[Federal Register Volume 85, Number 51 (Monday, March 16, 2020)]
[Rules and Regulations]
[Pages 14800-14802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05042]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 9
RIN 2900-AQ49
Servicemembers' Group Life Insurance--Definition of Member's
Stillborn Child for Purposes of Coverage
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is amending the
definition of ``member's stillborn child'' for purposes of
Servicemembers' Group Life Insurance (SGLI) to mean a fetus whose fetal
weight is 350 grams or more or whose duration in utero is 20 completed
weeks of gestation. As a result, a fetus whose duration in utero is 20
completed weeks of gestation but who weighs less than 350 grams
qualifies as a ``member's stillborn child.''
DATES: Effective Date: This rule is effective March 16, 2020.
Applicability Date: VA will apply this rule to stillbirths
occurring on or after March 16, 2020.
FOR FURTHER INFORMATION CONTACT: Ruth Berkheimer, 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: On June 26, 2019, VA published a proposed
rule in the Federal Register (84 FR 30060), which would amend the
Family SGLI definition of the term ``member's stillborn child.'' VA
provided a 60-day comment period on the proposed rule, which ended on
August 26, 2019. VA received more than 300 comments, all of which
supported the rulemaking. However, forty-two of the comments, while
supporting the proposed rule, included suggestions to revise the
proposed rule. VA has organized the issues raised by these commenters
by topic.
A. Eliminate Weight/Gestation Requirements
Some commenters stated that the final rule should eliminate weight
and gestation requirements and cover all stillbirths, while other
commenters suggested eliminating the weight requirement in the rule.
When section 402 of the Veterans' Benefits Improvement Act of 2008,
Public Law 110-389, 122 Stat. 4145, 4174, was enacted, authorizing
Family SGLI for a ``member's stillborn child,'' Congress indicated that
Family SGLI coverage is not intended to cover all stillborn children.
Rather, S. Rep. No. 110-449, at 41 (2008), stated that the Senate
``Committee [on Veterans' Affairs] expects VA to . . . define the term
[``member's stillborn child''] . . . 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.
The Model Act recommends a state reporting requirement of fetal deaths
involving fetuses weighing 350 grams or more, or if weight is unknown,
of 20 completed weeks or more of gestation, calculated from the date
the last normal menstrual period began to the date of delivery. Model
Act section 15. A regulatory definition of ``member's stillborn child''
that contains no weight and/or gestational requirements would be
inconsistent with Congressional intent. VA therefore will not make any
changes based on these comments.
B. Retroactive Family SGLI Coverage
Ten commenters stated that the final rule should provide insurance
coverage for stillbirths occurring before promulgation of this
regulation. 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.'' It is well-
settled that agencies generally lack authority to issue retroactive
regulations to implement a new policy absent an express statutory grant
of such authority. Although agencies must be free to make and change
policies within the boundaries established by Congress, Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
863-64 (1984), the Supreme Court has held that ``[r]etroactivity is not
favored in the law. Thus, congressional enactments and administrative
rules will not be construed to have retroactive effect unless their
language requires this result.'' Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 208 (1988).
Further, ``a statutory grant of legislative rulemaking authority
will not, as a general matter, be understood to encompass the power to
promulgate retroactive rules unless the power is conveyed by Congress
in express terms.'' Id. ``'The standard for finding such unambiguous
direction is a demanding one.''' Bernklau v. Principi, 291 F.3d 795,
805 (Fed. Cir. 2002) (quoting Immigration & Naturalization Serv. v. St.
Cyr, 533 U.S. 289, 316-317 (2001)). For example, in Liesegang v.
Secretary of Veterans Affairs, 312 F.3d 1368, 1377 n.1 (Fed. Cir.
2002), the U.S. Court of Appeals for the Federal Circuit stated that
``settled and binding precedent'' precluded the court from giving
retroactive effect to a VA regulation creating a presumption of service
connection for type-2 diabetes for Vietnam veterans exposed to
herbicides. The court stated that 38 U.S.C. 1116, which authorized the
regulation at issue, did not contain ``express and unambiguous
permission'' for VA to promulgate a retroactive regulation. Id.
VA declines to make this amendment to section 9.1(k)(1) retroactive
for the following reasons. VA promulgated 38 CFR 9.1(k)(1) pursuant to
38 U.S.C. 501(a), which provides the Secretary of Veterans Affairs with
the authority to prescribe all ``necessary'' and ``appropriate'' rules,
including interpretative rules, to carry out the laws administered by
the VA. That
[[Page 14801]]
statute contains no express and unambiguous permission to issue
retroactive regulations or policies.
Assuming arguendo that VA's rulemaking authority under section
501(a) extends to assigning a retroactive effective date in the
abstract, doing so would be inconsistent with VA's usual and
longstanding practice to make substantive regulations effective
prospectively. E.g. 83 FR 53179 (Oct. 22, 2018); McKinney v. McDonald,
796 F.3d 1377, 1384-85 (Fed. Cir. 2015) (VA did not act unreasonably in
using prospective effective date for liberalization regulation). This
policy ``helps ensure that all new liberalizing regulations are applied
in a fair and consistent manner'' and ``serves the interests of orderly
administration and clarity in the law.'' 83 FR 53179. A retroactive
effective date for this regulation would also be inconsistent with
Congress' approach in enacting title-38 statutes, including statutes
authorizing Family SGLI and providing Family SGLI coverage for
stillborn children. Veterans' Survivor Benefits Improvements Act of
2001, Public Law 107-14, 4(g), 115 Stat. 25, 30 (making Family SGLI
effective on first day of first month that begins more than 120 days
after enactment of Act); Public Law 110-389, 402, 122 Stat. 4174. VA
will therefore make the amendment to section 9.1(k)(1) effective on the
date of publication of this final-rule notice, and the rule will be
applicable to stillbirths occurring on or after that date.
C. Family SGLI Coverage for Medical Expenses Related to Pregnancy or
Delivery
One commenter suggested that the final rule should cover medical
expenses related to any type of pregnancy or delivery. Section
1967(a)(1) of title 38, United States Code, provides automatic SGLI
coverage on the life of an insured's dependent spouse or children. The
statute does not authorize reimbursement of medical expenses, including
those related to pregnancy or delivery. Therefore, VA will not make any
changes based on this comment.
D. Coverage for Abortions
One commenter expressed support and appreciation for the proposal
to extend coverage to situations where fetal weight is less than 350
grams. The comment seems to suggest that an aborted fetus could qualify
as a ``stillborn child'' absent the change caused by this final rule.
We note that when VA promulgated 38 CFR 9.1(k) in 2009 to define
``member's stillborn child,'' we specifically excluded, in paragraph
(k)(2), a fetus or child extracted for purposes of an abortion from the
definition. VA explained that this exclusion was consistent with
Congressional intent that VA issue implementing regulations that define
the term ``stillborn child'' consistent with the 1992 recommended
reporting requirements of the Model State Vital Statistics Act and
Regulations. 74 FR 59748 (Nov. 18, 2009). The Model Act recommends a
state reporting requirement of fetal deaths involving fetuses weighing
350 grams or more, or if weight is unknown, of 20 completed weeks or
more of gestation, calculated from the date the last normal menstrual
period began to the date of delivery. Id.; Model Act section 15. In
addition, the Model Act defines ``fetal death'' to mean ``death prior
to the complete expulsion or extraction from its mother of a product of
human conception, irrespective of the duration of pregnancy and which
is not an induced termination of pregnancy.'' Id.; Model Act section
(1)(b). VA has not proposed amending current 38 CFR 9.1(k)(2), which
provides that the term ``member's stillborn child'' does not include
any fetus or child extracted for purposes of an abortion. Therefore, VA
will not make changes based on this comment.
Based on the rationale set forth in the Supplementary Information
to the proposed rule and in this final rule, VA adopts the proposed
rule, without change, as a final rule.
Administrative Procedure Act
The Secretary of Veterans Affairs finds that there is good cause
under 5 U.S.C. 553(d)(1) and (d)(3) to publish this rule with an
immediate effective date rather than 30 days after publication. This
rule relieves a restriction on coverage for a member's stillborn child.
The rule will be beneficial to servicemembers and their families and
was uniformly supported by the public comments we received. Making the
rule effective immediately will allow Family SGLI to be paid to
servicemembers for stillbirths that qualify under the liberalizing
amendment to Sec. 9.1(k) and may occur within the 30-day period
following publication.
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).
Regulatory Flexibility Act
The Secretary hereby certifies that the adoption of this 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. Family SGLI is part of the SGLI policy purchased by the
Secretary of Veterans Affairs from Prudential Insurance Company of
America. 38 U.S.C. 1966(a). Premiums for Family SGLI are deducted from
servicemembers' basic pay or other pay by the Secretary of each
uniformed service. 38 U.S.C. 1969(a). The Office of Servicemembers'
Group Life Insurance, the administrative office established by
Prudential pursuant to 38 U.S.C. 1966(b), administers Family SGLI,
decides claims, and pays out proceeds. As a result, this rulemaking
will not directly affect small entities. Therefore, pursuant to 5
U.S.C. 605(b), the initial and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do not apply.
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.
The Office of Information and Regulatory Affairs has determined that
this rule 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 Fiscal Year to Date.
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
[[Page 14802]]
1 year. This final rule will have no such effect on State, local, and
tribal governments, or on the private sector.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs has determined that
this rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).
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 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. Pamela
Powers, Chief of Staff, Department of Veterans Affairs, approved this
document on February 25, 2020, for publication.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
the Secretary, Department of Veterans Affairs.
For the reasons set forth in the preamble VA amends 38 CFR part 9
as follows:
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. 2020-05042 Filed 3-13-20; 8:45 am]
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