Reimbursement of Qualifying Adoption Expenses for Certain Veterans, 68046-68048 [2019-26751]
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68046
Federal Register / Vol. 84, No. 240 / Friday, December 13, 2019 / Rules and Regulations
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continue to apply to TEAS Plus
applications as a requirement for
receiving a reduced filing fee.
Rulemaking Requirements
Administrative Procedure Act: The
changes in this rulemaking involve rules
of agency practice and procedure, and/
or interpretive rules. See Perez v. Mortg.
Bankers Ass’n, 135 S. Ct. 1199, 1204
(2015) (Interpretive rules ‘‘advise the
public of the agency’s construction of
the statutes and rules which it
administers.’’ (citation and internal
quotation marks omitted)); Nat’l Org. of
Veterans’ Advocates v. Sec’y of Veterans
Affairs, 260 F.3d 1365, 1375 (Fed. Cir.
2001) (Rule that clarifies interpretation
of a statute is interpretive.); Bachow
Commc’ns Inc. v. FCC, 237 F.3d 683,
690 (D.C. Cir. 2001) (Rules governing an
application process are procedural
under the Administrative Procedure
Act.); Inova Alexandria Hosp. v.
Shalala, 244 F.3d 342, 350 (4th Cir.
2001) (Rules for handling appeals were
procedural where they did not change
the substantive standard for reviewing
claims.).
Accordingly, prior notice and
opportunity for public comment for the
changes in this rulemaking are not
required pursuant to 5 U.S.C. 553(b) or
(c), or any other law. See Perez, 135 S.
Ct. at 1206 (Notice-and-comment
procedures are required neither when
an agency ‘‘issue[s] an initial
interpretive rule’’ nor ‘‘when it amends
or repeals that interpretive rule.’’);
Cooper Techs. Co. v. Dudas, 536 F.3d
1330, 1336–37 (Fed. Cir. 2008) (stating
that 5 U.S.C. 553, and thus 35 U.S.C.
2(b)(2)(B), does not require notice and
comment rulemaking for ‘‘interpretative
rules, general statements of policy, or
rules of agency organization, procedure,
or practice’’ (quoting 5 U.S.C.
553(b)(A))).
In addition, good cause exists under
5 U.S.C. 553(b)(B) and (d)(3) to issue
this rule without prior notice and
opportunity for comment and the 30day delay in effectiveness, as it would
be impracticable and contrary to the
public interest. This action amends
§ 2.21(a)(1) to avoid a possible
unintended consequence (i.e., possible
loss of a filing date for some applicants
who provide an address that is later
determined not to be their domicile
address) that might result from
substituting the wording ‘‘domicile
address’’ for ‘‘postal address’’ in the July
31, 2019 final rule. Therefore, the
USPTO has determined that the better
practice is to retain the existing
requirement for an ‘‘address’’ as a filingdate requirement. The requirement for a
‘‘domicile address’’ remains a
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requirement for a complete application
in amended § 2.32(a)(2). Delay of this
correction to allow for prior notice and
opportunity for comment would result
in the implementation of a requirement
that may result in a loss of a filing date
for some applicants as well as confusion
among applicants regarding the
requirements for a filing date. In
addition, because the July 31, 2019 final
rule is not effective until December 21,
2019, no party has been negatively
impacted or affected by this rulemaking,
which is being published prior to that
effective date. Therefore, the USPTO
waives the requirement for prior notice
and opportunity for comment, and
implements this correction on the
effective date of this rule.
Corrections
In FR Doc. 2019–16259 appearing on
page 37081 in the Federal Register of
Wednesday, July 31, 2019, delayed at 84
FR 52363, October 2, 2019, the
following corrections are made:
§ 2.21
[Corrected]
1. On page 37093, in the third column,
in § 2.21, in paragraph (a)(1), ‘‘The
name, domicile address, and email
address of each applicant;’’ is corrected
to read ‘‘The name, address, and email
address of each applicant;’’
■ 2. On page 37094, in the first and
second columns, in § 2.22, paragraphs
(a)(1) through (19) are redesignated as
paragraphs (a)(2) through (20) and new
paragraph (a)(1) is added to read as
follows:
■
§ 2.22 Requirements for a TEAS Plus
application.
(a) * * *
(1) The applicant’s name and
domicile address;
*
*
*
*
*
Dated: December 9, 2019.
Andrei Iancu,
Under Secretary of Commerce for Intellectual
Property and Director of the United States
Patent and Trademark Office.
[FR Doc. 2019–26899 Filed 12–12–19; 8:45 am]
BILLING CODE 3510–16–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 17
RIN 2900–AQ01
Reimbursement of Qualifying Adoption
Expenses for Certain Veterans
Department of Veterans Affairs.
Final rule.
AGENCY:
ACTION:
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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
SUMMARY:
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Federal Register / Vol. 84, No. 240 / Friday, December 13, 2019 / Rules and Regulations
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,
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15:53 Dec 12, 2019
Jkt 250001
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 § 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
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68047
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 perchild 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% serviceconnected 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 serviceconnected 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
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68048
Federal Register / Vol. 84, No. 240 / Friday, December 13, 2019 / Rules and Regulations
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.
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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 6month 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
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15:53 Dec 12, 2019
Jkt 250001
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 https://
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 https://
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
Congressional Review Act
Fmt 4700
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:
Sfmt 9990
1. The authority citation for part 17 is
amended in the authority for §§ 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.
*
*
§ 17.390
*
*
*
[Amended]
2. Amend § 17.390 by removing
paragraph (f).
■
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).
Frm 00030
There are no Catalog of Federal
Domestic Assistance numbers and titles
affected by this document.
PART 17—MEDICAL
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.
PO 00000
Catalog of Federal Domestic Assistance
[FR Doc. 2019–26751 Filed 12–12–19; 8:45 am]
BILLING CODE 8320–01–P
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]]>Agencies
[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.
-----------------------------------------------------------------------
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
https://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
https://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
0
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]
0
2. Amend Sec. 17.390 by removing paragraph (f).
[FR Doc. 2019-26751 Filed 12-12-19; 8:45 am]
BILLING CODE 8320-01-P
