5 U.S.C. § 9005 — Preemption

Page 1287 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 9005 lough resulting from a lapse in appropriations, includ- ing provision for direct payment to carrier for certain individuals, see section 1111(b) of Pub. L. 116–92, set out as a note under section 8956 of this title. § 9004. Financing (a) IN GENERAL.—Each eligible individual ob- taining long-term care insurance coverage under this chapter shall be responsible for 100 percent of the premiums for such coverage. (b) WITHHOLDINGS.— (1) IN GENERAL.—The amount necessary to pay the premiums for enrollment may— (A) in the case of an employee, be withheld from the pay of such employee; (B) in the case of an annuitant, be with- held from the annuity of such annuitant; (C) in the case of a member of the uni- formed services described in section 9001(3), be withheld from the pay of such member; and (D) in the case of a retired member of the uniformed services described in section 9001(4), be withheld from the retired pay or retainer pay payable to such member. (2) VOLUNTARY WITHHOLDINGS FOR QUALIFIED RELATIVES.—Withholdings to pay the pre- miums for enrollment of a qualified relative may, upon election of the appropriate eligible individual (described in section 9001(1)–(4)), be withheld under paragraph (1) to the same ex- tent and in the same manner as if enrollment were for such individual. (c) DIRECT PAYMENTS.—All amounts withheld under this section shall be paid directly to the carrier. (d) OTHER FORMS OF PAYMENT.—Any enrollee who does not elect to have premiums withheld under subsection (b) or whose pay, annuity, or retired or retainer pay (as referred to in sub- section (b)(1)) is insufficient to cover the with- holding required for enrollment (or who is not receiving any regular amounts from the Govern- ment, as referred to in subsection (b)(1), from which any such withholdings may be made, and whose premiums are not otherwise being pro- vided for under subsection (b)(2)) shall pay an amount equal to the full amount of those charges directly to the carrier. (e) SEPARATE ACCOUNTING REQUIREMENT.— Each carrier participating under this chapter shall maintain records that permit it to account for all amounts received under this chapter (in- cluding investment earnings on those amounts) separate and apart from all other funds. (f) REIMBURSEMENTS.— (1) REASONABLE INITIAL COSTS.— (A) IN GENERAL.—The Employees’ Life In- surance Fund is available, without fiscal year limitation, for reasonable expenses in- curred by the Office of Personnel Manage- ment in administering this chapter before the start of the 7-year period described in section 9003(d)(2)(B), including reasonable implementation costs. (B) REIMBURSEMENT REQUIREMENT.—Such Fund shall be reimbursed, before the end of the first year of that 7-year period, for all amounts obligated or expended under sub- paragraph (A) (including lost investment in- come). Such reimbursement shall be made by carriers, on a pro rata basis, in accord- ance with appropriate provisions which shall be included in master contracts under this chapter. (2) SUBSEQUENT COSTS.— (A) IN GENERAL.—There is hereby estab- lished in the Employees’ Life Insurance Fund a Long-Term Care Administrative Ac- count, which shall be available to the Office, without fiscal year limitation, to defray rea- sonable expenses incurred by the Office in administering this chapter after the start of the 7-year period described in section 9003(d)(2)(B). (B) REIMBURSEMENT REQUIREMENT.—Each master contract under this chapter shall in- clude appropriate provisions under which the carrier involved shall, during each year, make such periodic contributions to the Long-Term Care Administrative Account as necessary to ensure that the reasonable an- ticipated expenses of the Office in admin- istering this chapter during such year (ad- justed to reconcile for any earlier overesti- mates or underestimates under this subpara- graph) are defrayed. (Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 766.) § 9005. Preemption (a) CONTRACTUAL PROVISIONS.—The terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued there- under, which relates to long-term care insurance or contracts. (b) PREMIUMS.— (1) IN GENERAL.—No tax, fee, or other mone- tary payment may be imposed or collected, di- rectly or indirectly, by any State, the District of Columbia, or the Commonwealth of Puerto Rico, or by any political subdivision or other governmental authority thereof, on, or with respect to, any premium paid for an insurance policy under this chapter. (2) RULE OF CONSTRUCTION.—Paragraph (1) shall not be construed to exempt any company or other entity issuing a policy of insurance under this chapter from the imposition, pay- ment, or collection of a tax, fee, or other mon- etary payment on the net income or profit ac- cruing to or realized by such entity from busi- ness conducted under this chapter, if that tax, fee, or payment is applicable to a broad range of business activity. (Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 768; amended Pub. L. 107–104, § 2, Dec. 27, 2001, 115 Stat. 1001.) Editorial Notes AMENDMENTS 2001—Pub. L. 107–104 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b). Page 1288 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 9006 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2001 AMENDMENT Amendment by Pub. L. 107–104 effective as if included in the enactment of section 1002 of Pub. L. 106–265, see section 3 of Pub. L. 107–104, set out as a note under sec- tion 9001 of this title. § 9006. Studies, reports, and audits (a) PROVISIONS RELATING TO CARRIERS.—Each master contract under this chapter shall con- tain provisions requiring the carrier— (1) to furnish such reasonable reports as the Office of Personnel Management determines to be necessary to enable it to carry out its func- tions under this chapter; and (2) to permit the Office and representatives of the Government Accountability Office to examine such records of the carrier as may be necessary to carry out the purposes of this chapter. (b) PROVISIONS RELATING TO FEDERAL AGEN- CIES.—Each Federal agency shall keep such records, make such certifications, and furnish the Office, the carrier, or both, with such infor- mation and reports as the Office may require. (c) REPORTS BY THE GOVERNMENT ACCOUNT- ABILITY OFFICE.—The Government Account- ability Office shall prepare and submit to the President, the Office of Personnel Management, and each House of Congress, before the end of the third and fifth years during which the pro- gram under this chapter is in effect, a written report evaluating such program. Each such re- port shall include an analysis of the competi- tiveness of the program, as compared to both group and individual coverage generally avail- able to individuals in the private insurance mar- ket. The Office shall cooperate with the Govern- ment Accountability Office to provide periodic evaluations of the program. (Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 768; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.) Editorial Notes AMENDMENTS 2004—Subsec. (a)(2). Pub. L. 108–271 substituted ‘‘Gov- ernment Accountability Office’’ for ‘‘General Account- ing Office’’. Subsec. (c). Pub. L. 108–271 substituted ‘‘Government Accountability Office’’ for ‘‘General Accounting Office’’ in heading and two places in text. § 9007. Jurisdiction of courts The district courts of the United States have original jurisdiction of a civil action or claim described in paragraph (1) or (2) of section 9003(c), after such administrative remedies as re- quired under such paragraph (1) or (2) (as appli- cable) have been exhausted, but only to the ex- tent judicial review is not precluded by any dis- pute resolution or other remedy under this chapter. (Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 768.) § 9008. Administrative functions (a) IN GENERAL.—The Office of Personnel Man- agement shall prescribe regulations necessary to carry out this chapter. (b) ENROLLMENT PERIODS.—The Office shall provide for periodic coordinated enrollment, promotion, and education efforts in consultation with the carriers. (c) CONSULTATION.—Any regulations necessary to effect the application and operation of this chapter with respect to an eligible individual de- scribed in paragraph (3) or (4) of section 9001, or a qualified relative thereof, shall be prescribed by the Office in consultation with the appro- priate Secretary. (d) INFORMED DECISIONMAKING.—The Office shall ensure that each eligible individual apply- ing for long-term care insurance under this chapter is furnished the information necessary to enable that individual to evaluate the advan- tages and disadvantages of obtaining long-term care insurance under this chapter, including the following: (1) The principal long-term care benefits and coverage available under this chapter, and how those benefits and coverage compare to the range of long-term care benefits and cov- erage otherwise generally available. (2) Representative examples of the cost of long-term care, and the sufficiency of the ben- efits available under this chapter relative to those costs. The information under this para- graph shall also include— (A) the projected effect of inflation on the value of those benefits; and (B) a comparison of the inflation-adjusted value of those benefits to the projected fu- ture costs of long-term care. (3) Any rights individuals under this chapter may have to cancel coverage, and to receive a total or partial refund of premiums. The infor- mation under this paragraph shall also in- clude— (A) the projected number or percentage of individuals likely to fail to maintain their coverage (determined based on lapse rates experienced under similar group long-term care insurance programs and, when avail- able, this chapter); and (B)(i) a summary description of how and when premiums for long-term care insurance under this chapter may be raised; (ii) the premium history during the last 10 years for each qualified carrier offering long- term care insurance under this chapter; and (iii) if cost increases are anticipated, the projected premiums for a typical insured in- dividual at various ages. (4) The advantages and disadvantages of long-term care insurance generally, relative to other means of accumulating or otherwise ac- quiring the assets that may be needed to meet the costs of long-term care, such as through tax-qualified retirement programs or other in- vestment vehicles. (Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 768.) § 9009. Cost accounting standards The cost accounting standards issued pursuant to section 1502(a) and (b) of title 41 shall not apply with respect to a long-term care insurance contract under this chapter.