Reimbursement of Qualifying Adoption Expenses for Certain Veterans, 68046-68048 [2019-26751]

Download as PDF 68046 Federal Register / Vol. 84, No. 240 / Friday, December 13, 2019 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES 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 VerDate Sep<11>2014 15:53 Dec 12, 2019 Jkt 250001 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: PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 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: E:\FR\FM\13DER1.SGM 13DER1 jbell on DSKJLSW7X2PROD with RULES 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, VerDate Sep<11>2014 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 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 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 E:\FR\FM\13DER1.SGM 13DER1 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. jbell on DSKJLSW7X2PROD with RULES 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 VerDate Sep<11>2014 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 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 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 E:\FR\FM\13DER1.SGM 13DER1

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]


=======================================================================
-----------------------------------------------------------------------

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 
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

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