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.

Rules and Regulations Federal Register

21739 

Vol. 87, No. 71 

Wednesday, April 13, 2022 

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: Final rule. 

SUMMARY: This rule finalizes an interim 

rule which expanded access to 

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. This final rule adopts 

the interim final rule with minor 

clarifications. 

DATES: Effective on April 13, 2022. 

FOR FURTHER INFORMATION CONTACT: Julia 

Elam, Senior Policy Analyst, at 

julia.elam@opm.gov or (202) 606–2128. 

SUPPLEMENTARY INFORMATION: On 

September 3, 2021, OPM issued an 

interim final rule (86 FR 49461) 

amending 5 CFR part 890, to expand 

access to enrollment in the FEHB 

Program to Indian tribes or tribal 

organizations carrying out programs 

under the Tribally Controlled Schools 

Act of 1988 (TCSA) for their employees. 

OPM provided 60 days for the public to 

comment on the interim final rule. The 

comment period expired on November 

2, 2021. However, comments were not 

accepted on regulations.gov during the 

first 18 days of the comment period due 

to a technical error. Therefore, OPM 

published an extension (86 FR 60357) of 

the period for public comment on the 

interim final rule from November 2, 

2021 to November 20, 2021. 

OPM notes the following 

clarifications to the preamble of the 

interim final rule, 86 FR 49461. In the 

section on ‘‘Need for Regulatory 

Action,’’ footnotes 4 and 5 in the 

interim final rule should have been 

reversed. In the section on ‘‘Effects on 

Tribal Employees,’’ footnote 10 is listed 

twice. A new footnote 6 should be 

inserted after the sentence, stating 

‘‘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.’’ This footnote 6 

should have included a citation to a 

report located at https://www.cdc.gov/ 

mmwr/volumes/69/wr/mm6949a3.htm. 

The current Footnotes 6 should be 

renumbered as footnote 7, and current 

footnotes 7–10 should be renumbered as 

8–11. In the section on ‘‘Effects on Other 

Parties,’’ a footnote was made to the 

medical loss regulations without any 

text in accompanying footnote 13. The 

footnote should have included a citation 

to 77 FR 28790 and should be 

renumbered as footnote 12. 

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 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 

January 2022, 138 tribal employers 

participate in the FEHB Program, and 1l 

of those are tribally controlled schools. 

As of January 2022, the total tribal 

enrollment in the FEHB Program is 

34,333 with an estimated 63,000 

covered lives. 

Responses to Comments on the Interim 

Final Rule 

OPM received 2 comments from the 

members of the public. One commenter 

noted all school employees should have 

the opportunity to be protected during 

the pandemic and expanding 

enrollment in the Federal Employees 

Health Benefits Program will expand 

access. Another commenter also 

expressed support for the rule. OPM 

appreciates the commenters’ support for 

the regulation and notes that this rule 

applies only to TCSA grant schools; 

schools operating under the ISDEAA 

(Pub. L. 93–638) were already entitled to 

purchase FEHB for tribal employees. As 

noted earlier in the rule, OPM is 

providing a cite the medical loss 

regulations which is a clarification. No 

other changes are made. 

Expected Impact of the Final Rule 

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 


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21740 Federal Register / Vol. 87, No. 71 / Wednesday, April 13, 2022 / Rules and Regulations 

1 77 FR 28790. 

Program. As of January 2022, 138 tribal 

employers participate in the FEHB 

Program, and 11 of those are tribally 

controlled schools. As of January 2022, 

the total tribal enrollment in the FEHB 

Program is 34,333 with an estimated 

63,000 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 American 

Indian/Alaska Native (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 

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. 

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 1 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. 

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. 

Executive Orders 12866 and 13563 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distribute impacts, and equity). 

This final rule is not a significant 

regulatory action under E.O. 12866 and 

was not reviewed by OMB. 

Regulatory Flexibility Act 

OPM certifies this regulation will not 

have a significant economic impact on 

a substantial number of small entities. 

Federalism 

OPM has 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 

Control Number 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, Indians, Military 

personnel, Reporting and recordkeeping 

requirements, Retirement. 

Accordingly, OPM adopts the interim 

rule published September 3, 2021, at 86 

FR 49461, as final without change. 

Office of Personnel Management. 

Alexys Stanley, 

Regulatory Affairs Analyst. 

[FR Doc. 2022–07802 Filed 4–12–22; 8:45 am] 

BILLING CODE 6325–64–P 


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