B-149859, DECEMBER 3, 1962, 42 COMP. GEN. 282

B-149859, DECEMBER 3, 1962, 42 COMP. GEN. 282

OFFICERS AND EMPLOYEES - HEALTH INSURANCE - NONDEPENDENT HUSBAND DETERMINATIONS ACTION BY AN AGENCY RETROACTIVELY CHANGING A FEMALE EMPLOYEE'S HEALTH BENEFIT PLAN FOR HERSELF AND FAMILY (CODE 202) TO THE PLAN FOR FEMALE EMPLOYEE WITH NONDEPENDENT HUSBAND (CODE 203) ON THE BASIS THAT THE HUSBAND WHO HAD DESERTED HER BEFORE SHE ENROLLED IN THE PLAN WAS REQUIRED TO BE CONSIDERED AS A MEMBER OF THE FAMILY FOR PURPOSES OF THE FEDERAL EMPLOYEES HEALTH BENEFITS ACT OF 1959, 5 U.S.C. 3001 NOTE, WAS PROPER; THEREFORE, THE ADDITIONAL AMOUNT THE GOVERNMENT IS REQUIRED TO CONTRIBUTE FOR A PLAN FOR SELF AND FAMILY BY A FEMALE EMPLOYEE WITH NONDEPENDENT HUSBAND (CODE 203) MUST BE REGARDED AS AN ERRONEOUS PAYMENT ON THE EMPLOYEE'S BEHALF AND SHE IS OBLIGATED TO REFUND THE OVERPAYMENT.

TO E. J. COOK, JR., DEPARTMENT OF THE ARMY, DECEMBER 3, 1962:

BY SECOND INDORSEMENT DATED SEPTEMBER 4, 1962, REFERENCE ENGECFA (7 AUG 62), THE ENGINEER COMPTROLLER FORWARDED YOUR LETTER OF AUGUST 7, 1962, REFERENCE LMNCF, AND ENCLOSURES, REQUESTING OUR DECISION AS TO THE PROPRIETY OF PAYING THE TRANSMITTED VOUCHER PROPOSING THE REFUND OF CERTAIN MONIES WITHHELD FROM THE SALARY OF A FEMALE EMPLOYEE AS ADDITIONAL PREMIUMS FOR HER ENROLLMENT IN A HEALTH BENEFIT PLAN UNDER THE FEDERAL EMPLOYEES HEALTH BENEFITS ACT OF 1959, PUBLIC LAW 86-382,73 STAT. 708, 5 U.S.C. 3001 NOTE.

IT APPEARS FROM YOUR LETTER AND THE ENCLOSURES THAT THE EMPLOYEE INITIALLY ENROLLED IN JUNE 1960 FOR SELF AND FAMILY IN ENROLLMENT CODE 202, HIGH OPTION OF THE INDEMNITY BENEFIT PLAN. IN OCTOBER 1961, YOUR AGENCY INFORMED THE EMPLOYEE THAT SINCE SHE WAS A MARRIED WOMAN WITH A NONDEPENDENT HUSBAND--- EMPLOYEE SAYS HUSBAND DESERTED HER PRIOR TO THE ENROLLMENT--- HER ENROLLMENT FOR SELF AND FAMILY MUST BE UNDER CODE 203 (SELF AND FAMILY--- FEMALE AND NONDEPENDENT HUSBAND). THE TOTAL ENROLLMENT CHARGE PER BIWEEKLY PAY PERIOD UNDER BOTH CODE 202 AND CODE 203 IS THE SAME, NAMELY, $8.06; HOWEVER, THE GOVERNMENT'S CONTRIBUTION UNDER CODE 202 IS SET AT $3.12 AS AGAINST $1.82 UNDER CODE 203, SO THAT THE CHARGE TO THE EMPLOYEE IS $4.94 UNDER CODE 202 BUT IS $6.24 UNDER CODE 203 --- A DIFFERENCE OF $1.30 PER PAY PERIOD. ACTION WAS TAKEN TO CHANGE THE ENROLLMENT CODE FROM 202 TO 203, TO ADJUST THE EMPLOYEE'S ENROLLMENT CHARGE TO THE $6.24 RATE RETROACTIVELY TO THE INITIAL ENROLLMENT DATE, AND TO COLLECT BY SALARY DEDUCTIONS THE DIFFERENCE OF $1.30 PER PAY PERIOD FROM THAT DATE FORWARD.

THE EMPLOYEE OBJECTED TO THE CHANGE ON THE GROUND THAT HER HUSBAND HAS DESERTED HER AND HER TWO MINOR CHILDREN AND SHE APPEALED THE AGENCY ACTION TO THE BUREAU OF RETIREMENT AND INSURANCE, UNITED STATES CIVIL SERVICE COMMISSION. UPON RECEIVING AN ADVERSE DECISION, SHE FURTHER APPEALED TO THE COMMISSION'S BOARD OF APPEALS AND REVIEW. THE BOARD'S DECISION OF MAY 15, 1962, IS IN PART AS FOLLOWS:

THE FEDERAL EMPLOYEES' HEALTH BENEFITS ACT DEFINES "MEMBERS OF FAMILY" AS INCLUDING, AMONG OTHERS, AN EMPLOYEE'S SPOUSE AND UNMARRIED CHILDREN UNDER NINETEEN YEARS OF AGE, AND THE LANGUAGE USED IN THE ACT EVIDENCES THAT A "FAMILY" IS TO BE CONSIDERED AS A WHOLE AND THAT NO RECOGNITION IS INTENDED TO BE GIVEN TO PART OF A FAMILY. THE ACT PROVIDES THAT AN EMPLOYEE MAY ENROLL IN A FAMILY BENEFIT PLAN "AS AN INDIVIDUAL OR SELF AND FAMILY" AND THAT IF A NONDEPENDENT HUSBAND IS A MEMBER OF THE FAMILY OF A FEMALE EMPLOYEE WHO IS ENROLLED FOR HERSELF AND FAMILY THE CONTRIBUTION OF THE GOVERNMENT SHALL BE THIRTY PERCENT OF THE SUBSCRIPTION CHARGED. SHE DOES NOT HAVE A CHOICE AS TO THE RATES OF GOVERNMENT CONTRIBUTION.

IN VIEW OF THE FACT THAT YOU ARE MARRIED, AND, IN THE ABSENCE OF A SHOWING THAT YOUR HUSBAND IS INCAPABLE OF SELF-SUPPORT BY REASON OF MENTAL OR PHYSICAL DISABILITY, YOU ARE A FEMALE EMPLOYEE WITH A NONDEPENDENT HUSBAND WITHIN THE MEANING OF THE HEALTH BENEFITS ACT. WHEN YOU ENROLLED FOR YOURSELF AND FAMILY, YOUR NONDEPENDENT HUSBAND WAS INCLUDED AS A MEMBER OF YOUR FAMILY. THE CHANGE FROM CODE 202 TO CODE 203 DOES NOT CHANGE YOUR ENROLLMENT. THE PURPOSE OF THE CHANGE TO CODE 203 IS TO ADJUST THE GOVERNMENT'S CONTRIBUTION TOWARD THE COST OF YOUR ENROLLMENT FOR SELF AND FAMILY AS REQUIRED UNDER THE LAW. THE ACTION OF YOUR EMPLOYING AGENCY IN RETROACTIVELY ADJUSTING THE GOVERNMENT'S CONTRIBUTION IS, IN EFFECT, A RECOVERY OF AN OVERPAYMENT OF SALARY TO YOU WHICH YOU MUST REPAY BECAUSE IT IS A DEBT DUE THE UNITED STATES.

THE BUREAU OF RETIREMENT AND INSURANCE INFORMED YOU THAT YOU MAY CHANGE YOUR ENROLLMENT FROM SELF AND FAMILY TO SELF ONLY IF YOU WISH BUT THAT SUCH CHANGE CANNOT BE MADE RETROACTIVELY TO JUNE 1960. YOU INDICATE THAT YOU CONSIDER THIS POSITION UNFAIR IN VIEW OF THE RULING THAT THE CHANGE FROM CODE 202 TO CODE 203 MUST BE MADE RETROACTIVELY TO JUNE 1960. THE DISTINCTION BETWEEN THESE TWO SITUATIONS SHOULD BE CLEAR. IN THE LATTER CASE, YOUR ENROLLMENT FOR SELF AND FAMILY REMAINS THE SAME, THE ONLY CHANGE BEING IN THE GOVERNMENT'S CONTRIBUTION. IN THE FORMER CASE, THE TYPE OF ENROLLMENT IS CHANGED.

FOR THE REASONS STATED HEREIN, THE BOARD HAS CONCURRED IN THE DECISION OF THE BUREAU OF RETIREMENT AND INSURANCE THAT YOU MAY NOT BE ENROLLED IN ENROLLMENT CODE 202, REGULAR SELF AND FAMILY; THAT YOUR AGENCY HAS AUTHORITY TO CHANGE YOUR ENROLLMENT CODE FROM NO. 202 TO NO. 203 AND TO ADJUST THE GOVERNMENT'S CONTRIBUTION TOWARD THE COST OF YOUR ENROLLMENT; AND THAT ANY CHANGE IN YOUR ENROLLMENT FROM SELF AND FAMILY TO SELF ONLY MUST BE MADE PROSPECTIVELY. THE BOARD HAS THEREFORE AFFIRMED THE PREVIOUS DECISION.

WE CONCUR IN THE BOARD'S CONCLUSION THAT THE HUSBAND OF A FEMALE EMPLOYEE MUST BE CONSIDERED AS A MEMBER OF THE FAMILY FOR PURPOSES OF THE HEALTH BENEFITS ACT, 5 U.S.C. 3006 (A) (1), REGARDLESS OF WHETHER THEY ARE LIVING TOGETHER; AND THAT THE GOVERNMENT'S CONTRIBUTION, AS PROVIDED IN PARAGRAPH (1) OF SECTION 7 (A) OF THE ACT, MUST BE DETERMINED ACCORDINGLY. INDICATED ABOVE, THE BIWEEKLY CONTRIBUTION OF THE GOVERNMENT FOR A FEMALE EMPLOYEE ENROLLED FOR SELF AND FAMILY, INCLUDING A NONDEPENDENT HUSBAND, HAS BEEN FIXED AT $1.82 PURSUANT TO CLAUSE (C) OF SAID PARAGRAPH (1). HOLD THAT FUNDS AUTHORIZED BY SECTION 7 (C) OF THE ACT, 5 U.S.C. 3006 (C), TO BE CHARGED WITH THE GOVERNMENT'S CONTRIBUTION ARE AVAILABLE IN THE CASE OF A FEMALE EMPLOYEE ENROLLED FOR SELF AND FAMILY ONLY AT THE $1.82 RATE WHEN, AS HERE, THE FAMILY INCLUDES A NONDEPENDENT HUSBAND. ANY CONTRIBUTION IN EXCESS OF SUCH RATE MUST BE REGARDED IN THIS CASE AS AN ERRONEOUS PAYMENT IN THE EMPLOYEE'S BEHALF AND SHE IS OBLIGATED TO REFUND THE OVERPAYMENT.

IN VIEW OF THE FOREGOING CONCLUSIONS, THE SUBJECT VOUCHER, WHICH, TOGETHER WITH THE SUPPORTING PAPERS, WILL BE RETAINED IN OUR FILES, MAY NOT BE PAID.