[Federal Register Volume 84, Number 123 (Wednesday, June 26, 2019)]
[Proposed Rules]
[Pages 30060-30062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13553]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 9

RIN 2900-AQ49


Service Members Group Life Insurance--Definition of Stillborn 
Child for Purposes of Coverage

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend the 
regulation defining ``member's stillborn child'' for purposes of the 
Servicemembers' Group Life Insurance (SGLI) program. The current 
definition of a ``member's stillborn child'' is that a fetus must weigh 
at least 350 grams or, if the fetal weight is unknown, duration in 
utero is at least 20 completed weeks of gestation. VA proposes to amend 
the definition to allow reliance upon the fetus' gestational age even 
if the fetus' weight is known. As a result, a fetus whose duration in 
utero is 20 completed weeks of gestation but who weighs less than 350 
grams would qualify as a ``member's stillborn child.''

DATES: Comments must be received on or before August 26, 2019.

ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to: Director, Office of 
Regulation Policy and Management (00REG), Department of Veterans 
Affairs, 810 Vermont Ave. NW, Room 1064, Washington, DC 20420; or by 
fax to (202) 273-9026. (This is not a toll-free telephone number.) 
Comments should indicate that they are submitted in response to ``RIN 
2900-AQ49--Servicemembers' Group Life Insurance, Definition of 
Stillborn Child.''
    All comments received will be available for public inspection in 
the Office of Regulation Policy and Management, Room 1064, between the 
hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except 
holidays). Please call (202) 461-4902 for an appointment. (This is not 
a toll-free telephone number.) In addition, comments may be viewed 
online through the Federal Docket Management System (FDMS) at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ruth Berkheimer, Insurance Specialist, 
Department of Veterans Affairs Insurance Center (310/290B), 5000 
Wissahickon Avenue, Philadelphia, PA 19144, (215) 842-2000, ext. 4275. 
(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: The Veterans' Survivor Benefits Improvements 
Act of 2001, Public Law 107-14, 4, 115 Stat. 25, 26-28, authorized 
automatic insurance coverage for spouses and dependent children of 
servicemembers (hereinafter ``servicemembers'' or ``members'') enrolled 
in Servicemembers' Group Life Insurance (SGLI). This insurance is 
referred to as Family Servicemembers' Group Life Insurance (FSGLI), 
which provides a maximum of $100,000 of coverage for a spouse, not to 
exceed the servicemember's SGLI coverage amount, and $10,000 for each 
dependent child. The servicemember pays the premium for spousal 
coverage, while dependent children are insured at no cost. Members 
cannot decline or reduce coverage for dependent children if the member 
is insured under SGLI. See 38 U.S.C. 1967(a)(3)(B). Dependent child 
coverage begins on the date of birth or, ``if the child is not the 
natural child of the member, the date on which the child acquires 
status as an insurable dependent of the member.'' 38 U.S.C. 
1967(a)(5)(F).
    Section 402 of the Veterans' Benefits Improvement Act of 2008, 
Public Law 110-389, 122 Stat. 4145, 4174, expanded the definition of 
``insurable dependent'' for SGLI purposes to include a ``member's 
stillborn child.'' On November 18, 2009, VA added paragraph (k)(1) to 
38 CFR 9.1 to define the term ``member's stillborn child'' for purposes 
of SGLI coverage to mean:
    A member's natural child--
    (i) Whose death occurs before expulsion, extraction, or delivery; 
and
    (ii) Whose--
    (A) Fetal weight is 350 grams or more; or
    (B) If fetal weight is unknown, duration in utero is 20 completed 
weeks of gestation or more, calculated from the date the last normal 
menstrual period began to the date of expulsion, extraction, or 
delivery.

74 FR 59,478, 59,479 (Nov. 18, 2009). (The word ``natural'' was changed 
to ``biological'' in 2012. 77 FR 70374, 70376 (Nov. 26, 2012)). VA 
promulgated this definition pursuant to S. Rep. No. 110-449, at 41 
(2008), which stated that the ``Committee expects VA to . . . define 
the term [``stillborn child''] . . .

[[Page 30061]]

consistent with the 1992 recommended reporting requirements'' of fetal 
deaths of the Model State Vital Statistics Act and Regulations as 
drafted by the Centers for Disease Control and Prevention's National 
Center for Health Statistics. Id. at 59,478. Since the rule was 
promulgated in 2009, VA has been asked to reevaluate the stillbirth 
standard by servicemembers whose claims have been denied because the 
fetus did not meet the minimum weight of 350 grams but was 20 weeks or 
more in gestation.
    Although the 1992 Model Act recommended the reporting requirements 
for fetal death, states have the authority enact their own reporting 
requirements, and as a result, the reporting criteria for fetal death 
enacted by states vary as to birth weight and gestational age. 
MacDorman MF, Fetal and Perinatal Mortality: United States, 2013. Natl 
Vital Stat Rep 2015 Jul; 64(8), Table I. We believe that only three 
states, Delaware, Montana, and Texas, currently use the criteria for 
reporting fetal deaths in the 1992 Model Act. Del. Code Ann. tit. 16, 
Sec.  3124 (2019); Mont. Code Ann Sec.  50-15-403(1) (2019); 25 Tex. 
Admin. Code Sec.  181.7(a) (2019). We note that, nonetheless, Montana 
defines a ``stillbirth'' as a fetal death occurring after 20 weeks of 
gestation. Mont. Code Ann Sec.  50-15-101(15) (2019). Most states 
require either that a death be reported if a fetus is 20 weeks of 
gestation or 350 grams, or if it is 20 weeks of gestation. Fetal and 
Perinatal Mortality: United States, 2013, Table I. In addition, the 
American Academy of Pediatrics (AAP) Committee on Fetus and Newborn, 
uses the term ``stillborn'' to describe fetal deaths at 20 weeks' 
gestation or more, without regard to a fetus' weight. Barfield WD, 
Committee on Fetus and Newborn. Clinical Reports--Standard Terminology 
for Fetal, Infant, and Perinatal Deaths. Pediatrics 2011 Jul; 128(1): 
177-81.
    The cutoff of 350 grams is the 50th percentile for weight at 20 
weeks of gestation. American College of Obstetricians & Gynecologists 
(ACOG) Practice Bulletin No. 102: Management of Stillbirth. Obstet 
Gynecol. 2009 Mar; 113(3):748-6. There are many variables that may 
account for a fetus' gestational weight, e.g., mother's health, 
nutrition, height, weight, parity, race, ethnicity, tobacco use, and 
congenital anomalies. Buck Louis GM, Racial/Ethnic Standards for Fetal 
Growth, the NICHD Fetal Growth Studies. Am J Obstet Gynecol 2015 Oct.; 
213(4): 449.e1-449.e41; Gardosi J, A customized standard to assess 
fetal growth in a US population. Am J Obstet Gynecol 2009 Jul; 201: 
25.e1-7; Diego MA, Prenatal depression restricts fetal growth. Early 
Hum Dev. 2009 Jan.; 85(1): 65-70; Alexander GR, 1994-1996 U.S. 
Singleton Birth Weight Percentiles for Gestational Age by Race, 
Hispanic Origin, and Gender. Matern Child Health J 1999; 3(4) 225-31. 
We believe that reliance on a fetus' gestation only in cases in which 
the fetus' weight is unknown creates inequities because a fetus may 
weigh less than 350 grams due to these factors but nonetheless be 20 
weeks of gestation. We therefore propose to amend the criteria in Sec.  
9.20(k)(1) to include a larger cohort of stillborn children.
    As part of VA's research, VA contacted obstetrics and gynecology 
professionals about the FSGLI stillbirth criteria to obtain their 
input. The organizations contacted were the American Board of 
Obstetrics and Gynecology (ACOG), VA Women's Health Services, 
Children's Hospital of Philadelphia, VA Palo Alto Health Care System, 
and Stanford University School of Medicine. The responses received 
indicated that revising the portion of the current definition of 
stillborn child in 38 CFR 9.1(k)(1)(ii) to provide that either a weight 
of 350 grams or a gestation period of 20 weeks or greater in utero 
irrespective of the fetus' weight would be in keeping with current, 
sound medical understanding of pre-term infants. A physician from the 
ACOG stated that ``VA offers a valuable benefit to families who 
experienced a stillbirth, and I encourage VA to use a more expansive 
definition to determine which fetal loss would be covered.'' Similarly, 
medical professionals from the Children's Hospital of Philadelphia, 
Division of Neonatology, stated that, ``using either the weight 
criteria or the gestational age criteria . . . to qualify is very 
reasonable as those targets would capture a lower limit of viability.''
    Given that the vast majority of states require reporting the death 
of a fetus at 20 weeks of gestation without regard to weight; the AAP 
describes the term ``stillbirth'' as fetal deaths of 20 weeks of 
gestation or more; and the inequities that result from reliance on a 
fetus' gestation only in cases in which the fetus' weight is unknown, 
VA proposes to eliminate the requirement in 38 CFR 9.1(k)(1)(ii)(B) 
that VA may rely on a fetus' gestational period only in cases in which 
the fetus' weight is unknown. Section 9.1(k)(1) would instead provide 
that a member's biological child whose death occurs before expulsion, 
extraction, or delivery and who meets either component of the 
definition, i.e., fetal weight is at least 350 grams or a gestation 
period of 20 completed weeks or greater in utero, calculated from the 
date the last normal menstrual period began to the date of expulsion, 
extraction, or delivery will satisfy the definition of a member's 
stillborn child.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as proposed to be 
revised by this proposed rulemaking, would represent the exclusive 
legal authority on this subject. Other than future amendments to this 
regulation or governing statutes, no contrary guidance or procedures 
would be authorized. All existing or subsequent VA guidance would be 
read to conform with this rulemaking if possible or, if not possible, 
such guidance would be superseded by this rulemaking.

Paperwork Reduction Act

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

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 proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

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,'' requiring review by the Office of 
Management and Budget (OMB), unless OMB waives such review, 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

[[Page 30062]]

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 this Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed regulatory action have been examined and 
it has been determined to be a significant regulatory action under 
Executive Order 12866, because it may raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in this Executive Order. 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 Fiscal Year to 
Date.'' This proposed rule is not expected to be subject to the 
requirements of EO13771 because this proposed rule is expected to 
result in no more than de minimis costs.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would 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. Therefore, pursuant to 5 U.S.C. 605(b), this proposed 
rulemaking is exempt from the initial and final regulatory flexibility 
analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number and title for the 
program affected by this document is 64.103, Life Insurance for 
Veterans.

List of Subjects in 38 CFR Part 9

    Life insurance, Military Personnel, Veterans.

Signing Authority

    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 May 3, 2019, for publication.

    Date: June 21, 2019.
Luvenia Potts,
Program Specialist, Office of Regulation Policy & Management, Office of 
the Secretary, Department of Veterans Affairs.

    For the reasons stated in the preamble, VA proposes to amend 38 CFR 
part 9 as set forth below:

PART 9--SERVICEMEMBERS' GROUP LIFE INSURANCE AND VETERANS' GROUP 
LIFE INSURANCE

0
1. The authority citation for part 9 continues to read as follows:

    Authority: 38 U.S.C. 501, 1965-1980A, unless otherwise noted.


0
2. Amend Sec.  9.1 by revising paragraph (k)(1) to read as follows:


Sec.  9.1  Definitions.

* * * * *
    (k)(1) The term member's stillborn child means a member's 
biological child--
    (i) Whose death occurs before expulsion, extraction, or delivery; 
and
    (ii) Whose--
    (A) Fetal weight is 350 grams or more; or
    (B) Duration in utero is 20 completed weeks of gestation or more, 
calculated from the date the last normal menstrual period began to the 
date of expulsion, extraction, or delivery.
* * * * *
[FR Doc. 2019-13553 Filed 6-25-19; 8:45 am]
BILLING CODE 8320-01-P