81 FR 83110 - Federal Employees Health Benefits Program Coverage for Certain Firefighters and Intermittent Emergency Response Personnel

OFFICE OF PERSONNEL MANAGEMENT

Federal Register Volume 81, Issue 224 (November 21, 2016)

The Office of Personnel Management (OPM) is issuing a final rule to amend the Federal Employees Health Benefits (FEHB) Program regulations to make certain firefighters hired under a temporary appointment and certain intermittent emergency response personnel eligible to be enrolled in a health benefits plan under the FEHB Program. These amendments were the subject of interim rules published on July 19, 2012 and November 14, 2012.

[Federal Register Volume 81, Number 224 (Monday, November 21, 2016)]
[Rules and Regulations]
[Pages 83110-83112]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-27901]



[[Page 83110]]

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 890

RIN 3206-AM66


Federal Employees Health Benefits Program Coverage for Certain 
Firefighters and Intermittent Emergency Response Personnel

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing a final 
rule to amend the Federal Employees Health Benefits (FEHB) Program 
regulations to make certain firefighters hired under a temporary 
appointment and certain intermittent emergency response personnel 
eligible to be enrolled in a health benefits plan under the FEHB 
Program. These amendments were the subject of interim rules published 
on July 19, 2012 and November 14, 2012.

DATES: This rule is effective November 21, 2016.

FOR FURTHER INFORMATION CONTACT: Michael W. Kaszynski, Senior Policy 
Analyst at [email protected] or (202) 606-0004.

SUPPLEMENTARY INFORMATION: This final rule provides eligibility for 
health insurance coverage under the Federal Employees Health Benefits 
(FEHB) Program to certain wildfire protection employees and certain 
intermittent emergency response personnel. The Federal Government has a 
critical need to hire and quickly deploy qualified firefighters, other 
fire protection personnel, and certain intermittent emergency response 
personnel to areas of the country where disasters caused by humans or 
nature require their services. The Federal agencies that routinely 
deploy firefighters to respond to these disasters, including the 
Departments of Agriculture and Interior, have used temporary 
appointment authorities which provide the flexibility they need to 
quickly increase their firefighting workforce during wildfire 
emergencies and then to decrease the workforce when the emergencies are 
resolved.
    Pursuant to 5 U.S.C. 8913(b), OPM has broad authority to prescribe 
the conditions under which employees are eligible to enroll in the FEHB 
Program and is empowered to include or exclude employees on the basis 
of the nature and type of their employment or conditions pertaining to 
their appointments, including the duration of the appointments. This 
regulation allows agencies to make FEHB coverage offers to these 
firefighters and fire protection personnel, as well as their families, 
pursuant to OPM's broad regulatory authority under 5 U.S.C. 8913(b), 
allowing them to obtain health insurance through their employers on day 
one of employment.
    OPM deems the extension of offers of coverage to be appropriate 
because firefighters face unique hazards and risks to their health. The 
day-to-day job of a firefighter involves frequent exposure to 
environmental risk factors that can precipitate the onset of severe and 
life-threatening diseases like cancer. See Guidotti TL, Evaluating 
causality for occupational cancers: the example of firefighters. Occup. 
Med. (Lond). 2007;57;466-71. The nature of this work necessarily 
involves intense physical stress that can result in potentially fatal 
cardiac events, job-related injuries, and an adverse psychological 
impact. See U.S. Dep't of Homeland Security, U.S. Fire Admin., Fire-
Related Firefighter Injuries Reported to NFIRS, Topical Fire Report 
Series, Vol. 11, Issue 7, February 2011, available at http://www.usfa.fema.gov/downloads/pdf/statistics/v11i7.pdf; Kales SN, 
Soteriades ES, Christoudias SG, Christiani DC, Firefighters and on-duty 
deaths from coronary heart disease: a case control study. Environ. 
Health. 2003; 2(1):14; Carey MG, Al-Zaiti SS, Dean GE, Sessanna L, 
Finnell DS, Sleep Problems, Depression, Substance Use, Social Bonding, 
and Quality of Life in Professional Firefighters. J. Occup. Environ. 
Med. 2011; 53(8):928-33.
    Although firefighters are eligible for workers' compensation for 
injuries suffered on the job, they nonetheless have a heightened need 
for health insurance coverage, so that they can obtain preventive care 
and benefit from early detection of the chronic and life-threatening 
conditions from which they face increased risk, in addition to 
receiving treatment for illnesses and injuries from which they are 
currently suffering. Providing firefighters coverage under the FEHB 
Program acknowledges the unique hazards and increased risks that they 
face for their Federal service and enhances the quality of their lives 
by ensuring access to the medical benefits necessary to promote 
prevention and early intervention, as well as treatment for diseases 
that cannot be prevented.
    In addition, in order to protect the public health and safety, the 
Departments of Agriculture and Interior have had a critical need over 
the years for experienced firefighting personnel. The agencies wish not 
only to recruit experienced firefighters this year, but also to 
maintain their interest in returning to serve during subsequent fire 
seasons. Offering health insurance coverage on day one of employment 
will support these Departments' efforts to recruit and retain qualified 
firefighters and fire protection personnel for both this year's and 
future fire seasons. OPM is working closely with the Departments of 
Agriculture and Interior to ensure firefighters are able to promptly 
enroll for FEHB coverage with minimal burden.
    OPM recognizes that there may be other groups of employees not 
currently eligible for the FEHB Program because of the nature of their 
work schedules, but who are similarly situated to firefighting 
personnel in that they perform emergency response services. 
Accordingly, OPM has also added a new subsection (i) to its regulations 
that permits agencies to request that OPM extend FEHB coverage to such 
employees. OPM intends to construe this subsection narrowly, applying 
it only to employees engaged in emergency response services similar to 
the services being performed by those responding to the wildfires, and 
only when requested by their employing agencies.
    On July 19, 2012, OPM issued an interim final regulation to extend 
eligibility for health insurance coverage and a full Government 
contribution under the FEHB Program to temporary firefighters and fire 
protection personnel at 77 FR 42417. In addition, recognizing that 
there may be other groups of employees not currently covered by the 
FEHB Program because of the temporary nature of their appointments, the 
interim rule allowed agencies to request that OPM extend FEHB coverage 
to similarly situated temporary employees. We also solicited comments 
from the public regarding whether OPM should explicitly provide FEHB 
coverage to employees who are appointed pursuant to section 306(b)(1) 
of the Robert T. Stafford Disaster Relief and Emergency Assistance Act 
(42 U.S.C. 5149(b)(1)) (``Stafford Act'') to respond to major disasters 
and emergencies declared by the President.
    In the meantime, a major natural disaster, Hurricane Sandy, struck 
the East Coast of the United States at the end of October 2012. The 
storm resulted in loss of life and major destruction of property across 
a wide swath of the Eastern seaboard. In affected areas, 8.5 million 
people went without power, gasoline was scarce, and massive flooding 
and cold temperatures increased the hardship on those living in the 
storm's path. President Obama declared that major disasters had

[[Page 83111]]

occurred in Connecticut, New York, New Jersey, and Rhode Island, making 
disaster assistance available to those in the areas heaviest hit by the 
storm. The President also signed Federal emergency declarations for 
Connecticut, New York, New Jersey, New Hampshire, Massachusetts, 
Virginia, West Virginia, Maryland, Pennsylvania, Delaware, Rhode 
Island, and the District of Columbia.
    Federal agencies, including the Federal Emergency Management Agency 
(FEMA), worked with state and local partners to respond to this 
emergency. Over 3,000 FEMA employees were immediately deployed to the 
hardest hit areas. These FEMA workers may have been exposed to 
dangerous conditions, and put their health and safety at risk in 
assisting others. Many of FEMA emergency employees continue to work 
schedules that prevent them from being eligible for FEHB coverage on 
day one of employment due to OPM's regulations, specifically 5 CFR 
890.102(c)(3), 890.102(j)(1), and 890.102(j)(2). Pursuant to 5 U.S.C. 
8913(b), OPM has broad authority to prescribe the conditions under 
which employees are eligible to enroll in the FEHB Program. OPM may 
include or exclude employees on the basis of the nature and type of 
their employment or conditions pertaining to their appointments, ``such 
as short-term appointment, seasonal or intermittent employment, and 
employment of like nature.'' Id. Intermittent emergency response 
employees often work in conditions that may expose them to various 
environmental hazards, similar to the wildland firefighters covered by 
the regulation described above. In light of the need for agencies to 
attract and bring emergency workers on board quickly and in recognition 
of the hazardous conditions those employees often face, OPM concluded 
in 2012 that its current policy of categorically excluding intermittent 
employees from FEHB coverage was no longer in the public interest and 
should be changed. Therefore, on November 14, 2012, OPM issued an 
interim final regulation at 77 FR 67743 to allow agencies to request 
FEHB coverage for intermittent employees engaged in emergency response 
and recovery work as defined by the Stafford Act. Since the publication 
of that rule, OPM also expanded coverage under the FEHB Program to 
certain temporary, seasonal and intermittent employees who are expected 
to work at least 130 hours per calendar month for at least 90 days.
    In addition, if OPM grants any such requests, it is reserving the 
authority to limit FEHB coverage for intermittent employees only to the 
periods during which they are in a pay status. This would promote 
parity between intermittent employees and temporary employees like the 
wildland firefighters, who receive FEHB coverage only when called up 
for duty. It would also allow OPM the discretion to craft an 
appropriate approach to health insurance coverage based on the 
potentially diverse work schedules of intermittent employees.
    We have received a number of comments on our two interim final 
regulations from Federal agencies, an employee association, a trade 
association of carriers, and a number of individual employees and union 
members. Most commenters expressed support for the interim final 
regulations. The following summarizes and responds to the remaining 
comments:
    Comment: In many cases, there is no way to identify positions whose 
incumbents provide emergency response services for wildland fire 
protection. The language in Benefits Administration Letter (BAL) 12-203 
seems to contradict, and be superior to, that of the rule itself in two 
important ways. First, in the rule the determination of eligibility is 
based on identification of positions, whereas in the Letter it is based 
on duties actually performed. Second, in the rule the determination of 
eligible positions is made by OPM, whereas in the Letter the 
determination of eligible duties is made by agencies. Clearly, the only 
way in which eligibility of militia members may be determined 
consistent with the rule's intent is by the process articulated in the 
Letter: By consideration of duties by agencies.
     Response: The new rule at 5 CFR 890.102(h) states:
    Notwithstanding paragraphs (c)(1) and (2) of this section, an 
employee who is in a position identified by OPM that provides emergency 
response services for wildland fire protection is eligible to be 
enrolled in a health benefits plan under this part.
    BAL 12-203 clarifies the intent of the new rule with the following 
critically relevant statements:
    ``The following positions [. . .] are covered for purposes of 5 CFR 
890.102(h): Any position (including supervisory positions) the duties 
of which include high risk or life-threatening work to control and 
extinguish wildland fires, to rescue persons endangered by fire, or to 
reduce or eliminate potential fire hazards, or involving the provision 
of direct on-site assistance to others engaged in such work.
    ``[I]n determining whether to extend health benefits coverage for 
employees, agencies should focus on the duties performed, regardless of 
the position's title, occupational series, grade level or geographic 
location.''
    Therefore, there is no conflict between the rule and the BAL. The 
rule correctly points out that OPM has the ultimate authority to make 
eligibility determinations while the BAL delegates this authority to 
the agencies as it does for most FEHB Program eligibility 
determinations.
    Comment: Eligibility should be expanded to other groups.
    Response: The commenters believe that expanding the scope of 
coverage to include other temporary seasonal employees in the final 
rule is warranted. Since the publication of the interim final 
regulation, OPM expanded coverage under the FEHB Program to certain 
temporary, seasonal and intermittent employees. The final regulation is 
available at 79 FR 62325 and was published October 17, 2014. This 
regulation allows agencies to provide offers of FEHB coverage to 
firefighters and emergency response personnel identified by OPM that 
are not eligible under the FEHB modification rule due to their work 
schedules.
    Comment: Are these new groups eligible for other Federal Benefit 
Programs?
    Response: The regulation does not create eligibility under any 
other benefit program.
    Comment: One trade association of carriers questioned the 
requirements for eligibility for enrollment under this new authority 
and felt that they needed clarification to know when to terminate 
enrollments.
    Response: In the FEHB Program, employing offices are responsible 
for making enrollment and coverage termination decisions. Carriers must 
process enrollment and termination transactions based on agency 
determinations as they do today.
    OPM has considered these comments and determined that the interim 
final regulations should be finalized and published with no changes.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because the regulation 
only adds additional groups to the list of groups eligible for coverage 
under the FEHB Program.

[[Page 83112]]

Executive Orders 13563 and 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Orders 13563 and 12866.

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.

List of Subjects in 5 CFR Part 890

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

U.S. Office of Personnel Management.
Beth F. Cobert,
Acting Director.

    Accordingly, OPM is amending 5 CFR part 890 as follows:

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

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

    Authority:  5 U.S.C. 8913; Sec. 890.301 also issued under sec. 
311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under 
section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also 
issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 
8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c 
and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-
513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under 
sections 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105-33, 
111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061.


0
2. Section 890.102 is amended by revising paragraphs (h) and (i) to 
read as follows:


Sec.  890.102  Coverage.

* * * * *
    (h) Notwithstanding paragraphs (c)(1) and (2) of this section, an 
employee who is in a position identified by OPM that provides emergency 
response services for wildland fire protection is eligible to be 
enrolled in a health benefits plan under this part.
    (i) Notwithstanding paragraphs (c)(1) through (3) of this section, 
upon request by the employing agency, OPM may grant eligibility to 
employees performing similar types of emergency response services to 
enroll in a health benefits plan under this part. In granting 
eligibility requests, OPM may limit the coverage of intermittent 
employees under a health benefits plan to the periods of time during 
which they are in a pay status.
* * * * *
[FR Doc. 2016-27901 Filed 11-18-16; 8:45 am]
 BILLING CODE 6325-63-P