# 2012-098 - Expansion of the Spectrum of Care for Infertility Treatments, In Vitro Fertilization

Expansion of the Spectrum of Care for Infertility Treatments, In Vitro Fertilization

Case Summary

F&R Date: 2012–10–22

The grievor submitted a grievance after being refused reimbursement of costs relating to in vitro fertilization (IVF) treatments for herself and intracytoplasmic sperm injection (ICSI) treatments for her service spouse. The grievor pointed out that, in 2010, the Province of Quebec expanded provincial health care coverage to include the payment of infertility treatments to a maximum of three cycles, no matter what the cause of the infertility. The grievor argued that the Canadian Forces (CF) Spectrum of Care (SoC) is too restrictive and does not align with provincial health care offerings. She requested full payment of the IVF and ICSI treatments she and her husband underwent in 2011 at a cost of $10,431.92.

The initial authority (IA) denied the grievance indicating that the issue of infertility treatments was discussed at great length at the April 2011 SoC Review Committee (RC) meeting and it was decided there would be no change to the current coverage. The IA noted that the SoC only covers IVF for those female members with proven bilateral fallopian tube obstruction (not the grievor's condition) and ICSI for male members with sperm disorders not due to previous elective vasectomy (the husband's case).

As a preliminary issue, the Board pointed out that in accordance with Queen's Regulations and Orders for the Canadian Forces (QR&O), a grievance may not be submitted jointly with any other member. Consequently, the Board limited its review to the grievor's entitlement to IVF.

The Board reviewed the current CF SoC and found that since the grievor's condition is not that which is identified or funded by the SoC guidelines, the grievor was not eligible for the reimbursement of her two IVF treatments. However, since the basis of the grievance was the grievor's entitlement to medical care, the Board was of the view that the analysis of her grievance could not escape the review of the April 2011 SoC RC decision not to expand coverage for infertility treatments.

The Board first recognized that in 1997, IVF was added to the SoC for CF members with bilateral tube blockage for a maximum of three cycles. The Board also noted that the stated intent of the SoC is to provide CF members with a comprehensive health care system "comparable" to that guaranteed to other Canadians under the Canada Health Act. In order to determine whether the SoC RC decision not to expand coverage was reasonable, the Board decided to examine whether, in fact, CF members are receiving IVF treatments comparable overall to that received by Canadians under provincial health care plans.

Concerning IVF treatments from 1997 to August 2010, the Board was satisfied that CF members were not disentitled to health services that would otherwise have been available to them, merely because they had joined the CF. In fact, during this period, the Board noted that IVF coverage was not only comparable, it was identical to that of the Province of Ontario. This fact was also corroborated by the June 2008 SoC RC decision when determining whether ICSI would be included for male factor sub/infertility, or whether it would be prudent to de-list IVF for qualifying female members.

However, the Board could not reach the same conclusion relating to IVF coverage since August 2010. On the one hand, the Province of Quebec funds three cycles of IVF and/or ICSI for all couples with infertility problems regardless of cause. On the other hand, the SoC RC refused to change, amend or expand, even in a limited fashion, the IVF coverage that has been in existence since 1997. The Board could not therefore conclude that CF members are currently receiving IVF treatments comparable overall to that received by Canadians under provincial health care plans. In the Board's opinion, on the issue of IVF, the SoC RC decision failed to meet the CF written and public commitment of comparability; consequently, the Board found that this decision was unreasonable in the circumstances.

The Board also pointed out that QR&O subsection 34.07(7) - Entitlement to Medical Care, states that a member of the Reserve Force on Class "A" or "B" service whose need for medical care is not attributable to the performance of his duty and is not a result of his misconduct or imprudence is entitled, where the requirement arises, "to receive at public expense medical care in whole or in part which is not provided for under his provincial health care plan...". Consequently, a Class "A" or "B" reservist in need of medical care not related to CF duty will first benefit from provincial health plan coverage, and second from CF medical care. For all intent and purposes, in the Board's opinion, this means that since August 2010, a reservist working in Quebec, dealing with an infertility issue, benefits from the Quebec provincial health care plan and could receive up to three cycles of IVF or ICSI funded treatments regardless of cause; a claim no other CF member has. The Board found this issue of concern as it is divisive in nature and expressed the view that by expanding the SoC to a comparable level or similar status, the CF could resolve this issue and make the policy all inclusive.

The Board recommended that the Chief of the Defence Staff (CDS) grant redress.

The Board recommended that the CDS direct that the grievor be reimbursed for the costs she incurred after 18 April 2011, associated with IVF up to three treatments/cycles.

From a systemic perspective, the Board recommended that the CDS direct that the SoC coverage for IVF and/or ICSI be expanded to include three cycles of treatment regardless of the infertility cause, effective 18 April 2011, the date the last SoC review took place and that the SoC be amended to reflect this new coverage.

CDS Decision Summary

CDS Decision Date: 2013–12–19

The CDS did not agree with the Board's recommendation that redress be granted and that the grievor be reimbursed for the costs she incurred after 18 April 2011, associated with IVF up to three treatments/cycles. The CDS adopted a different interpretation of the SoC general section which stated that the intent of the SoC is therefore to provide CF members with a comprehensive health care system “comparable” to that guaranteed to other Canadians under the Canada Health Act. The CDS was of the view that in order to determine whether IVF for CAF members is comparable to what received other Canadians, the comparable is not which group receive the best medical coverage, but which one is available for a majority of Canadians. Finally, the CDS acknowledged that Reserve Force members, based on their class of service, may receive differing levels of funded or insured health services and benefits as compared to Regular Force members, and he did not believe these discrepancies were unfair.

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