B-246044, Feb 11, 1992, Office of General Counsel

B-246044, Feb 11, 1992, Office of General Counsel

DIGEST: Employee appealed Claims Group's denial of his request to waive repayment of debt of $1,658.94, which occurred during a period the employee was in a nonpay status and continued to be enrolled in a health benefit plan for 365 days as provided for by 5 C.F.R. Sec. 890.303(e) (1991). Claims Group correctly held that waiver could not be considered because there had been no erroneous payment. The matter is returned to the agency with recommendation that it be referred to OPM for retroactive correction of administrative error under provisions of 5 C.F.R. Sec. 890.103(b) (1991).

Joseph C. Neiberger, Chief, Financial Controls Branch Consolidated American Payroll Division, U.S. Department of State:

This is in reference to the debt of Mr. Robert D. Blackwill, a former Ambassador, for unpaid health insurance premiums, totalling $1,658.94, which occurred during the period August 25, 1987, through August 25, 1988, the date his health insurance enrollment was terminated.

Ambassador Blackwill has appealed our Claims Group settlement which denied his request for waiver under the provisions of 5 U.S.C. Sec. 5584 (1988). /1/ As you advised us, his debt arose while he was in a leave without pay status from August 25, 1987, through January 22, 1989. Under 5 C.F.R. Sec. 890.303(e) (1991), an employee who is in a nonpay status continues to be enrolled in a health benefit plan for 365 days. Thus, Ambassador Blackwill was responsible for paying his share of his health insurance premiums for the period August 25, 1987, through August 25, 1988, the date his health insurance enrollment was terminated. See also 5 U.S.C. Sec. 8906(e)(1) (1988).

Ambassador Blackwill states that he first became aware that he remained enrolled in the health benefits program during his nonpay status when he was notified by the State Department of a proposed collection on June 18, 1990. He was also unaware that he was required to submit a health benefit decision form and a cancellation form prior to entering a nonpay status. Because he was unaware of his continued coverage under the health benefits program, he participated in and paid Harvard University for health coverage during the same period. We also note that Ambassador Blackwill's Standard Form 50 seems to predicate his continuance in the health benefits program solely on the basis of his payment of premiums since it states coverage continues "if you pay employee share of cost."

In referring the waiver request to our Office by letter of November 26, 1990, you recommended that Ambassador Blackwill's debt be waived since he was not aware of the fact that he remained enrolled in the health benefits program. However, as our Claims Group correctly stated in its settlement certificate, our waiver authority is limited to those claims which arise from erroneous payments. Since Ambassador Blackwill was in a nonpay status, there were no erroneous payments to him during that time and his debt may not be considered for waiver under 5 U.S.C. Sec. 5584.

There is, however, an alternative remedy. Under 5 C.F.R. Sec. 890.103(b) (1991), the Office of Personnel Management (OPM) is authorized to retroactively correct administrative errors "upon a showing satisfactory to OPM that it would be against equity and good conscience not to do so."

Accordingly, we recommend that you submit the matter of Ambassador Blackwill's indebtedness of $1,658.94 for health benefits premiums to the Office of Insurance Programs, OPM, for appropriate action under the above- cited regulation. We also feel that it is important that OPM be made aware of the fact, as you advised, that Ambassador Blackwill canceled his enrollment in the health benefits program upon retirement. Thus, it was not necessary for Ambassador Blackwill to comply with 5 U.S.C. Sec. 8906(e)(1)) (1988), and remain enrolled in the health benefits program for 5 years prior to retirement in order to continue enrollment as an annuitant.

/1/ Z-2905942-056, Apr. 22, 1991.