[Federal Register Volume 84, Number 240 (Friday, December 13, 2019)]
[Rules and Regulations]
[Pages 68046-68048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26751]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AQ01
Reimbursement of Qualifying Adoption Expenses for Certain
Veterans
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 statutory authority, an interim final rule
providing for reimbursement of qualifying adoption expenses incurred by
a veteran with a service-connected disability that results in the
inability of the veteran to procreate without the use of fertility
treatment. Under the Continuing Appropriations and Military
Construction, Veterans Affairs, and Related Agencies Appropriations
Act, 2017, and Zika Response and Preparedness Act, VA may use funds
appropriated or otherwise made available to VA for the ``Medical
Services'' account to provide adoption reimbursement to these veterans.
Under the law, reimbursement may be for the adoption-related expenses
for an adoption that is finalized after the date of the enactment of
this Act under the same terms as apply under the adoption reimbursement
program of the Department of Defense (DoD), as authorized in DoD
Instruction 1341.09, including the reimbursement limits and
requirements set forth in such instruction. This rulemaking implements
the new adoption reimbursement benefit for covered veterans.
DATES: Effective date: This rule is effective on December 13, 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, (202) 461-0373. (This is not a toll-free
number.)
SUPPLEMENTARY INFORMATION: Public Law 114-223, the Continuing
Appropriations and Military Construction, Veterans Affairs, and Related
Agencies Appropriations Act, 2017, and Zika Response and Preparedness
Act (the ``2017 Act''), section 260, allows VA to use appropriated
funds available to VA for the Medical Services account to provide
fertility counseling and treatment using assisted reproductive
technology (ART) to a covered veteran or the spouse of a covered
veteran, or adoption reimbursement to a covered veteran. On January 19,
2017, VA published an interim final rule at 82 FR 6275 addressing
fertility counseling and treatment using ART, including in vitro
fertilization (IVF) (which is a type of ART), for both covered veterans
and spouses. On March 5, 2018, VA published an interim final rule to
implement our authority to provide reimbursement of qualifying adoption
[[Page 68047]]
expenses to covered veterans (83 FR 9208). The latter interim final
rule was effective on the date of publication. The rule included a
provision, consistent with funding authority under the 2017 Act,
stating that authority to provide reimbursement for qualifying adoption
expenses incurred by a covered veteran in the adoption of a child under
18 years of age expires September 30, 2018.
Following publication of the interim final rule Congress enacted a
bill renewing and revising our authority to provide the adoption
reimbursement benefit. While 2017 Act was the original authority for
VA's adoption reimbursement program, it lapsed once the relevant
funding period ended. VA's authority to provide reimbursement of
qualifying adoption expenses to the same cohort described in the 2017
Act was subsequently renewed and extended in nearly identical 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'') and Section 235 of Division C, Military
Construction, Veterans Affairs, and Related Agencies Appropriations
Act, 2019, Public Law 115-244 (September 21, 2018) (the ``2019 Act'').
Under this most recent authority, VA's adoption expense reimbursement
program remains subject to the funding period covered by the 2019 Act
and the availability of appropriations.
When we published the interim final rule, we provided a 60-day
comment period, which expired on May 4, 2018. We received 4 comments
from the public, all of which were supportive of this rulemaking.
However, the commenters raised several issues that we address here. We
make no changes based on public comments. VA adopts as final, with
changes based on subsequent statutory authority, an interim final rule
providing for reimbursement of qualifying adoption expenses incurred by
a veteran with a service-connected disability that results in the
inability of the veteran to procreate without the use of fertility
treatment.
Per the 2017 Act, 2018 Act, and 2019 Act, veterans with a service-
connected disability that results in the inability of the veteran to
procreate without the use of fertility treatment are authorized to
receive reimbursement for certain adoption-related expenses for an
adoption that is finalized after September 29, 2016, (the date the 2017
Act was enacted) under the same terms as apply under the adoption
reimbursement program of DoD, as authorized in DoD Instruction 1341.09,
including the reimbursement limits and requirements set forth in that
DoD policy. DoD Instruction 1341.09, ``DoD Adoption Reimbursement
Policy'' (July 5, 2016) establishes policy, assigns responsibilities
within DoD, and provides procedures for the reimbursement of qualifying
adoption expenses incurred by members of the Military Services
(including document submission requirements) pursuant to 10 U.S.C.
1052. That statute was enacted in 1991 and establishes the parameters
of DoD's adoption reimbursement program. The interim final rule added a
new Sec. 17.390 to provide for reimbursement of qualifying adoption
expenses to covered veterans, consistent with the policies and
procedures established by DoD in implementing 10 U.S.C. 1052.
Section 17.390(b)(1) states that no more than $2,000 may be
reimbursed under this section to a covered veteran, or to two covered
veterans who are spouses of each other, for expenses incurred in the
adoption of a child. In the case of two married covered veterans, only
one spouse may claim reimbursement for any one adoption. Paragraph
(b)(2) states that no more than $5,000 may be paid under this section
to a covered veteran in any calendar year. In the case of two married
covered veterans, the couple is limited to a maximum of $5,000 per
calendar year.
One commenter suggested changing the reimbursement limits so two
married covered veterans are not limited to the same reimbursement
level of just a single covered veteran. The commenter recommended that
in cases of two married covered veterans, they would have twice the
benefit as a single covered veteran. Otherwise, a married veteran whose
non-veteran spouse received an adoption benefit from an employer would
be at an advantage relative to two married veterans. The commenter
stated that allowing the benefit to be limited to each veteran (and not
per family) would place VA in a position of not disadvantaging veterans
who are spouses of each other.
One commenter noted that under paragraph (b) funds are limited by
time period rather than by child. The commenter stated that this
limitation could discourage veterans who may wish to adopt older
children who are siblings, keeping them together. The commenter
recommended addressing the limitation on adoption expense reimbursement
by child rather than per year.
As noted above, VA is required by statute to administer its
adoption reimbursement program under the same terms as apply under the
adoption reimbursement program of DoD, as authorized in DoD Instruction
1341.09, including the reimbursement limits and requirements set forth
in that DoD policy. The DoD policy implements 10 U.S.C. 1052, which
provides that servicemembers may request reimbursement up to $2,000 per
adoptive child or a maximum of $5,000 per calendar year for qualifying
expenses. In the case of two married military servicemembers, only one
member may claim reimbursement and the couple is limited to a maximum
of $5,000 per calendar year. Our rule is consistent with these
provisions. Per 38 CFR 17.390(a)(2), the application for reimbursement
must be submitted no later than 2 years after the adoption is final or,
in the case of adoption of a foreign child, no later than 2 years from
the date a certificate of United States citizenship is issued. This is
also consistent with the DoD policy. The only substantive difference in
our program is that, per statute, VA may reimburse qualifying adoption
expenses incurred by covered veterans only for adoptions finalized
after September 29, 2016, the date the 2017 Act was enacted. VA has no
statutory authority to expand the program to allow two covered veterans
who are spouses to each file an application for reimbursement of
qualifying adoption expenses, or increase either the per-child or
annual reimbursement limits. Likewise, we do not have the statutory
authority to alter the time limits reflected in this rule. We make no
changes based on these comments.
One commenter asked whether a Vietnam veteran rated at 100%
service-connected disability based on conditions related to Agent
Orange exposure who, since 1970, has been unable to father a child is
eligible for reimbursement of qualifying adoption expenses. Eligibility
for reimbursement of qualifying adoption expenses is not based on
status as a combat veteran or a particular rating of a service-
connected disability. Reimbursement of qualifying adoption expenses is
available to covered veterans with a service-connected disability that
results in the inability of the veteran to procreate without the use of
fertility treatment. Regardless of the disability rating or the cause
of said disability, the veteran would be eligible for this benefit if
the rated service-connected disability prevents the veteran from
procreating without the use of fertility treatment. We make no changes
based on this comment.
Finally, based on the 2019 Act, we remove paragraph (f) which
provided that authority to provide reimbursement
[[Page 68048]]
for qualifying adoption expenses incurred by a covered veteran in the
adoption of a child under 18 years of age expires September 30, 2018.
Under the most recent authority, VA's adoption expense reimbursement
program remains subject to the funding period covered by the 2019 Act
and the continuing availability of appropriations. 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
eliminated the section that specifies an expiration date. VA's ability
to provide reimbursement will remain subject to the limitations
provided in the applicable statutory provisions.
Based on the rationale set forth in the interim rule and in this
document, VA adopts the interim final rule as a final rule, with a
technical amendment consistent with enactment of the 2019 Act.
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 provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521). As required by 44 U.S.C. 3507(d), VA submitted this information
collection to the Office of Management and Budget (OMB) for its review.
OMB approved the new information collection requirements associated
with the final rule under a 6-month emergency clearance and assigned
OMB control number 2900-0860. OMB control number 2900-0860 expired on
March 31, 2019. VA has applied to OMB for a renewal of this information
collection under a separate document and notice of OMB approval for
this information collection will be published in a future Federal
Register document.
Regulatory Flexibility Act
The Secretary hereby certifies that 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. 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.
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 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.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
Catalog of Federal Domestic Assistance
There are no Catalog of Federal Domestic Assistance numbers and
titles affected by this document.
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.
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 December 6, 2019, for publication.
Consuela Benjamin,
Regulation Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
For the reasons set forth in the preamble, the VA adopts the
interim final rule amending 38 CFR part 17, which published on March 5,
2018 (83 FR 9208), as final with the following changes:
PART 17--MEDICAL
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1. The authority citation for part 17 is amended in the authority for
Sec. Sec. 17.380, 17.390 and 17.412 by adding, immediately after
``857'', ``and sec. 236, Public Law 115-141, 132 Stat. 348'' to read in
part as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
Sec. 17.390 [Amended]
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2. Amend Sec. 17.390 by removing paragraph (f).
[FR Doc. 2019-26751 Filed 12-12-19; 8:45 am]
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