B-124046, SEP 11, 1972, 52 COMP GEN 125

B-124046, SEP 11, 1972, 52 COMP GEN 125

MEDICAL TREATMENT - FEDERAL MEDICAL RECOVERY ACT - PAYMENT FOR SERVICES DISPOSITION THE COLLECTIONS MADE UNDER THE SO-CALLED FEDERAL MEDICAL CARE RECOVERY ACT (FMCRA), 42 U.S.C. 2651-2652, FOR HOSPITAL, MEDICAL, SURGICAL, OR DENTAL CARE AND TREATMENT TO PERSONS WHO ARE INJURED OR SUFFER A DISEASE UNDER CIRCUMSTANCES CREATING A TORT LIABILITY UPON A THIRD PERSON ARE FOR DEPOSIT IN THE TREASURY AS MISCELLANEOUS RECEIPTS PURSUANT TO SECTION 3617, REVISED STATUTES, 31 U.S.C. 484, AS THE DISPOSITION OF MONIES COLLECTED FROM THIRD PARTY TORTFEASORS IS NOT SPECIFIED IN FMCRA, AND THE PRACTICE OF DEPOSITING SUCH COLLECTIONS TO RELATED APPROPRIATION ACCOUNTS RELYING ON THE AUTHORITY IN 10 U.S.C. 2205 SHOULD BE DISCONTINUED SINCE THERE IS NOT INVOLVED THE SALE OF PAYMENT FOR SERVICES THAT IS CONTEMPLATED BY 10 U.S.C. 2205. GENERAL ACCOUNTING OFFICE - RECOMMENDATIONS - IMPLEMENTATION SINCE THE RECOMMENDATION THAT THE COLLECTIONS MADE FROM THIRD PARTY TORT- FEASORS PURSUANT TO THE SO-CALLED FEDERAL MEDICAL CARE RECOVERY ACT, 42 U.S.C. 2651-2652, FOR THE CARE AND TREATMENT OF PERSONS WHO ARE INJURED OR SUFFER A DISEASE UNDER CIRCUMSTANCES CREATING A TORT LIABILITY UPON A THIRD PERSON SHOULD BE DEPOSITED IN THE TREASURY AS MISCELLANEOUS RECEIPTS (31 U.S.C. 484) RATHER THAN TO A RELATED APPROPRIATION ACCOUNT REQUIRES CORRECTIVE ACTION, WRITTEN STATEMENTS OF THE ACTION TAKEN ARE REQUIRED BY SECTION 236 OF THE LEGISLATIVE REORGANIZATION ACT TO BE SUBMITTED TO THE COMMITTEES ON GOVERNMENT OPERATIONS OF BOTH HOUSES WITHIN 60 DAYS AND TO THE COMMITTEES ON APPROPRIATIONS IN CONNECTION WITH THE FIRST REQUEST FOR APPROPRIATIONS THAT IS MADE MORE THAN 60 DAYS AFTER THE DATE OF THE RECOMMENDATION.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 11, 1972

BY LETTER OF AUGUST 3, 1971, ADDRESSED TO YOU, ATTENTION: ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), WE TRANSMITTED FOR YOUR REVIEW AND COMMENT A DRAFT REPORT CONCERNING PROCEDURES PERTAINING TO COLLECTIONS UNDER THE SO-CALLED FEDERAL MEDICAL CARE RECOVERY ACT (FMCRA), PUBLIC LAW 87-693, APPROVED SEPTEMBER 25, 1962, 76 STAT. 593, 42 U.S.C. 2651 2652.

THE ABOVE-MENTIONED ACT PROVIDES THAT IN ANY CASE IN WHICH THE UNITED STATES IS AUTHORIZED OR REQUIRED BY LAW TO FURNISH HOSPITAL, MEDICAL, SURGICAL, OR DENTAL CARE AND TREATMENT TO A PERSON WHO IS INJURED OR SUFFERS A DISEASE UNDER CIRCUMSTANCES CREATING A TORT LIABILITY UPON SOME THIRD PERSON TO PAY DAMAGES THEREFORE, "THE UNITED STATES SHALL HAVE A RIGHT TO RECOVER FROM SAID THIRD PERSON THE REASONABLE VALUE OF THE CARE AND TREATMENT SO FURNISHED OR TO BE FURNISHED" AND "SHALL, AS TO THIS RIGHT BE SUBROGATED TO ANY RIGHT OR CLAIM THAT THE INJURED OR DISEASED PERSON, HIS GUARDIAN, PERSONAL REPRESENTATIVE, ESTATE, DEPENDENTS, OR SURVIVORS HAS AGAINST SUCH THIRD PERSON" TO THE EXTENT OF THE REASONABLE VALUE OF THE CARE AND TREATMENT SO FURNISHED OR TO BE FURNISHED. THE STATUTE FURTHER PROVIDES THAT THE GOVERNMENT MAY ALSO REQUIRE THE INJURED OR DISEASED PERSON "TO ASSIGN HIS CLAIM OR CAUSE OF ACTION AGAINST THE THIRD PERSON TO THE EXTENT OF THAT RIGHT OR CLAIM." TO ENFORCE SUCH RIGHT THE STATUTE AUTHORIZES THE UNITED STATES TO "INTERVENE OR JOIN IN ANY ACTION OR PROCEEDING BROUGHT BY THE INJURED OR DISEASED PERSON" AGAINST THE THIRD PERSON WHO IS LIABLE FOR THE INJURY OR DISEASE OR "IF SUCH ACTION OR PROCEEDING IS NOT COMMENCED" BY HIM WITHIN THE TIME THERE PRESCRIBED, "INSTITUTE AND PROSECUTE LEGAL PROCEEDINGS AGAINST THE THIRD PERSON WHO IS LIABLE FOR THE INJURY OR DISEASE."

THIS ACT DOES NOT SPECIFY THE DISPOSITION TO BE MADE OF MONIES COLLECTED FROM THIRD PARTY TORTFEASORS AND, CONSEQUENTLY, UNLESS A DIFFERENT DISPOSITION IS OTHERWISE PROVIDED, SUCH COLLECTIONS ARE FOR DEPOSIT IN THE TREASURY AS MISCELLANEOUS RECEIPTS AS PROVIDED BY SECTION 3617, REVISED STATUTES, 31 U.S.C. 484.

AS NOTED IN OUR DRAFT REPORT, THE DEPARTMENT OF THE ARMY HAS BEEN DEPOSITING SUCH COLLECTIONS AS MISCELLANEOUS RECEIPTS. THE DEPARTMENTS OF THE NAVY AND THE AIR FORCE, HOWEVER, RELYING ON THE PROVISIONS OF 10 U.S.C. 2205, HAVE CREDITED SUCH COLLECTIONS TO THEIR RELATED APPROPRIATION ACCOUNTS.

WE DID NOT AGREE IN OUR REPORT THAT 10 U.S.C. 2205 AUTHORIZED THE COLLECTIONS IN QUESTION TO BE CREDITED TO THE RELATED APPROPRIATIONS AND, ACCORDINGLY, WE RECOMMENDED THAT THE DEPARTMENT OF THE NAVY AND THE AIR FORCE FOLLOW THE PRACTICE OF THE DEPARTMENT OF THE ARMY AND DEPOSIT SUCH COLLECTIONS INTO THE TREASURY AS MISCELLANEOUS RECEIPTS AS REQUIRED BY 31 U.S.C. 484.

BY LETTER OF DECEMBER 2, 1971, THE ASSISTANT GENERAL COUNSEL (FISCAL MATTERS) FORWARDED THE COMMENTS OF THE DEPARTMENT OF DEFENSE AND, WITH REFERENCE TO THAT RECOMMENDATION, IT WAS STATED THAT IN THE ABSENCE OF A DEFINITIVE DECISION OF THE COMPTROLLER GENERAL AND THE DEPARTMENT OF THE ARMY WOULD HENCEFORTH FOLLOW THE PRACTICE OF THE DEPARTMENTS OF THE NAVY AND AIR FORCE AND CREDIT FMCRA COLLECTIONS TO ITS RELATED APPROPRIATION ACCOUNT.

10 U.S.C. 2205 READS AS FOLLOWS:

REIMBURSEMENTS MADE TO APPROPRIATIONS TO THE DEPARTMENT OF DEFENSE OR A DEPARTMENT OR AGENCY THEREOF UNDER SECTION 686 OF TITLE 31, OR OTHER AMOUNTS PAID BY OR ON BEHALF OF A DEPARTMENT OR AGENCY OF THE DEPARTMENT OF DEFENSE TO ANOTHER DEPARTMENT OR AGENCY OF THE DEPARTMENT OF DEFENSE, OR BY OR ON BEHALF OF PERSONNEL OF ANY DEPARTMENT OR ORGANIZATION, FOR SERVICES RENDERED OR SUPPLIES FURNISHED, MAY BE CREDITED TO AUTHORIZED ACCOUNTS. FUNDS SO CREDITED ARE AVAILABLE FOR OBLIGATION FOR THE SAME PERIOD AS THE FUNDS IN THE ACCOUNT SO CREDITED. SUCH AN ACCOUNT SHALL BE ACCOUNTED FOR AS ONE FUND ON THE BOOKS OF THE DEPARTMENT OF THE TREASURY.

THE LANGUAGE OF 10 U.S.C. 2205 ORIGINALLY WAS ENACTED AS SECTION 408 OF THE NATIONAL SECURITY ACT OF 1947, AS ADDED BY SECTION 11 OF PUBLIC LAW 81 -216, APPROVED AUGUST 10, 1949, 63 STAT. 590. THE LEGISLATIVE HISTORY THEREOF DOES NOT DISCLOSE ANY INDICATION OF THE PARTICULAR PURPOSE OF THE ITALICIZED LANGUAGE, DISCUSSION IN THE HEARINGS AND REPORTS BEING PRIMARILY LIMITED TO THE EFFECT OF THAT SECTION ON TRANSACTION UNDER SECTION 601 OF THE ECONOMY ACT, 31 U.S.C. 686. IT MAY BE NOTED, HOWEVER, THAT SECTION 405 AS ALSO ADDED TO THE NATIONAL SECURITY ACT OF 1947 BY PUBLIC LAW 81-216, 10 U.S.C. 2208, AUTHORIZES THE ESTABLISHMENT OF WORKING -CAPITAL FUNDS TO PROVIDE SERVICES AND SELL SUPPLIES TO THE DEPARTMENTS AND AGENCIES OF THE DEPARTMENT OF DEFENSE AND THEIR PERSONNEL AND PROVIDES FOR REIMBURSEMENT ON ACCOUNT OF SUPPLIES FURNISHED OR SERVICES RENDERED. IN VIEW THEREOF, IT APPEARS THAT ITALICIZED LANGUAGE IN 10 U.S.C. 2205 ABOVE WAS INSERTED AS A REFERENCE TO THE WORKING-CAPITAL FUND PROVISIONS.

IN ANY EVENT AMOUNTS COLLECTED UNDER FMCRA OBVIOUSLY ARE NOT PAID BY THE PERSON FOR WHOM HOSPITAL SERVICE IS FURNISHED AND, SINCE SUCH PERSON IS ENTITLED THERETO BY LAW AND UNDER NO OBLIGATION TO PAY THEREFOR, WE THINK IT CLEAR THAT AN AMOUNT COLLECTED UNDER FMCRA CANNOT BE SAID TO REPRESENT AN AMOUNT PAID ON BEHALF OF SUCH PERSON. SUCH AMOUNTS ARE IN THE NATURE OF RECOVERIES FOR DAMAGES AND, WHILE THE AMOUNT IN ANY GIVEN CASE IS MEASURED BY THE COST OF THE SERVICES FURNISHED TO THE VICTIM, WE THINK IT CLEAR THAT THERE IS NOT INVOLVED A SALE OF SERVICES TO ANY PERSONNEL OF THE MILITARY DEPARTMENTS NOR ANY PAYMENT MADE THEREFOR ON THEIR BEHALF AS CONTEMPLATED BY 10 U.S.C. 2205.

ACCORDINGLY, AMOUNTS COLLECTED PURSUANT TO FMCRA SHOULD BE DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

AS THIS DECISION CONTAINS AN INSTRUCTION THAT CORRECTIVE ACTION BE TAKEN, YOUR ATTENTION IS DIRECTED TO SECTION 236 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, 84 STAT. 1140, 1171(31 U.S.C. 1176), WHICH REQUIRES THAT YOU SUBMIT WRITTEN STATEMENTS TO CERTAIN COMMITTEES OF THE CONGRESS AS TO THE ACTION TAKEN WITH RESPECT THERETO. THE STATEMENTS ARE TO BE SENT TO THE COMMITTEES ON GOVERNMENT OPERATIONS OF BOTH HOUSES NOT LATER THAN 60 DAYS AFTER THE DATE OF THIS DECISION AND TO THE COMMITTEES ON APPROPRIATIONS IN CONNECTION WITH THE FIRST REQUEST FOR APPROPRIATIONS MADE BY YOUR AGENCY MORE THAN 60 DAYS AFTER THE DATE OF THIS DECISION.