SAMPLE COMMENTS to respond to OPM on the FEHB Proposal

These comments are responsive to OPMs proposed rule modifying 5 CFR Part 890
regarding FEHB
Lack of data showing need for this rule. The proposal claims that the rule is
needed due to budgetary implications from temporary employees who elect to
participate in FWHB coverage and go into LWOP based on the intermittent nature of
their work. However, no evidence is provided that this statement is based in any
factual data. In my experience, when people take a temporary job, they do not then
subsequently take LWOP.
Overly broad. The proposed regulation is too broad, especially considering that the
rule requires agencies to make a determination which will apply to all employees.
Below are a couple of examples of reasons why employees go into LWOP or nonpay
status:

Employees on LWOP for Emergencies - As we have seen recently, extreme

natural events have affected geographic pockets of our workforce. Instituting
this change to regulations could very well place someone having to cope with
an emergency at home (flood, fire, hurricane, tornado, etc.) in the position of
having to pay for health insurance when there is no income coming into the
household and upheaval in a community. To add to their burden by placing
the specter of losing their health insurance over their heads is unfair. Making
a payment or meeting a timeframe for appeal will be the last thing on an
employees mind.
Employees awaiting a disability retirement determination - If an employee
has applied for a disability retirement and has to cover their premiums by
direct payment to the government, the government will ultimately need to
repay the employee for those premiums, if the retirement is approved.
Permanent Seasonal Employees (PSEs) - Unlike temporary seasonal
employees, PSEs are are permanent employees who are placed in nonpay
status annually as the end of a season and return to pay status annually, at
the beginning of the next season. There is every reasonable expectation that
these employees will return to work each year and repay employee portions
of health insurance premiums.
If a PSE were unable to afford to pay the employee portion of their FEHB (or
simply miss a payment and be terminated for missing a premium payment),
and thus opt out of employer provided health care plans while not receiving a
paycheck, they are forced into the private health insurance arena. This could
put them in the surreal position of having to buy higher cost private health
insurance or pay a penalty fee to NOT have insurance.
Furthermore, PSEs who are unable to pay the premiums directly will be
required to be enrolled in the FEHB for much longer (only actual time enrolled
is counted) in order to meet the 5 year enrollment requirement in order to
continue coverage into retirement. This is a very real concern for employees
who spend their whole careers as PSEs.

Other instances of nonpay status Employees who enter LWOP are often
facing personal crises. It is not a time when they will be focused on returning
paperwork to ensure that they do not lose health insurance.

Tax implications. If an agency determines that they will require employees to

directly pay their FEHB premiums, the employees will be forced to do so from posttax earnings.
A paperwork nightmare with life-changing outcomes. I am very concerned
that the amount of paperwork needed to ensure that employees who wish to do so
are able to continue their health insurance. How will agencies make this happen in
an efficient manner where they can guarantee there will be no mistakes and
employees are erroneously terminated from FEHB?
Suggested Changes to the Proposed Rule.
OPM has not made a case that there is significant burden created by covering FEHB
premiums for employees who are in LWOP/nonpay status. However, a rule that
pertains only to temporary employees in LWOP or other nonpay status would
resolve the issue of the proposed rule being overly broad. It would address the
stated need for the change, while avoiding collateral damage to other employees
who may take LWOP for a variety of reasons.
If the rule is applied to permanent employees, exclusions for PSEs, employees on
LWOP pending a disability retirement determination, and employees facing natural
disasters or other major emergencies must be included.
Finally, agencies should be given the discretion to determine whether specific
categories of employees must directly pay their premiums while in LWOP/nonpay
status. This will allow agencies to determine whether to cover the cost of FEHB
premiums based on any unique features of their workforce.