83 FR 32191 - Federal Employees Health Benefits Program and Federal Employees Dental and Vision Insurance Program: Expiration of Coverage of Children of Same-Sex Domestic Partners; Federal Flexible Benefits Plan: Pre-Tax Payment of Health Benefits Premiums: Conforming Amendments

OFFICE OF PERSONNEL MANAGEMENT

Federal Register Volume 83, Issue 134 (July 12, 2018)

On October 30, 2013, OPM published final regulations in the Federal Register to expand coverage for children of same-sex domestic partners under the Federal Employees Health Benefits (FEHB) Program and the Federal Employees Dental and Vision Insurance Program (FEDVIP). The regulation allowed children of same-sex domestic partners living in states that did not allow same-sex couples to marry to be covered family members under the FEHB and the FEDVIP. Due to a subsequent Supreme Court decision legalizing same-sex marriage in all states, OPM published an interim final regulation on December 2, 2016, that created a regulatory exception that only allowed children of same-sex domestic partners living overseas to maintain their FEHB and FEDVIP coverage until September 30, 2018. OPM recognized that there were additional requirements placed on overseas federal employees that did not apply to other civilian employees with duty stations in the United States making it difficult to travel to the United States to marry their same-sex partners. Understanding that we have provided agencies with additional time for compliance given that overseas federal employees may not have been able to marry immediately following the Supreme Court decision, OPM is issuing a final rule removing references to domestic partners and domestic partnerships from the regulations. Based on the Supreme Court decision and the two additional year's lead time for domestic partners overseas to marry, the current language in the CFR is not needed and may be somewhat confusing. There is no change in coverage for children whose same-sex partners are married.

[Federal Register Volume 83, Number 134 (Thursday, July 12, 2018)]
[Rules and Regulations]
[Pages 32191-32193]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-14938]



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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. 

========================================================================


Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Rules 
and Regulations

[[Page 32191]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 890, 892, and 894

RIN 3206-AN34


Federal Employees Health Benefits Program and Federal Employees 
Dental and Vision Insurance Program: Expiration of Coverage of Children 
of Same-Sex Domestic Partners; Federal Flexible Benefits Plan: Pre-Tax 
Payment of Health Benefits Premiums: Conforming Amendments

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: On October 30, 2013, OPM published final regulations in the 
Federal Register to expand coverage for children of same-sex domestic 
partners under the Federal Employees Health Benefits (FEHB) Program and 
the Federal Employees Dental and Vision Insurance Program (FEDVIP). The 
regulation allowed children of same-sex domestic partners living in 
states that did not allow same-sex couples to marry to be covered 
family members under the FEHB and the FEDVIP. Due to a subsequent 
Supreme Court decision legalizing same-sex marriage in all states, OPM 
published an interim final regulation on December 2, 2016, that created 
a regulatory exception that only allowed children of same-sex domestic 
partners living overseas to maintain their FEHB and FEDVIP coverage 
until September 30, 2018. OPM recognized that there were additional 
requirements placed on overseas federal employees that did not apply to 
other civilian employees with duty stations in the United States making 
it difficult to travel to the United States to marry their same-sex 
partners. Understanding that we have provided agencies with additional 
time for compliance given that overseas federal employees may not have 
been able to marry immediately following the Supreme Court decision, 
OPM is issuing a final rule removing references to domestic partners 
and domestic partnerships from the regulations. Based on the Supreme 
Court decision and the two additional year's lead time for domestic 
partners overseas to marry, the current language in the CFR is not 
needed and may be somewhat confusing. There is no change in coverage 
for children whose same-sex partners are married.

DATES: This rule is effective on September 30, 2018.

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

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking

    The Federal Employees Health Benefits (FEHB) Program is 
administered by the Office of Personnel Management (OPM) in accordance 
with Title 5, Chapter 89 United States Code and our implementing 
regulations (title 5, parts 890, 892, 894 and title 48, chapter 16). 
The statute establishes the basic rules for benefits, enrollment, and 
participation in the Federal insurance programs.

Background

    The Federal Employees Health Benefits (FEHB) Program provides 
health insurance to about 8.2 million Federal employees, retirees, and 
their dependents each year. It is the largest employer-sponsored health 
insurance program in the country providing more than $53 billion in 
health care benefits annually. Coverage options available to eligible 
individuals include self only, self plus one or self and family 
coverage in an approved health benefits plan. Eligible family members 
include the spouse of an employee or annuitant and a child under 26 
years of age, including adopted children, stepchildren or foster 
children or a child regardless of age who is incapable of self-support 
because of mental or physical disability which existed before age 26.
    Effective January 1, 2014, the Office of Personnel Management (OPM) 
published the ``Federal Employees Health Benefits Program and Federal 
Employees Dental and Vision Insurance Program: Expanding Coverage of 
Children; Federal Flexible Benefits Plan: Pre-Tax Payment of Health 
Benefits Premiums: Conforming Amendments'' final rule (78 FR 64873) to 
extend FEHB and FEDVIP coverage to children of same-sex domestic 
partners of Federal employees and annuitants who would marry their 
partners but live in states that did not allow same-sex couples to 
marry. As the result of the June 26, 2015, Supreme Court Obergefell v. 
Hodges decision, all U.S. states now allow same-sex couples to marry. 
Accordingly, as of January 2016, coverage of an enrollee's 
stepchild(ren) is only allowed if the couple is married. OPM also 
published an interim final regulation (81 FR 86905) on December 2, 
2016. The rule amended Sec. Sec.  890.302 and 894.101 of title 5, Code 
of Federal Regulations. The amendments allow an employing agency to 
request, and for OPM to grant, a continued coverage exception for 
children of an employee's same-sex domestic partner living outside the 
United States. Any coverage under such an exception will not extend 
beyond September 30, 2018. The OPM recognized there were additional 
requirements placed on overseas employees (as compared to civilian 
employees with duty stations in the United States) making it difficult 
to travel to the United States to marry same-sex partners. Therefore, 
OPM created the authority to allow an exception for children of Federal 
employees in a domestic partnership and living outside of the United 
States. If requested by an enrollee's agency, coverage of children of 
same-sex domestic partners can be continued under self and family or 
self plus one enrollment in the FEHB and FEDVIP Programs. This 
regulation removes this continued coverage exception which expires for 
overseas employees on September 30, 2018.

Comments Received on the Interim Rule

    We received five comments on the Interim rule. All commenters were 
in support of the rule. No commenters recommended changes to the rule. 
Therefore, no changes have been made to this Final rule based on the 
comments received.

Expected Impact of Changes

    This rule eliminates all regulatory language in FEHB, FEDVIP and 
FedFlex that authorizes coverage for children of same-sex domestic 
partners, effective September 30, 2018. This rule amends

[[Page 32192]]

the regulations to remove the language that authorizes coverage of 
children of same-sex domestic partners since all enrollees now have the 
right to marry in the United States. The regulatory language that 
authorized coverage for children of same-sex domestic partners overseas 
is also being removed from the regulation effective September 30, 2018. 
There is no change to the population of children who have access to 
coverage based on this rule.

Executive Order 13563 and 12866 Requirements

    Executive Orders 13563 and 12866 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, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a not significant regulatory 
action under Executive Order 12866.

Paperwork Reduction Act Requirements

    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. With this rule there is 
no change to an existing OMB approved collection of information subject 
to the PRA--OMB No. 3206-0160, Health Benefits Election Form. The 
system of record notice for this collection is OPM/Central 1 Civil 
Service Retirement and Insurance Records, available at https://www.opm.gov/information-management/privacy-policy/sorn/opm-sorn-central-1-civil-service-retirement-and-insurance-records.pdf.

Regulatory Flexibility Act

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

Executive Order 13771: Reducing Regulation and Controlling Regulatory 
Costs

    This rule is not an E.O. 13771 regulatory action because this rule 
is not significant under E.O. 12866.

List of Subjects

5 CFR Part 890

    Administration and general provisions, Administrative practice and 
procedure, Administrative sanctions imposed against health care 
providers, Benefits for former spouses, Benefits for United States 
hostages in Iraq and Kuwait and United States hostages captured in 
Lebanon, Benefits in medically underserved areas, Contributions and 
withholdings, Department of Defense Federal Employees Health Benefits 
Program demonstration project, Employee benefit plans, Enrollment, 
Government employees, Health benefits plans, Limit on inpatient 
hospital charges, physician charges, and FEHB benefit payments, 
Reporting and recordkeeping requirements, Retirement, Temporary 
continuation of coverage, Temporary extension of coverage and 
conversion, Transfers from retired FEHB Program.

5 CFR Part 892

    Administrative practice and procedure, Government employees' health 
insurance, Pre-tax payment of health benefits premiums, Taxes, Wages.

5 CFR Part 894

    Administrative practice and procedure, Government employees, Health 
insurance, Taxes, Wages.

U.S. Office of Personnel Management.
Jeff T.H. Pon,
Director.

    Accordingly, OPM is amending title 5, Code of Federal Regulations 
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; 
Pub. L. 111-148, as amended by Pub. L. 111-152.


0
2. In Sec.  890.302, revise paragraphs (a)(2)(iii) and (b)(2) and 
remove paragraphs (b)(3) through (7) to read as follows:


Sec.  890.302   Coverage of family members.

    (a) * * *
    (2) * * *
    (iii) Children are entitled to receive benefits under only one 
enrollment regardless of whether the children qualify as family members 
under the enrollment of both parents or of a parent and a stepparent 
and regardless of whether the parents are married, unmarried, divorced, 
or legally separated. To ensure that no person receives benefits under 
more than one enrollment, each enrollee must promptly notify the 
insurance carrier as to which family members will be covered under his 
or her enrollment. These individuals are not covered under the other 
enrollment.
    (b) * * *
    (2) For purposes of this part, the term ``stepchild'' refers to the 
child of an enrollee's spouse and shall continue to refer to such child 
after the enrollee's divorce from the spouse or death of the spouse, so 
long as the child continues to live with the enrollee in a regular 
parent-child relationship.
* * * * *

PART 892--FEDERAL FLEXIBLE BENEFITS PLAN: PRE-TAX PAYMENT OF HEALTH 
BENEFITS PREMIUMS

0
3. The authority citation for part 892 continues to read as follows:

    Authority:  5 U.S.C. 8913; 5 U.S.C. 1103(a)(7); 26 U.S.C. 125.


0
4. In Sec.  892.101, the definition of a ``Qualifying life event'' is 
amended by revising the introductory text to read as follows:


Sec.  892.101   Definitions.

* * * * *
    Qualifying life (QLE) event means an event that may permit changes 
to your FEHB enrollment as well as changes to your premium conversion 
election as described in Treasury regulations at 26 CFR 1.125-4. Such 
events include the following:
* * * * *

0
5. Section 892.102 is revised to read as follows:


Sec.  [thinsp]892.102   What is premium conversion and how does it 
work?

    Premium conversion is a method of reducing your taxable income by 
the amount of your contribution to your FEHB insurance premium. If you 
are a participant in the premium conversion plan, Section 125 of the 
Internal

[[Page 32193]]

Revenue Code allows you to reduce your salary (through an employer 
allotment) and provide that portion of your salary back to your 
employer. Instead of being paid to you as taxable income, this allotted 
amount is used to purchase your FEHB insurance for you. The effect is 
that your taxable income is reduced. Because taxable income is reduced, 
the amount of tax you pay is reduced. You save on Federal income tax, 
Social Security and Medicare tax and in most States and localities, 
State and local income taxes.

PART 894--FEDERAL EMPLOYEES DENTAL AND VISION INSURANCE PROGRAM

0
6. The authority citation for part 894 continues to read as follows:

    Authority:  5 U.S.C. 8962; 5 U.S.C. 8992; Subpart C also issued 
under section 1 of Pub. L. 110-279, 122 Stat. 2604.

0
7. In Sec.  894.101, the definitions for ``Domestic partner'' and 
``Domestic partnership'' are removed and the definition for 
``Stepchild'' is revised to read as follows:


Sec.  894.101   Definitions.

* * * * *
    Stepchild means your spouse's child born within or outside marriage 
or his or her adopted child. The child of your spouse shall continue to 
be considered your stepchild after your divorce from your spouse or the 
death of your spouse so long as the child continues to live with you in 
a regular parent-child relationship.
* * * * *

0
8. In Sec.  894.403, paragraph (a) is revised to read as follows:


Sec.  894.403   Are FEDVIP premiums paid on a pre-tax basis?

    (a) Your FEDVIP premiums are paid on a pre-tax basis (called 
premium conversion) if you are an active employee, your salary is 
sufficient to make the premium allotments, and your agency will be able 
to make pre-tax allotments.
* * * * *
[FR Doc. 2018-14938 Filed 7-11-18; 8:45 am]
 BILLING CODE 6325-63-P