MGMT 520- Legal, Political, and Ethical Dimensions of Business

Keller Graduate School of Management

May 15, 2014

I choose “Federal Employees Health Benefits Program Coverage for Certain Intermittent Employees”. The Office of Personnel Management controls this proposed regulation. I am pursuing my MBA with a concentration in accounting, but my second choice would have been HealthCare management so by choosing this regulation I will have a better understanding of the type of regulations currently in place or being proposed. At this time the regulation proposed does not have a direct impact on myself, nor the business I am in. I have attached a copy of the proposed regulation at then end of this assignment. The Office of Personnel Management is proposing to temporary adjust the Federal Employee Health Benefits Program regulations to make sure employees who work sporadic schedules are eligible to be enrolled in a health benefits under the Federal Employees Health Benefits Program (FEHBP). The Office of Personnel Management intentions on proposing this regulation is to allow agencies such as the Federal Emergency Management Agency also known as FEMA to apply to OPM for “authorization to offer FEHBP coverage to intermittent employees engaged in emergency response functions.” The Office of Personnel Management is proposing to provide health coverage to those who work as temps/part time in emergency response functions. This proposal should be passed not only temporary but permanently. Agencies and companies look for employees as temps or part time workers because in most cases they don’t have to provide employees with health insurance. Coming from a middle class family I have seen family members and friends sufferings because they are unable to go to the doctor since they don’t have medical insurance. The comments start date was November 14, 2012 and are due by January 14, 2013 11:59PM. Once I have submitted my comment on the proposed regulation I can challenge the validity after it becomes a law. In this particular case I must comment during November 14, 2012 to January 14, 2012, in order to challenge regulation. The public comment period cannot be less then 30 days and it’s open to private citizens, businesspeople, corporations, government officials and industry representatives. If the proposal passes I can use five legal theories in an attempt to overturn or declare the regulation invalid in court. One legal theory I can use is the Arbitrary and Capricious, which is an abuse of discretion or is a violation of some other law. The agency must show evidences to support to the proposed rule. If there’s no evidence to support the proposed rule, this where it can be an abuse of discretion or violation. The second legal theory that can be used to overturn a regulation is by completing a substantial evidence test, which is that a regulation is unsupported by substantial evidence. This theory requires more convincing evidence then proof or basis for the regulation. The third legal theory is that an agency did not obey the APA requirements of notice, publication and public comment/input. A fourth theory is that a regulation is unconstitutional. The regulations that are challenged through constitutional grounds deal with an agency authority to search records or that impose discriminatory requirements for licensing professionals. The final theory to challenge a regulation is ultra vires, which means beyond its powers. This theory states that the regulation goes beyond the power given to the agency in permitting the act. If the regulation “Federal Employees Health Benefits Program Coverage for Certain Intermittent Employees” was to pass and I would want it overturned the two best theories to challenge the regulation would the agency did not follow APA requirements and Arbitrary and Capricious. Even though the regulation was proposed last week it could easily be states that the agency did not have enough notices, publications and/or public comment inputs, therefore did not follow the APA requirements. I would also use the theory of substantial evidence test. I the agency should provided further convincing evidence as to why changes should take place on the “Federal Employees Health Benefits Program Coverage for Certain Intermittent Employees”. Even though it uses Hurricane Sandy as substantial evidence, which in this case hits home to many people, I do believe there’s a lack of substantial evidence.
[Federal Register Volume 77, Number 220 (Wednesday, November 14, 2012)]
[Rules and Regulations]
[Pages 67743-67744]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27743]

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.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
Week.
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Federal Register / Vol. 77, No. 220 / Wednesday, November 14, 2012 /
Rules and Regulations
[[Page 67743]]
OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 890

RIN 3206-AM74

Federal Employees Health Benefits Program Coverage for Certain Intermittent Employees

AGENCY: Office of Personnel Management.

ACTION: Interim final rule.
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SUMMARY: The United States Office of Personnel Management (OPM) is issuing an interim final rule to amend the Federal Employees Health Benefits Program (FEHBP) regulations to make certain employees who work on intermittent schedules eligible to be enrolled in a health benefits plan under the FEHBP. This rule is intended to allow agencies such as the Federal Emergency Management Agency (FEMA) to apply to OPM for authorization to offer FEHBP coverage to intermittent employees engaged in emergency response functions.

DATES: This rule is effective November 9, 2012. OPM must receive comments on or before January 14, 2013.
ADDRESSES: Send written comments to Michael W. Kaszynski, Senior Policy
Analyst, Planning and Policy Analysis, U.S. Office of Personnel Management, Room 3415, 1900 E Street NW. Washington, DC; or FAX to (202) 606-4640 Attn: Michael Kaszynski. You may also submit comments using the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Michael W. Kaszynski at
Michael.Kaszynski@opm.gov or (202) 606-0004.
SUPPLEMENTARY INFORMATION: On July 17, 2012, OPM issued an interim final regulation to extend eligibility for health insurance coverage under the Federal Employees Health Benefits program (FEHBP) to temporary firefighters and fire protection personnel. 77 FR 42417. In addition, in recognition of the fact that there may be other groups of employees not currently covered by the FEHB program because of the temporary nature of their appointments, the 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 FEHBP 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. OPM is currently reviewing the comments it received in response to its interim final regulation.

Federal agencies, including the Federal Emergency Management Agency (FEMA), have worked and continue to work with state and local partners to respond to this Hurricane Sandy. Over 3,000 FEMA employees were immediately deployed to the hardest hit areas. These FEMA workers may be exposed to dangerous conditions, and put their health and safety at risk in order to assist those who have been affected by the storm. Because many of these FEMA employees work intermittent schedules within the meaning of 5 CFR 340.403, they are not eligible for FEHBP coverage under OPM's regulations, specifically 5 CFR 890.102(c)(3).

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. It is empowered to 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 wild-land 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 has concluded that its current policy of categorically excluding intermittent employees from FEHBP coverage is no longer in the public interest and should be changed. Therefore, OPM is issuing this interim regulation to allow agencies to request FEHBP coverage for intermittent employees engaged in emergency response and recovery work as defined by the Stafford Act. In addition, if OPM grants any such requests, it is reserving the authority to limit FEHBP 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 wild-land firefighters, who receive FEHBP 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.

Waiver of Proposed Rulemaking

OPM is issuing this regulation as an interim final rule. Under section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.), an agency may issue a final rule without first publishing a general notice of proposed rulemaking when it determines, for good cause, that notice and public comment are impracticable, unnecessary, or contrary to the public interest. We have determined that this standard is satisfied. Hurricane Sandy left death and massive destruction in its wake. Many of the people in the storm's path continue to be exposed both to the elements (just as colder weather has arrived) and to inherently hazardous conditions where they are located and are thus in immediate need of emergency assistance. FEMA is playing a major role, working with state and local partners, to provide this assistance. Therefore, the federal government has a critical need to deploy additional qualified emergency response workers to serve the American people. Furthermore, emergency response workers are voluntarily exposing themselves to hazardous working conditions every day. They have a need for health insurance coverage to obtain preventive care, to allow for early detection of potentially serious conditions, and to address any health issues that may arise as a result of their service. The regulatory obstacle preventing such agencies as FEMA from submitting a request for FEHBP coverage of these men and women should thus be eliminated without delay.

Because of these conditions, OPM has determined that it would be impracticable, unnecessary, and contrary to the public interest to delay putting the provisions of this interim final regulation in place until a public notice and comment process has been completed. We find good cause to waive the notice of proposed rulemaking and to issue this final rule on an interim basis. We will accept public comments on this interim final rule for 60 days.

We are also dispensing with the usual requirement that a new rule not take effect until 30 days after it is issued. Instead, this rule is effective immediately upon public display. Immediate effectiveness is authorized because this is a substantive rule granting an exception to the prohibition on providing health insurance coverage to intermittent employees. See 5 U.S.C. 553(d)(1). Moreover, for the reasons set forth above, there is good cause to make this rule effective immediately.

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 FEHB.

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 Parts 890 Administrative practice and procedure, Government employees, Health facilities, Health insurance, Health professions, Reporting and recordkeeping requirements, Retirement. U.S. Office Of Personnel Management.
John Berry,
Director.

Accordingly, OPM is amending title 5, Code of Federal Regulations,
Chapter I 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.

2. Section 890.102 is amended by revising paragraph (i) to read as follows:
Sec. 890.102 Coverage.
* * * * * (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. 2012-27743 Filed 11-9-12; 4:15 pm]
BILLING CODE 6325-63-P

http://www.regulations.gov/#!documentDetail;D=OPM-2012-0015-0001