5 U.S.C. § 8905a — Continued coverage

Page 1259 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8905a EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–615 effective May 7, 1985, with enumerated exceptions, and applicable to any in- dividual who is married to an employee or annuitant on or after that date, see section 4(a)(2) of Pub. L. 98–615, as amended, set out as a note under section 8341 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title. REGULATIONS Regulations to carry out amendment by Pub. L. 116–92 to be prescribed no later than 90 days after Dec. 20, 2019, and to contain provision related to pay status for furloughed employees, see section 1110(c) of Pub. L. 116–92, set out as a note under section 8702 of this title. WEIGHTED AVERAGE FOR FIRST YEAR Pub. L. 113–67, div. A, title VII, § 706(d), Dec. 26, 2013, 127 Stat. 1194, provided that: ‘‘For the first contract year for which an employee may enroll for self plus one coverage under chapter 89 of title 5, United States Code, the Office of Personnel Management shall deter- mine the weighted average of the subscription charges that will be in effect for the contract year for enroll- ments for self plus one under such chapter based on an actuarial analysis.’’ ELECTION OF HEALTH BENEFITS COVERAGE AND ENTI- TLEMENT TO HEALTH BENEFITS UNDER THIS CHAPTER RATHER THAN UNDER RETIRED FEDERAL EMPLOYEES HEALTH BENEFITS ACT Pub. L. 93–246, §§ 2, 4(b), Jan. 31, 1974, 88 Stat. 4, pro- vided that: ‘‘SEC. 2. (a) Notwithstanding any other provision of law, an annuitant, as defined under section 8901(3) of title 5, United States Code, who is participating or who is eligible to participate in the health benefits program offered under the Retired Federal Employees Health Benefits Act (74 Stat. 849; Public Law 86–724), may elect, in accordance with regulations prescribed by the United States Civil Service Commission, to be covered under the provisions of chapter 89 of title 5, United States Code, in lieu of coverage under such Act. ‘‘(b) An annuitant who elects to be covered under the provisions of chapter 89 of title 5, United States Code, in accordance with subsection (a) of this section, shall be entitled to the benefits under such chapter 89. ‘‘[Sec. 4] (b) Section 2 [set out above] shall take effect on the one hundred and eightieth day following the date of enactment [Jan. 1, 1974] or on such earlier date as the United States Civil Service Commission may prescribe.’’ § 8905a. Continued coverage (a) Any individual described in subsection (b) may elect to continue coverage under this chap- ter in accordance with the provisions of this sec- tion. (b) This section applies with respect to— (1) any employee who— (A) is separated from service, whether vol- untarily or involuntarily, except that if the separation is involuntary, this section shall not apply if the separation is for gross mis- conduct (as defined under regulations which the Office of Personnel Management shall prescribe); and (B) would not otherwise be eligible for any benefits under this chapter (determined without regard to any temporary extension of coverage and without regard to any bene- fits available under a nongroup contract); (2) any individual who— (A) ceases to meet the requirements for being considered an unmarried dependent child under this chapter; (B) on the day before so ceasing to meet the requirements referred to in subpara- graph (A), was covered under a health bene- fits plan under this chapter as a member of the family of an employee or annuitant; and (C) would not otherwise be eligible for any benefits under this chapter (determined without regard to any temporary extension of coverage and without regard to any bene- fits available under a nongroup contract); and (3) any employee who— (A) is enrolled in a health benefits plan under this chapter; (B) is a member of a reserve component of the armed forces; (C) is called or ordered to active duty in support of a contingency operation (as de- fined in section 101(a)(13) of title 10); (D) is placed on leave without pay or sepa- rated from service to perform active duty; and (E) serves on active duty for a period of more than 30 consecutive days. (c)(1) The Office shall prescribe regulations and provide for the inclusion of appropriate terms in contracts with carriers to provide that— (A) with respect to an employee who be- comes (or will become) eligible for continued coverage under this section as a result of sepa- ration from service, the separating agency shall, before the end of the 30-day period be- ginning on the date as of which coverage (in- cluding any temporary extensions of coverage) would otherwise end, notify the individual of such individual’s rights under this section; and (B) with respect to a child of an employee or annuitant who becomes eligible for continued coverage under this section as a result of ceas- ing to meet the requirements for being consid- ered a member of the employee’s or annu- itant’s family— (i) the employee or annuitant may provide written notice of the child’s change in status (complete with the child’s name, address, and such other information as the Office may by regulation require)— (I) to the employee’s employing agency; or (II) in the case of an annuitant, to the Office; and (ii) if the notice referred to in clause (i) is received within 60 days after the date as of which the child involved first ceases to meet the requirements involved, the employing agency or the Office (as the case may be) must, within 14 days after receiving such no- tice, notify the child of such child’s rights under this section. (2) In order to obtain continued coverage under this section, an appropriate written elec- tion (submitted in such manner as the Office by regulation prescribes) must be made— (A) in the case of an individual seeking con- tinued coverage based on a separation from Page 1260 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8905a 1 See References in Text note below. service, before the end of the 60-day period be- ginning on the later of— (i) the effective date of the separation; or (ii) the date the separated individual re- ceives the notice required under paragraph (1)(A); or (B) in the case of an individual seeking con- tinued coverage based on a change in cir- cumstances making such individual ineligible for coverage as an unmarried dependent child, before the end of the 60-day period beginning on the later of— (i) the date as of which such individual first ceases to meet the requirements for being considered an unmarried dependent child; or (ii) the date such individual receives no- tice under paragraph (1)(B)(ii); except that if a parent fails to provide the no- tice required under paragraph (1)(B)(i) in time- ly fashion, the 60-day period under this sub- paragraph shall be based on the date under clause (i), irrespective of whether or not any notice under paragraph (1)(B)(ii) is provided. (d)(1)(A) Except as provided in paragraphs (4), (5), and (6), an individual receiving continued coverage under this section shall be required to pay currently into the Employees Health Bene- fits Fund, under arrangements satisfactory to the Office, an amount equal to the sum of— (i) the employee and agency contributions which would be required in the case of an em- ployee enrolled in the same health benefits plan and level of benefits; and (ii) an amount, determined under regula- tions prescribed by the Office, necessary for administrative expenses, but not to exceed 2 percent of the total amount under clause (i). (B) Payments under this section to the Fund shall— (i) in the case of an individual whose contin- ued coverage is based on such individual’s sep- aration, be made through the agency which last employed such individual; or (ii) in the case of an individual whose con- tinued coverage is based on a change in cir- cumstances referred to in subsection (c)(2)(B), be made through— (I) the Office, if, at the time coverage would (but for this section) otherwise have been discontinued, the individual was cov- ered as the child of an annuitant; or (II) if, at the time referred to in subclause (I), the individual was covered as the child of an employee, the employee’s employing agency as of such time. (2) If an individual elects to continue coverage under this section before the end of the applica- ble period under subsection (c)(2), but after such individual’s coverage under this chapter (includ- ing any temporary extensions of coverage) ex- pires, coverage shall be restored retroactively, with appropriate contributions (determined in accordance with paragraph (1), (4), or (5), as the case may be) and claims (if any), to the same ex- tent and effect as though no break in coverage had occurred. (3)(A) An individual making an election under subsection (c)(2)(B) may, at such individual’s op- tion, elect coverage either as an individual or, if appropriate, for self plus one or for self and fam- ily. (B) For the purpose of this paragraph, mem- bers of an individual’s family shall be deter- mined in the same way as would apply under this chapter in the case of an enrolled employee. (C) Nothing in this paragraph shall be consid- ered to limit an individual making an election under subsection (c)(2)(A) to coverage for self alone. (4)(A) If the basis for continued coverage under this section is an involuntary separation from a position, or a voluntary separation from a sur- plus position, in or under the Department of De- fense due to a reduction in force, or the Depart- ment of Energy due to a reduction in force re- sulting from the establishment of the National Nuclear Security Administration— (i) the individual shall be liable for not more than the employee contributions referred to in paragraph (1)(A)(i); and (ii) the agency which last employed the indi- vidual shall pay the remaining portion of the amount required under paragraph (1)(A). (B) This paragraph shall apply with respect to any individual whose continued coverage is based on a separation occurring on or after the date of enactment of this paragraph and before— (i) December 31, 2016; or (ii) February 1, 2017, if specific notice of such separation was given to such individual before December 31, 2016. (C) For the purpose of this paragraph, ‘‘surplus position’’ means a position which is identified in pre-reduction-in-force planning as no longer re- quired, and which is expected to be eliminated under formal reduction-in-force procedures. (5)(A) If the basis for continued coverage under this section is an involuntary separation from a position in or under the Department of Veterans Affairs due to a reduction in force or a title 38 staffing readjustment, or a voluntary or invol- untary separation from a Department of Energy position at a Department of Energy facility at which the Secretary is carrying out a closure project selected under section 44211 of the Atom- ic Energy Defense Act— (i) the individual shall be liable for not more than the employee contributions referred to in paragraph (1)(A)(i); and (ii) the agency which last employed the indi- vidual shall pay the remaining portion of the amount required under paragraph (1)(A). (B) This paragraph shall only apply with re- spect to individuals whose continued coverage is based on a separation occurring on or after the date of the enactment of this paragraph. (6)(A) If the basis for continued coverage under this section is, as a result of the termination of the Space Shuttle Program, an involuntary sep- aration from a position due to a reduction-in- force or declination of a directed reassignment or transfer of function, or a voluntary separa- tion from a surplus position in the National Aer- onautics and Space Administration— (i) the individual shall be liable for not more than the employee contributions referred to in paragraph (1)(A)(i); and Page 1261 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8905a (ii) the National Aeronautics and Space Ad- ministration shall pay the remaining portion of the amount required under paragraph (1)(A). (B) This paragraph shall only apply with re- spect to individuals whose continued coverage is based on a separation occurring on or after the date of enactment of this paragraph and before December 31, 2010. (C) For purposes of this paragraph, ‘‘surplus position’’ means a position which is— (i) identified in pre-reduction-in-force plan- ning as no longer required, and which is ex- pected to be eliminated under formal reduc- tion-in-force procedures as a result of the ter- mination of the Space Shuttle Program; or (ii) encumbered by an employee who has re- ceived official certification from the National Aeronautics and Space Administration con- sistent with the Administration’s career tran- sition assistance program regulations that the position is being abolished as a result of the termination of the Space Shuttle Program. (e)(1) Continued coverage under this section may not extend beyond— (A) in the case of an individual whose con- tinued coverage is based on separation from service, the date which is 18 months after the effective date of the separation; (B) in the case of an individual whose con- tinued coverage is based on ceasing to meet the requirements for being considered an un- married dependent child, the date which is 36 months after the date on which the individual first ceases to meet those requirements, sub- ject to paragraph (2); or (C) in the case of an employee described in subsection (b)(3), the date which is 24 months after the employee is placed on leave without pay or separated from service to perform ac- tive duty. (2) In the case of an individual who— (A) ceases to meet the requirements for being considered an unmarried dependent child; (B) as of the day before so ceasing to meet the requirements referred to in subparagraph (A), was covered as the child of a former em- ployee receiving continued coverage under this section based on the former employee’s separation from service; and (C) so ceases to meet the requirements re- ferred to in subparagraph (A) before the end of the 18-month period beginning on the date of the former employee’s separation from serv- ice, extended coverage under this section may not extend beyond the date which is 36 months after the separation date referred to in subparagraph (C). (f)(1) The Office shall prescribe regulations under which, in addition to any individual oth- erwise eligible for continued coverage under this section, and to the extent practicable, continued coverage may also, upon appropriate written ap- plication, be afforded under this section— (A) to any individual who— (i) if subparagraphs (A) and (C) of para- graph (10) of section 8901 were disregarded, would be eligible to be considered a former spouse within the meaning of such para- graph; but (ii) would not, but for this subsection, be eligible to be so considered; and (B) to any individual whose coverage as a family member would otherwise terminate as a result of a legal separation. (2) The terms and conditions for coverage under the regulations shall include— (A) consistent with subsection (c), any nec- essary notification provisions, and provisions under which an election period of at least 60 days’ duration is afforded; (B) terms and conditions identical to those under subsection (d), except that contribu- tions to the Employees Health Benefits Fund shall be made through such agency as the Of- fice by regulation prescribes; (C) provisions relating to the termination of continued coverage, except that continued coverage under this section may not (subject to paragraph (3)) extend beyond the date which is 36 months after the date on which the qualifying event under this subsection (the date of divorce, annulment, or legal separa- tion, as the case may be) occurs; and (D) provisions designed to ensure that any coverage pursuant to this subsection does not adversely affect any eligibility for coverage which the individual involved might otherwise have under this chapter (including as a result of any change in personal circumstances) if this subsection had not been enacted. (3) In the case of an individual— (A) who becomes eligible for continued cov- erage under this subsection based on a divorce, annulment, or legal separation from a person who, as of the day before the date of the di- vorce, annulment, or legal separation (as the case may be) was receiving continued coverage under this section based on such person’s sepa- ration from service under a self plus one en- rollment that covered the individual or under a self and family enrollment; and (B) whose divorce, annulment, or legal sepa- ration (as the case may be) occurs before the end of the 18-month period beginning on the date of the separation from service referred to in subparagraph (A), extended coverage under this section may not extend beyond the date which is 36 months after the date of the separation from service, as re- ferred to in subparagraph (A). (Added Pub. L. 100–654, title II, § 201(a)(1), Nov. 14, 1988, 102 Stat. 3841; amended Pub. L. 102–484, div. D, title XLIV, § 4438(a), Oct. 23, 1992, 106 Stat. 2725; Pub. L. 103–337, div. A, title III, § 341(d), Oct. 5, 1994, 108 Stat. 2720; Pub. L. 104–106, div. A, title X, § 1036, Feb. 10, 1996, 110 Stat. 431; Pub. L. 106–65, div. A, title XI, § 1104(c), div. C, title XXXII, § 3244, Oct. 5, 1999, 113 Stat. 777, 965; Pub. L. 106–117, title XI, § 1106, Nov. 30, 1999, 113 Stat. 1598; Pub. L. 107–314, div. A, title XI, § 1103, Dec. 2, 2002, 116 Stat. 2661; Pub. L. 107–314, div. D, title XLVI, § 4603(h), formerly Pub. L. 106–398, § 1 [div. C, title XXXI, § 3136(h)], Oct. 30, 2000, 114 Stat. 1654, 1654A–459, renum- bered § 4603(h) of Pub. L. 107–314 by Pub. L. 108–136, div. C, title XXXI, § 3141(i)(4)(A)–(C), Page 1262 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8906 Nov. 24, 2003, 117 Stat. 1777; Pub. L. 108–136, div. C, title XXXI, § 3141(m)(3), Nov. 24, 2003, 117 Stat. 1787; Pub. L. 108–375, div. A, title XI, § 1101(a), Oct. 28, 2004, 118 Stat. 2072; Pub. L. 109–163, div. A, title XI, § 1101, Jan. 6, 2006, 119 Stat. 3447; Pub. L. 110–422, title VI, § 615, Oct. 15, 2008, 122 Stat. 4800; Pub. L. 111–242, § 151, as added Pub. L. 111–322, title I, § 1(a)(2), Dec. 22, 2010, 124 Stat. 3519; Pub. L. 112–81, div. A, title XI, § 1123, Dec. 31, 2011, 125 Stat. 1617; Pub. L. 113–67, div. A, title VII, § 706(b), Dec. 26, 2013, 127 Stat. 1194.) Editorial Notes REFERENCES IN TEXT The date of enactment of this paragraph, referred to in subsec. (d)(4)(B), is the date of enactment of Pub. L. 102–484, which was approved Oct. 23, 1992. Section 4421 of the Atomic Energy Defense Act, re- ferred to in subsec. (d)(5)(A), was classified to section 2601 of Title 50, War and National Defense, prior to re- peal by Pub. L. 113–66, div. C, title XXXI, § 3146(e)(10), Dec. 26, 2013, 127 Stat. 1077. The date of the enactment of this paragraph, referred to in subsec. (d)(5)(B), is the date of enactment of Pub. L. 106–117, which was approved Nov. 30, 1999. The date of enactment of this paragraph, referred to in subsec. (d)(6)(B), is the date of enactment of Pub. L. 110–422, which was approved Oct. 15, 2008. AMENDMENTS 2013—Subsec. (d)(3)(A). Pub. L. 113–67, § 706(b)(1), in- serted ‘‘for self plus one or’’ before ‘‘for self and fam- ily’’. Subsec. (f)(3)(A). Pub. L. 113–67, § 706(b)(2), substituted ‘‘based on such person’s separation from service under a self plus one enrollment that covered the individual or under a self and family enrollment’’ for ‘‘for self and family based on such person’s separation from service’’. 2011—Subsec. (d)(4)(B). Pub. L. 112–81 substituted ‘‘De- cember 31, 2016’’ for ‘‘December 31, 2011’’ in cls. (i) and (ii) and substituted ‘‘February 1, 2017’’ for ‘‘February 1, 2012’’ in cl. (ii). 2010—Subsec. (d)(4)(B)(i). Pub. L. 111–242, § 151(1), as added by Pub. L. 111–322, substituted ‘‘December 31, 2011’’ for ‘‘October 1, 2010’’. Subsec. (d)(4)(B)(ii). Pub. L. 111–242, § 151(2), as added by Pub. L. 111–322, substituted ‘‘February 1, 2012’’ for ‘‘February 1, 2011’’ and ‘‘December 31, 2011’’ for ‘‘Octo- ber 1, 2010’’. 2008—Subsec. (d)(1)(A). Pub. L. 110–422, § 615(b), sub- stituted ‘‘(4), (5), and (6)’’ for ‘‘(4) and (5)’’ in introduc- tory provisions. Subsec. (d)(6). Pub. L. 110–422, § 615(a), added par. (6). 2006—Subsec. (d)(4)(B)(i). Pub. L. 109–163, § 1101(1), sub- stituted ‘‘October 1, 2010’’ for ‘‘October 1, 2006’’. Subsec. (d)(4)(B)(ii). Pub. L. 109–163, § 1101(2), sub- stituted ‘‘February 1, 2011’’ for ‘‘February 1, 2007’’ and ‘‘October 1, 2010’’ for ‘‘October 1, 2006’’. 2004—Subsec. (a). Pub. L. 108–375, § 1101(a)(1), struck out ‘‘paragraph (1) or (2) of’’ after ‘‘Any individual de- scribed in’’. Subsec. (b)(3). Pub. L. 108–375, § 1101(a)(2), added par. (3). Subsec. (e)(1)(C). Pub. L. 108–375, § 1101(a)(4), added subpar. (C). 2003—Subsec. (d)(5)(A). Pub. L. 108–136, § 3141(m)(3), substituted ‘‘section 4421 of the Atomic Energy Defense Act’’ for ‘‘section 3143 of the National Defense Author- ization Act for Fiscal Year 1997 (42 U.S.C. 7274n)’’. 2002—Subsec. (d)(4)(B)(i). Pub. L. 107–314, § 1103(1), sub- stituted ‘‘2006’’ for ‘‘2003’’. Subsec. (d)(4)(B)(ii). Pub. L. 107–314, § 1103(2), sub- stituted ‘‘2007’’ and ‘‘2006’’ for ‘‘2004’’ and ‘‘2003’’, respec- tively. 2000—Subsec. (d)(5)(A). Pub. L. 107–314, § 4603(h), for- merly Pub. L. 106–398, § 1 [div. C, title XXXI, § 3136(h)], as renumbered by Pub. L. 108–136, § 3141(i)(4)(A)–(C), in introductory provisions, inserted ‘‘, or a voluntary or involuntary separation from a Department of Energy position at a Department of Energy facility at which the Secretary is carrying out a closure project selected under section 3143 of the National Defense Authoriza- tion Act for Fiscal Year 1997 (42 U.S.C. 7274n)’’ after ‘‘readjustment’’. 1999—Subsec. (d)(1)(A). Pub. L. 106–117, § 1106(1), sub- stituted ‘‘paragraphs (4) and (5)’’ for ‘‘paragraph (4)’’ in introductory provisions. Subsec. (d)(2). Pub. L. 106–117, § 1106(2), substituted ‘‘(1), (4), or (5)’’ for ‘‘(1) or (4)’’. Subsec. (d)(4)(A). Pub. L. 106–65, § 3244, inserted ‘‘, or the Department of Energy due to a reduction in force resulting from the establishment of the National Nu- clear Security Administration’’ after ‘‘reduction in force’’ in introductory provisions. Subsec. (d)(4)(B). Pub. L. 106–65, § 1104(c), added cls. (i) and (ii) and struck out former cls. (i) and (ii) which read as follows: ‘‘(i) October 1, 1999; or ‘‘(ii) February 1, 2000, if specific notice of such separa- tion was given to such individual before October 1, 1999.’’ Subsec. (d)(5). Pub. L. 106–117, § 1106(3), added par. (5). 1996—Subsec. (d)(4)(A). Pub. L. 104–106, § 1036(1), in- serted ‘‘, or a voluntary separation from a surplus posi- tion,’’ after ‘‘an involuntary separation from a posi- tion’’ in introductory provisions. Subsec. (d)(4)(C). Pub. L. 104–106, § 1036(2), added sub- par. (C). 1994—Subsec. (d)(4)(B). Pub. L. 103–337 substituted ‘‘October 1, 1999’’ for ‘‘October 1, 1997’’ in cls. (i) and (ii) and ‘‘February 1, 2000’’ for ‘‘February 1, 1998’’ in cl. (ii). 1992—Subsec. (d)(1)(A). Pub. L. 102–484, § 4438(a)(1), substituted ‘‘Except as provided in paragraph (4), an in- dividual’’ for ‘‘An individual’’. Subsec. (d)(2). Pub. L. 102–484, § 4438(a)(2), substituted ‘‘in accordance with paragraph (1) or (4), as the case may be)’’ for ‘‘in accordance with paragraph (1))’’. Subsec. (d)(4). Pub. L. 102–484, § 4438(a)(3), added par. (4). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT Pub. L. 108–375, div. A, title XI, § 1101(c), Oct. 28, 2004, 118 Stat. 2072, provided that: ‘‘The amendments made by this section [amending this section and section 8906 of this title] shall apply with respect to Federal em- ployees called or ordered to active duty on or after Sep- tember 14, 2001.’’ EFFECTIVE DATE OF 1999 AMENDMENT Amendment by section 3244 of Pub. L. 106–65 effective Mar. 1, 2000, see section 3299 of Pub. L. 106–65, set out as an Effective Date note under section 2401 of Title 50, War and National Defense. EFFECTIVE DATE Section applicable with respect to any calendar year beginning, and contracts entered into or renewed for any calendar year beginning, after the end of the 9- month period beginning Nov. 14, 1988, and with respect to any qualifying event occurring on or after the first day of the first calendar year beginning after the end of such 9-month period, see section 203 of Pub. L. 100–654, set out as an Effective Date of 1988 Amendment note under section 8902 of this title. SOURCE OF PAYMENTS Pub. L. 102–484, div. D, title XLIV, § 4438(b)(1), Oct. 23, 1992, 106 Stat. 2725, provided that: ‘‘Any amount which becomes payable by an agency as a result of the enact- ment of subsection (a) [amending this section] shall be paid out of funds or appropriations available for sala- ries and expenses of such agency.’’ § 8906. Contributions (a)(1) Not later than October 1 of each year, the Office of Personnel Management shall deter-