# 2012-150 Pay and Benefits, In Vitro Fertilization

Case Summary

F&R Date: 2012–12–20

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. She also indicated that the Royal Canadian Mounted Police (RCMP) provided the same coverage as of 2010. The grievor argued that the Canadian Forces (CF) Spectrum of Care (SoC) is too restrictive and does not align with provincial health care offerings or the RCMP coverage. She requested full payment of up to three cycles of IVF and ICSI treatments, including an immediate reimbursement of approximately $11,500 for treatment already received.

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 for which the grievor does not meet the criteria, and ICSI for male members with sperm disorders.

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 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 and that of the RCMP.

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 and the RCMP 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 or their RCMP counterparts. 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 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.

CDS Decision Summary

CDS Decision Date: 2013–12–19

The CDS did not agree with the Committee's findings and recommendation. The CDS held that if he was to adopt the Committee's rationale for expansion of coverage, whenever any province included a health benefit in its insurance plan, the CAF would be obligated to follow suit. It would diminish or eliminate discretion on the part of the CAF, and by offering the most extensive health benefits available in Canada, such an approach would create an elite level of health care that would contravene comparability to the average Canadian and, quite likely, be unaffordable. The CDS was of the view the CAF is not bound by provincial legislation or regulations on the matter nor is it bound by decisions taken by other federal departments. The CDS found that funding for IVF coverage, no matter the cause, is not comparable to what most Canadians receive. Taking into consideration the five principles applicable to the CF SoC Review Committee and viewed against what is offered to federal employees (covered under the Public Service Health Care Plan (PSHCP)) and to a majority of Canadians (covered under provincial/territorial health care plan), the CDS believed the current CAF policy regarding IVF is reasonable and consistent with the Canada First Defense Strategy and the national policy stated in the Canada Health Act. Therefore, it was reasonable for the CF SoC to include limited IVF coverage in the mid-1990s as similar coverage was provided by the PSHCP. With regard to the Reserve Force members, based on their class of service, the CDS acknowledged that they may receive differing levels of funded or insured health services as compared to Regular Force members and benefits. However, he did not believe that these discrepancies were unfair. Rather, he found that they were a matter of jurisdiction and a reflection of the Constitution Act and a federated government: if the CAF provided coverage based on residency in a province or territory and adopted multiple provincial or territorial standards, the CAF would be providing unequal coverage to its eligible members.