In Defense of Temporary Federal Employees’ FEHB Eligibility

Last Friday, the Washington Post reported that Senator Tom Coburn (R-OK) questioned the legality of a recent Office of Personnel Management (OPM) proposal to extend eligibility for coverage under the Federal Health Insurance Benefits Program (FEHBP) to certain temporary federal employees. Specifically, Senator Coburn questioned whether this rule is consistent with federal law that appears to prohibit making temporary employees eligible before they have served a year and appears to prohibit the government from making any contribution to premiums.
The OPM proposal in question follows a rule implemented in 2012, under which only those temporary employees whose duties included wildland firefighting or emergency response became eligible. The proposed rule would extend eligibility to temporary employees regardless of the duties they are hired to perform. 
In Senator Coburn’s questioning of legality, the Senator relied on Sec. 8906a of Title 5, United States Code.  There are no such prohibitions in Sec. 8906a.  This appears to be an artificial political attack on a routine, good-government rule change.
Sec. 8906a was put in place by Title III of the Federal Employees Health Benefits Amendments Act of 1988.  The provision was enacted to add employee benefits, not to prohibit them.  OPM at the time was using its regulatory discretion to deny long-serving temporary employees access to federal health insurance.  OPM’s authority to allow or prohibit access resides in Sec. 8913(b) of Title 5, which states that OPM “may exclude an employee on the basis of the nature and type of his employment or conditions pertaining to it, such as short-term appointment, seasonal or intermittent employment, and employment of like nature.”
Congress acted back in 1988 because current limits on the use of temporary employment did not exist at the time. Temporary employees could work for many years and never become eligible for health insurance. The Federal Employees Health Benefits Amendments Act of 1988 addressed this inequity by adding the benefit for such employees at Sec. 8906a, the provision cited by Senator Coburn.  
There was no intent by Congress and there is no language in the provision to deny benefits or to otherwise limit OPM’s authority under Sec. 8913(b).  The language of Sec. 8906a states that OPM “shall prescribe regulations for offering health benefits plans to temporary employees… [who] shall have completed 1 year of continuous service…,” albeit under the condition that they must pay the entire premium.  The only limit it places on OPM’s broad authority under Sec. 8913(b) is that it prohibits OPM from denying eligibility to certain temporary employees.  It very clearly does not limit OPM’s authority:
  • to grant eligibility for FEHBP on the basis of the nature and type of employment, or
  • to “prescribe the manner and conditions under which an employee is eligible to enroll.”
The proposed rule is consistent with OPM’s authority under Sec. 8913(b).  It would extend eligibility to a larger group of employees than are described in Sec. 8906a, such as seasonal and intermittent employees, with the government paying the same share of premiums as it pays for career employees.  In addition, it would extend eligibility under these same “manners and conditions” to the Sec. 8906a (continuously serving) employees as well.  
The proposed rule does not contradict Sec. 8906a.  Under Sec. 8906a, temporary employees with one or more years of service may elect to enroll and pay the full premium.  Under the new rule proposed under the authority at Sec. 8913(b), they may elect to enroll and pay the employee’s share of the premium.  There is no contradiction in providing two options.
Employees designated as seasonal or intermittent, such as wildland firefighters, can work for many years.  OPM has used its legal authority to provide firefighters with coverage and proposes to do the same thing to employees who perform other duties.  Both of these changes would be blocked if the flawed assertion of illegality were to be adopted.  We sincerely hope that these long-overdue changes are not derailed by political infighting and frivolous legal objections.

Mark Davis
Vice-President, National Federation of Federal Employees