[Federal Register Volume 84, Number 45 (Thursday, March 7, 2019)]
[Rules and Regulations]
[Pages 8254-8257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04096]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AP94


Fertility Counseling and Treatment for Certain Veterans and 
Spouses

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) adopts as final, with 
changes based on subsequent changes to our statutory authority, an 
interim final rule adding a new section to the medical regulations 
authorizing in vitro fertilization (IVF) for a veteran with a service-
connected disability that results in the inability of the veteran to 
procreate without the use of fertility treatment. In addition, the rule 
added a new section stating that VA may provide fertility counseling 
and treatment using assisted reproductive technologies (ART), including 
IVF, to a spouse of a veteran with a service-connected disability that 
results in the inability of the veteran to procreate without the use of 
fertility treatment. As a result of this rulemaking, VA may provide 
both a covered veteran and spouse of a covered veteran all ART 
treatments available to enrolled veterans under the medical benefits 
package, as well as IVF. The interim final rule was effective on the 
date of publication. We provided a 60-day comment period, and received 
13 comments from the public, all of which were supportive of this 
rulemaking. However, the commenters raised several issues that we 
address here. Following publication of the interim final rule, a 
statute was enacted that made several substantive changes to VA's 
authority to provide ART and IVF to covered veterans and spouses. This 
final rule reflects those changes.

DATES: Effective Date: This rule is effective on March 7, 2019.

FOR FURTHER INFORMATION CONTACT: Patricia M. Hayes, Ph.D. Chief 
Consultant, Women's Health Services, Patient Care Services, Veterans 
Health Administration, Department of Veterans Affairs, 810 Vermont Ave. 
NW, Washington, DC 20420. [email protected] (202) 461-0373. (This 
is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On January 19, 2017, VA published an interim 
final rule regarding fertility counseling and treatment available to 
certain veterans and spouses. 82 FR 6275. This interim final rulemaking 
added a new Sec.  17.380 to VA's medical regulations authorizing in 
vitro fertilization (IVF) for a veteran with a service-connected 
disability that results in the inability of the veteran to procreate 
without the use of fertility treatment. As explained in the preamble to 
the interim final rulemaking, IVF is expressly excluded from the 
medical benefits package at 38 CFR 17.38(c)(2), but to help clarify the 
full scope of fertility treatment benefits available to veterans 
through VA, the rulemaking added a Note to Sec.  17.38(c)(2) to 
reference Sec.  17.380 of the same title. 82 FR at 6275. Section 17.380 
is regulatory authority independent of the medical benefits package 
that permits VA to use the ``Medical Services'' appropriation account 
to provide IVF to certain veterans, as originally authorized by section 
260 of the Continuing Appropriations and Military Construction, 
Veterans Affairs, and Related Agencies Appropriations Act, 2017, and 
Zika Response and Preparedness Act (Pub. L. 114-223) (the ``2017 
Act''). In addition, consistent with the 2017 Act, we added a new Sec.  
17.412 stating that VA may provide fertility counseling and treatment 
using assisted reproductive technologies (ART) to a spouse of a covered 
veteran to the extent such services are consistent with the services 
available to enrolled veterans under the medical benefits package, as 
well as IVF to the spouse of a covered veteran, subject to certain 
limitations.
    On February 21, 2017, VA published a correction to the interim 
final rulemaking regarding the new regulations' expiration date. 82 FR 
11152. In particular, we corrected both sections to reflect that 
authority to provide health care services under these sections would 
expire on September 30, 2018.
    While the above-referenced 2017 Act was the original authority for 
VA's IVF program, it lapsed once the relevant funding period ended. 
VA's authority to use Medical Services Funds to provide

[[Page 8255]]

IVF services to the same cohort described in the 2017 Act was 
subsequently renewed and extended in similar form in section 236 of 
Division J, Military Construction, Veterans Affairs, and Related 
Agencies Appropriations Act, 2018, Public Law 115-141 (March 23, 2018) 
(the ``2018 Act''). Under this recent provision, VA's IVF authority is 
subject to the funding period covered by the 2018 Act, and the 
availability of appropriations, but notably the 2018 Act includes two 
changes to the IVF authority as established under the 2017 Act.
    As with the 2017 Act, the 2018 Act continues to require VA to 
deliver benefits in a manner consistent with the benefits described in 
the April 3, 2012, memorandum issued by the Assistant Secretary of 
Defense for Health Affairs on the subject of ``Policy for Assisted 
Reproductive Services for the Benefit of Seriously or Severely Ill/
Injured (Category II or III) Active Duty Service Members,'' and the 
guidance issued by the Department of Defense (DoD) to implement such 
policy, including any limitations on the amount of such benefits 
available to the members. As mentioned, however, the 2018 Act included 
two changes to the original IVF authority established under the 2017 
Act. First, under the 2018 Act, VA's IVF authority is no longer subject 
to the time periods regarding embryo cryopreservation and storage set 
forth in part III(G) and in part IV(H) of the April 2012 DoD 
memorandum. Second, the term ``assisted reproductive technology'' 
includes embryo cryopreservation and storage without limitation on the 
duration of such cryopreservation and storage. See section 
236(b)(3)(A)-(B), Div. J, of the 2018 Act. Thus, the DoD time-limits 
applicable to the duration of embryo cryopreservation and storage no 
longer apply to VA's IVF authority. Consequently, we are amending 
Sec. Sec.  17.380(b) and 17.412(b) to reflect these changes. VA's IVF 
authority is still subject to the other terms of the DoD program as 
reflected in the DoD 2012 memorandum, including those relating to 
ownership and future embryo use.
    This final rulemaking thus implements VA's IVF authority as 
described in the interim final rule and as extended and modified by the 
2018 Act. The 2018 Act is essentially an extension of the original 
authority, albeit with limited modifications aimed at increasing the 
benefit to eligible veterans and their spouses. Consequently, the 
interim final rule has been revised to accord with changes in the 
statutory authority.
    Reimbursement of adoption expenses, an infertility benefit first 
authorized in the 2017 Act and subsequently renewed in the 2018 Act, is 
the subject of a separate rulemaking.
    We provided a 60-day period for public comment of the interim final 
rule based on the original authority, i.e., the 2017 Act. The comment 
period expired on March 20, 2017. We received 13 public comments, all 
of which were generally supportive of the rule. Some commenters raised 
specific issues. Several commenters asked whether the rule would be 
applied retroactively to a course of IVF treatment completed prior to 
the effective date of the rule. Another commenter asked whether Post-
traumatic stress disorder (PTSD) is considered a service-connected 
disability that results in the inability of the veteran to procreate 
without the use of fertility treatment. Several commenters stated that 
IVF should be available to all veterans with a service-connected 
disability. A commenter stated that VA should share the cost of IVF 
with a veteran with a preexisting condition that results in the 
inability of the veteran to procreate without the use of fertility 
treatment. One commenter was concerned about the expiration of VA's 
statutory authority at the end of FY 2018. Another commenter raised the 
issues of cryopreservation and creating a nationwide network of 
providers. We address these issues below.

Retroactivity

    Three commenters asked whether the rule would be applied 
retroactively to provide VA with the authority to reimburse veterans 
for the private cost of IVF treatment completed prior to the 
publication of the interim final rule. The commenters reference a 
specific case involving two of these three commenters. One stated that 
he is a veteran with a service-connected disability that resulted in 
the inability to procreate without the use of fertility treatment. His 
spouse, who was treated outside of the VA health care system, was 
prescribed a course of IVF treatment that concluded prior to 
publication of the interim final rule. The covered veteran incurred 
out-of-pocket expenses related to this course of treatment and inquired 
about reimbursement of those expenses.
    The interim final rule was effective on January 19, 2017. It 
therefore does not cover IVF services previously furnished to eligible 
beneficiaries before that date. The Administrative Procedure Act 
generally contemplates rulemaking to apply prospectively, and the term 
``rule'' is defined at 5 U.S.C. 551(4) to mean, in pertinent part, ``an 
agency statement of general or particular applicability and future 
effect.'' The Supreme Court has stated that retroactivity is not 
favored in the law and that retroactive rulemaking is only appropriate 
when Congress has explicitly authorized it. Bowen v. Georgetown Univ. 
Hosp., 488 U.S. 204 (1988); see also Landgraf v. USI Film Products, 511 
U.S. 244 (2014). The statute is silent on the issue of retroactive 
application of the statute or of the implementing regulation VA 
published to exercise that authority. Given that the statute does not 
expressly authorize VA to engage in rulemaking that would apply 
retroactively to infertility treatment or counseling and IVF provided 
to a covered veteran or spouse prior to the effective date of the rule, 
we reiterate that VA has determined that such services provided prior 
to the effective date of the interim final rule are not covered by the 
rule.
    We make no changes based on these comments.

Post-Traumatic Stress Disorder (PTSD)

    One commenter inquired as to whether a diagnosis of PTSD would 
qualify as a service-connected disability that results in the inability 
of the veteran to procreate without the use of fertility treatment. 
That is a medical determination that must be made on a case-by-case 
basis. VA will provide benefits to a veteran with any service-connected 
disability resulting in an inability to procreate without the use of 
fertility treatment, regardless of the specific disability. We make no 
changes based on this comment.

Expanded Coverage

    Several commenters supported the rule but stated that IVF should be 
available to all veterans with a service-connected disability. One 
commenter stated that VA should share the cost of IVF with a veteran 
with a preexisting condition that results in the inability of the 
veteran to procreate without the use of fertility treatment.
    The medical benefits package at 38 CFR 17.38 defines the medical 
services provided to all enrolled veterans by VA. VA may provide care 
under the medical benefits package that is determined by appropriate 
healthcare professionals to be both necessary to promote, preserve, or 
restore the health of the veteran and in accord with generally accepted 
standards of medical practice. As part of the medical benefits package, 
VA provides many different types of medically necessary fertility 
treatments and procedures to enrolled veterans, irrespective of whether 
their condition is service-connected. These include infertility 
counseling, laboratory blood testing, surgical correction of structural

[[Page 8256]]

pathology, reversal of a vasectomy or tubal ligation, medication, and 
various other diagnostic studies or treatments and procedures. This 
list is not all-inclusive; however, IVF is expressly excluded from VA's 
medical benefits package under Sec.  17.38(c)(2).
    VA will continue to consider whether to remove the exclusion of IVF 
from the medical benefits package. We note this type of decision is 
multifactorial and complex, particularly because the benefit, if made 
available, would have to be offered to all veteran-enrollees in need of 
such care.
    The comment related to cost-sharing for IVF (provided as part of 
the medical benefits package) is thus premature. As a general matter, 
we note that copayments do, by law, apply to some veterans receiving 
care under the medical benefits package based on their enrollment 
priority group status. To address the issue of copayments, we note that 
the IVF program authorized under the 2017 Act, as renewed and extended 
under the 2018 Act, does not establish copayment obligations. Moreover, 
under the interim final rule, again as amended here to accord 
technically with the 2018 Act, VA shares the cost of cryopreservation 
and storage. Under the 2018 Act, the prior DoD time-limits on the 
period of cryopreservation and storage no longer apply to VA's IVF 
authority. We make no changes based on this comment, excluding the 
needed execution of conforming amendments.

Expiration of Authority

    One commenter was concerned that the Act is temporary, expiring on 
September 30, 2018. Although the original authority lapsed, VA's IVF 
authority was renewed and extended up through the funding period 
covered by the 2018 Act. Although this treatment authority is still 
temporary in nature (because it is again tied to a specific timeframe), 
there has been no lapse in program operations. The commenter's specific 
concern relating to the authority expiring after September 30, 2018, 
has thus been rendered moot by the 2018 Act, although we note that, in 
principle, this concern remains because the authority is still subject 
to a delimiting date. However, Congress could again renew and extend 
this authority. For this reason and to avoid the need to continually 
update these regulations when a subsequent appropriations law (or other 
law) renews this authority, we have revised Sec. Sec.  17.380(b) and 
17.412(b) to eliminate the sentence therein that specifies the 
expiration date. We make no other changes based on this comment.

Cryopreservation

    One commenter stated that the fertility counseling and treatment 
program would be most cost-efficient if servicemembers were allowed to 
provide a sperm or egg for cryopreservation prior to entering active 
combat. The commenter noted that delayed sample collection would 
inevitably result in cases where the servicemember suffers a pelvic 
injury so severe that sample collection is no longer medically 
possible. The commenter asserted that cryopreservation of sperm or ovum 
prior to entry into active combat would save money and allow 
servicemembers who have prioritized childbearing to preserve the 
ability to procreate. The commenter further noted that approximately 9% 
of servicemembers wounded in action in Operation Iraqi Freedom and 
Operation Enduring Freedom received genitourinary injuries. The 
commenter also provided cost estimates related to cryopreservation and 
related fertility treatment.
    Semen cryopreservation (commonly called sperm banking) is a 
procedure to preserve sperm cells. Oocyte cryopreservation (egg 
freezing) is a process in which a woman's egg (oocytes) is extracted, 
frozen and stored. The semen or egg can later be thawed and used to 
create an embryo that can then be implanted in a uterus. VA does 
provide cryopreservation services in those cases where an appropriate 
health care professional determines that the care is needed to promote, 
preserve, or restore the health of the veteran and is in accord with 
generally accepted standards of medical practice. However, the decision 
on whether to offer cryopreservation of sperm or ovum to servicemembers 
prior to participating in combat operations lies with DoD, not VA. We 
make no changes based on this comment.

Provider Network

    One commenter recommended that VA establish a nationwide 
standardized network of reproductive medicine providers. The commenter 
stated this is most important for servicemembers and military families 
who must frequently move to new duty stations. Further, veterans and 
active duty servicemembers may provide a sample in one location and 
then later receive treatment in a different location.
    The creation of provider networks (for purposes of VA's ART program 
or any other VHA clinical program) is beyond the scope of this 
rulemaking. However, we note that VA is working with reproductive 
medicine and infertility specialists both in VA and in the community to 
provide necessary fertility counseling and treatment to veterans and 
spouses covered by 38 CFR 17.380 and 17.412. We make no changes based 
on this comment.
    Based on the rationale set forth in the interim final rule and in 
this document, VA adopts the interim final rule as a final rule, as 
modified to accommodate the changes made by the 2018 Act, as noted 
above.

Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b)(B), the Secretary of Veterans 
Affairs concluded that there was good cause to publish amendments to 
this rule without prior opportunity for public comment, and to publish 
this rule with an immediate effective date. The 2018 Act revised our 
authority to provide ART and IVF to covered veterans and spouses by 
removing time limitations on cryopreservation and storage of embryos 
reflected in the April 3, 2012 DoD memorandum titled ``Policy for 
Assisted Reproductive Services for the Benefit of Seriously or Severely 
Ill/Injured (Category II or III) Active Duty Service Members.'' Prior 
to this revision VA was required to provide ART and IVF benefits to 
covered veterans and spouses consistent with benefits relating to 
reproductive assistance provided to a member of the Armed Forces who 
incurs a serious injury or illness on active duty as described in that 
memorandum. This final rule incorporates a specific requirement 
mandated by Congress. Accordingly, this final rule is exempt from the 
prior notice-and-comment and delayed-effective-date requirements of 5 
U.S.C. 553(b) and (d).

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final rulemaking, represents VA's implementation of its legal authority 
on this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

[[Page 8257]]

Regulatory Flexibility Act

    The Secretary hereby certifies that final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule directly affects only individuals and will not 
directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), 
this rulemaking is exempt from the initial and final regulatory 
flexibility analysis requirements of 5 U.S.C. 603 and 604.

Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (OMB), as any regulatory action that is likely 
to result in a rule that may: (1) Have an annual effect on the economy 
of $100 million or more or adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action and determined that the 
action is not a significant regulatory action under Executive Order 
12866. VA's impact analysis can be found as a supporting document at 
http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's website at 
http://www.va.gov/orpm by following the link for VA Regulations 
Published from FY 2004 through FYTD. This rule is not an E.O. 13771 
regulatory action because this rule is not significant under E.O. 
12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.012--Veterans 
Prescription Service; 64.029--Purchase Care Program; 64.040--VHA 
Inpatient Medicine; 64.041--VHA Outpatient Specialty Care; 64.042--VHA 
Inpatient Surgery; 64.045--VHA Outpatient Ancillary Services; 64.047--
VHA Primary Care; 64.050--VHA Diagnostic Care.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Government contracts, 
Grant programs-health, Grant programs-veterans, Health care, Health 
facilities, Health professions, Health records, Homeless, Medical and 
Dental schools, Medical devices, Medical research, Mental health 
programs, Nursing homes, Reporting and recordkeeping requirements, 
Travel and transportation expenses, Veterans.

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Robert L. 
Wilkie, Secretary, Department of Veterans Affairs, approved this 
document on January 11, 2019, for publication.

    Dated: March 3, 2019.
Michael P. Shores,
Director, Office of Regulation Policy & Management, Office of the 
Secretary, Department of Veterans Affairs.

    For the reasons set forth in the preamble, the VA amends 38 CFR 
part 17 as follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 is amended in the entry for 
Sec. Sec.  17.380, 17.390 and 17.412 by adding ``, and sec. 236, div. 
J, Pub. L 115-141, 132 Stat. 348'' immediately after ``857'' to read in 
part as follows:

    Authority:  38 U.S.C. 501, and as noted in specific sections.
* * * * *

0
2. Amend Sec.  17.380 by revising paragraph (b) to read as follows:


Sec.  17.380   In vitro fertilization treatment.

* * * * *
    (b) The time periods regarding embryo cryopreservation and storage 
set forth in part III(G) and in part IV(H) of the memorandum referenced 
in paragraph (a)(3) of this section do not apply. Embryo 
cryopreservation and storage may be provided to an individual described 
in paragraph (a)(1) of this section without limitation on the duration 
of such cryopreservation and storage.

0
3. Amend Sec.  17.412 by revising paragraph (b) to read as follows:


Sec.  17.412   Fertility counseling and treatment for certain spouses.

* * * * *
    (b) The time periods regarding embryo cryopreservation and storage 
set forth in part III(G) and in part IV(H) of the memorandum referenced 
in paragraph (a) of this section do not apply. Embryo cryopreservation 
and storage may be provided to a spouse of a covered veteran without 
limitation on the duration of such cryopreservation and storage.

[FR Doc. 2019-04096 Filed 3-6-19; 8:45 am]
 BILLING CODE 8320-01-P