwarding premiums to the Employees Health Benefits Fund, and 
maintaining enrollment records for all participating tribal employers.
* * * * *
    Tribal employer is an Indian tribe or tribal organization (as those 
terms are defined in 25 U.S.C. chapter 18, ``Indian Health Care'') 
carrying out at least one program under the Indian Self-Determination 
and Education Assistance Act or the TCSA (25 U.S.C. 2501 et seq.); or 
an urban Indian organization (as that term is defined in 25 U.S.C. 
chapter 18, ``Indian Health Care'') carrying out at least one program 
under title V of the Indian Health Care Improvement Act. The tribe, 
tribal organization, or urban Indian organization is a tribal employer 
provided that it certifies entitlement to purchase FEHB according to 
the process described in subpart N. FEHB benefits that tribal employers 
are entitled to purchase for their tribal employees are set forth in 
this subpart and to the extent there exists any ambiguity or 
inconsistency between this subpart and other subparts of this part, the 
terms of this subpart will govern FEHB benefits available for purchase 
by tribal employers.
    Tribally controlled school is a school (as the term is defined in 
section 2511 of 25 U.S.C. chapter 27, ``Tribally Controlled School 
Grants'') that is operated by an Indian tribe or a tribal organization, 
enrolling students in kindergarten through grade 12, including a 
preschool; is not a local educational agency; and is not directly 
administered by the Bureau of Indian Affairs.
* * * * *

0
3. Amend Sec.  890.1404 by revising paragraphs (a)(1) and (2), (b)(5) 
and (9), and (e)(1) to read as follows:


Sec.  890.1404   Tribal employer election and agreement to purchase 
FEHB.

    (a) * * *
    (1) A tribal employer must purchase FEHB for at least one billing 
unit carrying out programs or activities under the tribal employer's 
ISDEAA or IHCIA contract or TCSA grant.
    (2) For so long as a tribal employer continues to purchase FEHB for 
at least one billing unit carrying out programs or activities under a 
tribal employer's ISDEAA or IHCIA contract or TCSA grant, the tribal 
employer may purchase FEHB for one or more billing units without regard 
to whether they are carrying out programs or activities under the 
tribal employer's ISDEAA or IHCIA contract or TCSA grant.
    (b) * * *
    (5) A certification and documentation demonstrating that the tribal 
employer is entitled to purchase FEHB as either: An Indian tribe or 
tribal organization carrying out at least one program under the Indian 
Self-Determination and Education Assistance Act or Tribally Controlled 
Schools Act of 1988; or an urban Indian organization carrying out at 
least one program under Title V of the Indian Health Care Improvement 
Act;
* * * * *
    (9) Agreement to provide notice to OPM in the event that the tribal 
employer is no longer carrying out at least one program under the 
ISDEAA or title V of IHCIA or the Tribally Controlled Schools Act of 
1988; and
* * * * *
    (e) * * *
    (1) An Indian tribe or tribal organization carrying out at least 
one program under the Indian Self-Determination and Education 
Assistance Act or under the Tribally Controlled Schools Act of 1988; or
* * * * *

[FR Doc. 2021-19042 Filed 9-2-21; 8:45 am]
BILLING CODE 6325-64-P


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