Instructions for Determining Eligibility for In Vitro Fertilization (IVF) Benefit

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 17</CFR> <SUBJECT>Instructions for Determining Eligibility for In Vitro Fertilization (IVF) Benefit</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> General policy statement. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Veterans Affairs (VA) announces that the Secretary of Veterans Affairs issued Instruction of the Secretary 01-24 on March 28, 2024, which addresses the expansion of eligibility for IVF benefits to qualified Veterans and their spouses. VA's authority to provide assisted reproductive technology (ART) benefits to veterans and their spouses, including IVF coverage, references the benefits the Department of Defense (DoD) provides to active-duty service members. The primary benefit provided by VA under this authority is IVF. DoD previously limited the IVF benefit to service members who had a Category II or III injury or illness and who together with their legal spouse could produce and carry a child who is biologically their own. This limitation effectively limited the benefit to service members who were legally married and capable of producing their own sperm and eggs (gametes) within that marriage. On March 8, 2024, DoD amended its policy to cover IVF for service members with a qualifying injury or illness who are unmarried and to allow donated gametes and embryos. VA is amending its IVF policy to adopt conforming changes. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Instructions for Determining Eligibility for IVF Benefit is effective March 28, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Sally G. Haskell, MD, MS, Acting Chief Officer, Office of Women's Health, Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, 202-461-0373. (This is not a toll-free number.) </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Instruction of the Secretary 01-24 Notice is given that the Secretary of Veterans Affairs issued Instruction of the Secretary 01-24—Instructions for Determining Eligibility for In Vitro Fertilization (IVF) Benefit on March 28, 2024. The text of Instruction of the Secretary 01-24 appears at the end of this <E T="04">Federal Register</E> document. <HD SOURCE="HD1">Background</HD> On April 3, 2012, DoD implemented its IVF policy in a memorandum titled “Policy for Assisted Reproductive Services for the Benefit of Seriously or Severely Ill/Injured (Category II or III) Active Duty Service Members,” accompanied by implementation guidance (collectively referred to throughout this document as the “DoD Policy”). The DoD Policy restricted the benefit to service members with a qualifying injury or illness who, together with their legal spouse, were able to produce and carry a child who is biologically their own. This effectively limited the benefit to service members who were legally married and capable of producing a child who is biologically related to the service member and their spouse. Since 2016, Congress has authorized VA to use medical services funds to provide ART benefits, which includes IVF coverage, to covered veterans or to provide fertility treatment services including ART to the spouses of covered veterans as provided to a member of the Armed Forces under the DoD Policy. Public Law 114-223, Division A, Title II, section 260 (Sept. 29, 2016). Congress defined a “covered veteran” to be one who has a service-connected disability that results in the inability of the veteran to procreate without the use of fertility treatment. Congress has continued to reauthorize the use of medical services funds for this purpose in subsequent appropriations laws, most recently in March 2024 in Public Law 118-42, Division A, Title II, section 234. VA implemented Congress's authorization by issuing 38 CFR 17.380 and 17.412, which clarified the definition of a covered veteran for the purposes of establishing eligibility for IVF coverage and authorized fertility treatment of the legal spouse of a covered veteran, respectively. VA also issued VHA Directive 1334 establishing the full eligibility criteria for IVF coverage, including the applicable restrictions contained in the DoD Policy. On March 8, 2024, DoD amended the DoD Policy to eliminate the requirement that to receive IVF and other ART services, an active-duty service member, along with their legal spouse, be able to produce and carry a child who is biologically their own. In the amended policy, DoD expressly stated that eligibility would not be based on marital status and that donor sperm, eggs, and embryos may be used in ART services, including IVF. VHA Directive 1334, paragraph 1.c. provides that any substantive changes made to DoD's policy will supersede conflicting terms in VHA Directive 1334. Therefore, in Instruction of the Secretary 01-24, issued on March 28, 2024, the Secretary has directed VA employees and officials to revise VHA Directive 1334 to eliminate the requirement that a covered veteran to be married and be able to produce and carry a child who is biologically their own in order to qualify for IVF coverage. These revisions allow VA to provide IVF services for an unmarried covered veteran. The revisions also allow for the use of donor sperm, eggs, or embryos, as long as the donated sperm, eggs, and embryos are provided at no cost to VA. Effectively, the revisions to VHA Directive 1334 allow VA to expand the provision of IVF services to covered veterans who are unmarried, married to a partner who does not have opposite-sex gametes, and/or incapable of producing their own sperm and/or eggs. Instruction of the Secretary 01-24 does not eliminate the statutorily imposed requirement that a veteran must have a service-connected disability that results in the inability of the veteran to procreate without the use of fertility treatment to be considered a “covered veteran.” However, the Instruction clarifies that the definition of “a service-connected disability that results in the inability of the veteran to procreate without the use of fertility treatment” provided for female veterans who have ovarian function and a patent uterine cavity in 38 CFR 17.380 will also apply to female veterans without ovarian function or a patent uterine cavity. Previously, no definition was provided for the female veteran population that did not have ovarian function or a patent uterine cavity because the exclusion of donor sperm, eggs, and embryos eliminated them from eligibility. Now, the Secretary clarifies they must meet the same definition as female veteran with ovarian function and a patent uterine cavity to be considered a “covered veteran.” <HD SOURCE="HD1">Text of Instruction of Secretary 01-24</HD> <HD SOURCE="HD1">MEMORANDUM FOR THE UNDER SECRETARY FOR HEALTH AND THE CHAIRMAN, BOARD OF VETERANS APPEALS</HD> <E T="03">Subject:</E> Instructions for Determining Eligibility for In Vitro Fertilization (IVF) Benefit. <HD SOURCE="HD2">Purpose</HD> 1. I am issuing this instruction to clarify the impact for the Department of Veterans Affairs (VA or the Department) of the amendment to the Department of Defense (DoD) Policy for Assisted Reproductive Services (ART) for the Benefit of Seriously or Severely Ill/Injured (Category II or III) Active Duty Service Members (hereinafter referred to as the “DoD Policy”) issued by DoD on March 8, 2024. The amendments to the DoD Policy are substantive and have superseded the conflicting terms of VHA Directive 1334(1), In Vitro Fertilization Counseling and Services Available to Certain Eligible Veterans and Their Spouses, dated March 21, 2021, in accordance with paragraph 1.c. of that Directive. 2. I am instructing VA employees to not restrict eligibility for IVF services based on marital status or the ability to produce opposite-sex autologous gametes, as described in more detail below. Furthermore, the use of donor gametes and donor embryos in the provision of the IVF benefit will be allowed. 3. Additionally, I am issuing this instruction to clarify the impact of the policy changes on the definition of “a service-connected disability that results in the inability of the veteran to procreate without the use of fertility treatment”, found in 38 CFR 17.380, as the current definition does not contemplate the use of donor gametes and donor embryos. 4. I am instructing Department employees to interpret the term “a service-connected disability that results in the inability of the veteran to procreate without the use of fertility treatment” as defined for a female veteran with ovarian function and a patent uterine cavity in 38 CFR 17.380 to also apply to a female veteran without ovarian function or a patent uterine cavity. <HD SOURCE="HD2">Background</HD> 5. The National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, section 1633, 122 Stat. 3, 459 (2008), authorized DoD to provide IVF benefits for certain service members. 6. On April 3, 2012, DoD implemented its IVF policy in a memorandum titled “Policy for Assisted Reproductive Services for the Benefit of Seriously or Severely Ill/Injured (Category II or III) Active Duty Service Members,” accompanied by implementation guidance (collectively referred to throughout this document as the “DoD Policy”). 7. DoD Policy clause IIIA provided: <EXTRACT> It is the intent of this policy to provide Invitro(sic) Fertilization (IVF) services only to consenting male members whose injury or illness prevents the successful delivery of their sperm to their spouse's egg and to consenting female members whose injury or illness prevents their egg from being successfully fertilized by their spouse's sperm but who maintain ovarian function and have a patent uterine cavity. </EXTRACT> 8. DoD Policy clause IIIE provided: <EXTRACT> Third-party donation and surrogacy ar ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 26k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━