80 FR 74817 - Post-DOMA Survivor Annuitant Federal Employees Health Benefit Waiver Criteria

OFFICE OF PERSONNEL MANAGEMENT

Federal Register Volume 80, Issue 229 (November 30, 2015)

The U.S. Office of Personnel Management (OPM) has updated its Waiver Policy on the official OPM Web site \1\ to post the additional criteria OPM will consider when reviewing certain requests for waiver of the Federal Employees Health Benefit (FEHB) Program enrollment eligibility requirements. The updates to the Waiver Policy detail the criteria OPM will consider when reviewing waiver requests from individuals who are receiving a monthly survivor annuity as the surviving same-sex spouse of a Federal employee or annuitant who died on or before June 26, 2013. After an individual who is receiving a monthly annuity as the surviving same-sex spouse of a deceased Federal employee or annuitant is granted a waiver pursuant to section 8905(b) of title 5, U.S. Code, and the applicable procedures, the FEHB enrollment will be effective the first day of the first pay period that begins after the date on which that OPM granted the waiver. The individual may not be enrolled in FEHB retroactively, unless there is clear administrative error. ---------------------------------------------------------------------------

[Federal Register Volume 80, Number 229 (Monday, November 30, 2015)]
[Notices]
[Pages 74817-74818]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-30312]


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 OFFICE OF PERSONNEL MANAGEMENT


Post-DOMA Survivor Annuitant Federal Employees Health Benefit 
Waiver Criteria

AGENCY: U.S. Office of Personnel Management.

ACTION: Notice.

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SUMMARY: The U.S. Office of Personnel Management (OPM) has updated its 
Waiver Policy on the official OPM Web site \1\ to post the additional 
criteria OPM will consider when reviewing certain requests for waiver 
of the Federal Employees Health Benefit (FEHB) Program enrollment 
eligibility requirements. The updates to the Waiver Policy detail the 
criteria OPM will consider when reviewing waiver requests from 
individuals who are receiving a monthly survivor annuity as the 
surviving same-sex spouse of a Federal employee or annuitant who died 
on or before June 26, 2013. After an individual who is receiving a 
monthly annuity as the surviving same-sex spouse of a deceased Federal 
employee or annuitant is granted a waiver pursuant to section 8905(b) 
of title 5, U.S. Code, and the applicable procedures, the FEHB 
enrollment will be effective the first day of the first pay period that 
begins after the date on which that OPM granted the waiver. The 
individual may not be enrolled in FEHB retroactively, unless there is 
clear administrative error.
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    \1\ See: https://www.opm.gov/healthcare-insurance/healthcare/reference-materials/reference/annuitants-and-compensationers/#current.

FOR FURTHER INFORMATION CONTACT: Chelsea Ruediger, 
_____________________________________-
[email protected], (202) 606-0004.

SUPPLEMENTARY INFORMATION: Following the Supreme Court's June 26, 2013 
decision in United States v. Windsor, same-sex spouses became eligible 
family members under a Federal Employees Health Benefits (FEHB) Program 
enrollment. Because existing same-sex marriages were not recognized by 
the Federal government before the Windsor decision, all legal same-sex 
marriages that predated the Windsor decision were treated as new 
marriages. FEHB enrollees, which included Federal employees and 
annuitants, had 60 days from June 26, 2013 until August 26, 2013 to 
submit a request to change their FEHB eligibility enrollment from self-
only to self and family, to provide FEHB coverage to their same-sex 
spouse. See OPM Benefits Administration Letter 13-203 issued July 17, 
2013. https://www.opm.gov/retirement-services/publications-forms/benefits-administration-letters/2013/13-203.pdf. However, Federal 
employees and annuitants who died on or before the date of the Windsor 
decision, June 26, 2013, did not have an option to elect FEHB coverage 
for their same-sex spouse.
    In the ordinary course for a surviving spouse to be enrolled in 
FEHB after the death of the Federal employee or annuitant, the deceased 
Federal employee or annuitant must have been enrolled in Self and 
Family FEHB coverage that covered the surviving spouse at the time of 
death and the surviving spouse must be entitled to a monthly annuity as 
the survivor of a deceased Federal employee or annuitant. This means, 
absent a waiver of the FEHB eligibility requirements codified at 5 
U.S.C. 8905(b)(2), individuals who are now receiving a survivor annuity 
as the surviving same-sex spouse of a deceased employee or annuitant 
who died on or before June 26, 2013, are not eligible for FEHB 
enrollment.
    This notice outlines the updates to the OPM FEHB Eligibility Waiver 
Policy and identifies the criteria OPM will consider when reviewing 
waiver requests from individuals who are receiving a monthly survivor 
annuity benefit as the surviving same-sex spouse of a Federal employee 
or annuitant who died on or before June 26, 2013. It also prescribes 
the requirements and enrollment effective dates for these certain 
survivor annuitants to receive FEHB coverage.

Waiver Statute and Implementing Regulations

    Section 8905(b) of title 5, U.S. Code allows OPM to waive certain 
FEHB eligibility requirements for an individual if OPM:

``determines that, due to exceptional circumstances, it would be 
against equity and good conscience not to allow such individual to 
be enrolled as an annuitant \2\ in a health benefits plan under 
[chapter 89].''
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    \2\ For purposes of the Federal Employees Health Benefits 
program, ``annuitant'' has been defined to include, inter alia, a 
member of a family who receives an immediate annuity as the survivor 
of an employee. 5 U.S.C. 8901(3)(B).

    The implementing regulation, promulgated at 5 CFR 890.108, requires 
the annuitant to provide OPM with evidence of the following in order to 
be granted a waiver for FEHB enrollment:
    (1) The individual intended to have FEHB coverage as an annuitant 
(retiree);
    (2) The circumstances that prevented the individual from meeting 
the requirements of 5 U.S.C. 8905(b) were beyond the individual's 
control; and
    (3) The individual acted reasonably to protect his or her right to 
continue coverage into retirement.
    OPM does not want to penalize an individual who is receiving a 
survivor annuity as a same-sex spouse and who was not covered by a FEHB 
Self and Family plan before his/her spouse's death because prior to 
June 26, 2013, the provisions of the Defense of Marriage Act (DOMA) 
prevented OPM from recognizing the same-sex marriage. Therefore, we 
believe it would be against equity and good conscience not to grant a 
waiver request submitted by such individual. OPM will consider the 
criteria in 5 CFR 890.108 satisfied given the circumstances presented 
in the scope of this notice, provided that the appropriate 
documentation of marriage and death is submitted.
    OPM will accept the following to meet the requirements above:
    1. Proof of a legally valid same-sex marriage performed prior to 
June 26, 2013, to the deceased annuitant,
    2. Proof that the deceased annuitant died on or before June 26, 
2013, and
    3. Proof that the deceased annuitant was enrolled in FEHB at death.
    Individuals must submit requests for waiver of the FEHB enrollment 
eligibility requirements under 5 U.S.C. 8905(b) to OPM in writing. 
These waiver requests should be mailed to: Office of Personnel 
Management, Retirement Programs, Attn: Retirement Eligibility 
Services--HB Waiver Request, 1900 E Street NW.,Room 2416, Washington, 
DC 20415.
    In addition, the individual who is seeking a waiver of the FEHB 
eligibility requirements must have already been adjudicated eligible 
for a survivor annuity before he or she may seek a waiver under 5 
U.S.C. 8905(b).

Enrollment Effective Date

    After an individual who is receiving a survivor annuity as a same-
sex spouse

[[Page 74818]]

is granted a waiver pursuant to 5 U.S.C. 8905(b) and the procedures 
described above, the FEHB enrollment will be effective the first day of 
the first pay period that begins after the date on which that OPM 
granted the waiver. The survivor annuitant may not be enrolled in FEHB 
retroactively, unless there is clear administrative error.

U.S. Office of Personnel Management.
Beth F. Cobert,
Acting Director.
[FR Doc. 2015-30312 Filed 11-27-15; 8:45 am]
 BILLING CODE 6325-63-P