A-3641, NOVEMBER 26, 1924, 4 COMP. GEN. 480

A-3641, NOVEMBER 26, 1924, 4 COMP. GEN. 480

EMERGENCY MEDICAL AND HOSPITAL TREATMENT - VETERANS' BUREAU THE DIRECTOR OF THE VETERANS' BUREAU HAD AUTHORITY UNDER THE WAR RISK INSURANCE LAWS PREVIOUSLY IN FORCE AND NOW HAS AUTHORITY UNDER SECTION 5 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 608, TO PROMULGATE REGULATIONS LIMITING THE MAXIMUM AMOUNT THAT WILL BE PAID FOR MEDICAL OR HOSPITAL TREATMENT FURNISHED BENEFICIARIES OF THE BUREAU BY PRIVATE PHYSICIANS OR HOSPITALS, BOTH PREVIOUSLY AUTHORIZED AND EMERGENCY TREATMENT, AND SUCH REGULATIONS ARE OF THE CLASS USUALLY TERMED STATUTORY WHICH MAY NOT BE WAIVED OR EXCEPTION MADE THERETO IN INDIVIDUAL CASES. COMP. GEN. 76, MODIFIED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, NOVEMBER 26, 1924:

I HAVE YOUR LETTER OF OCTOBER 1, 1924, REQUESTING RECONSIDERATION OF DECISION OF JULY 19, 1924, 4 COMP. GEN. 76, IN WHICH PAYMENT WAS AUTHORIZED OF A VOUCHER IN FAVOR OF ALBERT STEIN, A BENEFICIARY PATIENT OF THE VETERANS' BUREAU, FOR REIMBURSEMENT OF AMOUNTS PAID BY HIM FOR MEDICAL TREATMENT PROCURED IN AN EMERGENCY.

THE DECISION HELD THAT SINCE THE DIRECTOR OF THE VETERANS' BUREAU HAD APPROVED PAYMENT OF THE VOUCHER AND THE CHARGES APPEARED TO BE REASONABLE AND OTHERWISE PROPER, PAYMENT THEREOF WAS AUTHORIZED. REGULATIONS SPECIFICALLY REFERRED TO IN THE SUBMISSION IN THAT CASE, KNOWN AS GENERAL ORDERS 162 AND 162-A OF THE VETERANS' BUREAU GIVING AMOUNTS OF VARIOUS FEES THAT WOULD BE APPROVED FOR THE ITEMS OF EXPENSE NAMED FOR PAYMENT BY THE BUREAU TO PRIVATE PHYSICIANS FOR PREVIOUSLY AUTHORIZED SERVICES RENDERED TO BENEFICIARIES OF THE BUREAU, WERE NOT CONSIDERED APPLICABLE TO THE CLAIM IN QUESTION, WHICH WAS FOR REIMBURSEMENT OF THE AMOUNTS PAID BY THE BENEFICIARY HIMSELF FOR EMERGENCY TREATMENT. IT WAS NOT BROUGHT TO THE ATTENTION OF THIS OFFICE AT THE TIME THE STEIN CASE WAS UNDER CONSIDERATION THAT THE VETERANS' BUREAU ALSO HAS REGULATIONS, GENERAL ORDERS NO. 86, NO. 86A, AND NO. 86B, DEALING WITH THE ADJUDICATION OF CLAIMS FOR REIMBURSEMENT OF MEDICAL EXPENSES INCURRED BY BENEFICIARIES IN EMERGENCIES WITHOUT PREVIOUS AUTHORIZATION BY THE BUREAU.

THE QUESTION NOW RAISED IS WHETHER THE GENERAL PRINCIPLE IN DECISION OF JULY 19, 1924, SHOULD BE EXTENDED TO OTHER CLAIMS FOR REIMBURSEMENT OF EXPENSES INCURRED IN EMERGENCIES BY BENEFICIARIES WITHOUT REGARD TO THE REGULATIONS OF THE VETERANS' BUREAU APPLICABLE THERETO. PARAGRAPH 5 OF THE GENERAL ORDER NO. 86 PROVIDES:

IN THE ADJUDICATION OF REIMBURSEMENT CLAIMS FOR MEDICAL EXPENSES, THE EXAMINER WILL BE GUIDED BY THE "TABLE OF FEES AUTHORIZED AS A GUIDE FOR SURGICAL AND OTHER PROFESSIONAL SERVICES," APPROVED JUNE 24, 1921. * * *

PARAGRAPH 5 OF GENERAL ORDER NO. 86A, DATED JULY 28, 1922, PROVIDES, IN PART, AS FOLLOWS:

THE AMOUNTS ALLOWED FOR UNAUTHORIZED MEDICAL, SURGICAL, OR HOSPITAL TREATMENT WILL NOT BE IN EXCESS OF THE AUTHORIZED FEE TABLE OF THE BUREAU FOR SIMILAR AUTHORIZED SERVICES.

PARAGRAPH 2 OF THE GENERAL ORDER NO. 162, DATED APRIL 7, 1923, PROVIDES AS FOLLOWS:

TREATMENT FOR MINOR DISABILITIES DUE TO INTERCURRENT DISEASE OR INJURY WHICH DO NOT INTERFERE WITH TRAINING SHALL NOT BE GIVEN AT THE EXPENSE OF THE BUREAU. THE SCHEDULE OF FEES AS AUTHORIZED BY THE BUREAU AND APPROVED BY THE ASSISTANT SECRETARY OF THE TREASURY, DATED JUNE 9, 1921, ESTABLISHES THE MAXIMUM AMOUNTS TO BE PAID FOR THE VARIOUS SERVICES ENUMERATED. THE MAXIMUM AMOUNT OF FEES SET FORTH IN THE ABOVE SCHEDULE SHALL BE PAID ONLY UNDER SUCH CIRCUMSTANCES AS THE NATURE OF THE SERVICES RENDERED JUSTIFY, AND NOT IN ALL CASES.

THIS WAS AMENDED BY GENERAL ORDER NO. 162A, SEPTEMBER 14, 1923, AS FOLLOWS:

TREATMENT FOR MINOR DISABILITIES DUE TO INTERCURRENT DISEASES OR INJURY WHICH DO NOT INTERFERE WITH TRAINING SHALL NOT BE GIVEN AT THE EXPENSE OF THE BUREAU. THE FEES HEREINAFTER STIPULATED ESTABLISH THE MAXIMUM AMOUNTS TO BE PAID FOR THE VARIOUS SERVICES ENUMERATED. THE MAXIMUM AMOUNTS OF FEES SET FORTH IN THE SCHEDULE SHALL BE PAID ONLY UNDER SUCH CIRCUMSTANCES AS THE NATURE OF THE SERVICES JUSTIFY, AND NOT IN ALL CASES.

THESE REGULATIONS EXPRESSLY LIMIT THE RATES FOR EMERGENCY TREATMENT TO THE MAXIMUM RATES FIXED BY THE SCHEDULE FOR SIMILAR TREATMENT AUTHORIZED IN ADVANCE. INASMUCH AS THE RATES TO BE PAID FOR TREATMENT AUTHORIZED IN ADVANCE COULD NOT EXCEED THE MAXIMUM RATES FIXED BY THE SCHEDULE IN FORCE AT THE TIME SERVICE WAS RENDERED, IT MUST BE HELD THAT PAYMENT FOR EMERGENCY TREATMENT PROCURED WITHOUT PRIOR AUTHORIZATION IS LIKEWISE LIMITED.

SECTION 5 OF THE WORLD WAR VETERANS' ACT, 1924, JUNE 7, 1924, 43 STAT. 608, PROVIDES AS OLLOWS:

THE DIRECTOR, SUBJECT TO THE GENERAL DIRECTION OF THE PRESIDENT, SHALL ADMINISTER, EXECUTE, AND ENFORCE THE PROVISIONS OF THIS ACT, AND FOR THAT PURPOSE SHALL HAVE FULL POWER AND AUTHORITY TO MAKE RULES AND REGULATIONS, NOT INCONSISTENT WITH THE PROVISIONS OF THIS ACT, WHICH ARE NECESSARY OR APPROPRIATE TO CARRY OUT ITS PURPOSES, AND SHALL DECIDE ALL QUESTIONS ARISING UNDER THIS ACT AND ALL DECISIONS OF QUESTIONS OF FACT AFFECTING ANY CLAIMANT TO THE BENEFITS OF TITLES II, III, OR IV OF THIS ACT, SHALL BE CONCLUSIVE EXCEPT AS OTHERWISE PROVIDED HEREIN. ALL OFFICERS AND EMPLOYEES OF THE BUREAU SHALL PERFORM SUCH DUTIES AS MAY BE ASSIGNED THEM BY THE DIRECTOR. ALL OFFICIAL ACTS PERFORMED BY SUCH OFFICERS OR EMPLOYEES SPECIALLY DESIGNATED THEREFOR BY THE DIRECTOR SHALL HAVE THE SAME FORCE AND EFFECT AS THOUGH PERFORMED BY THE DIRECTOR IN PERSON. WHEREVER UNDER ANY PROVISION OR PROVISIONS OF THE ACT REGULATIONS ARE DIRECTED OR AUTHORIZED TO BE MADE, SUCH REGULATIONS, UNLESS THE CONTEXT OTHERWISE REQUIRES, SHALL OR MAY BE MADE BY THE DIRECTOR. THE DIRECTOR SHALL ADOPT REASONABLE AND PROPER RULES TO GOVERN THE PROCEDURE OF THE DIVISIONS AND TO REGULATE AND PROVIDE FOR THE NATURE AND EXTENT OF THE PROOFS AND EVIDENCE AND THE METHOD OF TAKING AND FURNISHING THE SAME IN ORDER TO ESTABLISH THE RIGHT TO BENEFITS OF COMPENSATION, INSURANCE,VOCATIONAL TRAINING OR MAINTENANCE AND SUPPORT ALLOWANCE PROVIDED FOR IN THIS ACT, THE FORMS OF APPLICATION OF THOSE CLAIMING TO BE ENTITLED TO SUCH BENEFITS, THE METHODS OF MAKING INVESTIGATIONS AND MEDICAL EXAMINATIONS, AND THE MANNER AND FORM OF ADJUDICATIONS AND AWARDS.

SEVERAL OTHER PROVISIONS OF THE ACT AUTHORIZED THE DIRECTOR OR THE BUREAU TO MAKE REGULATIONS TO CARRY OUT ITS PROVISIONS. AMONG THEM IS SECTION 301, 43 STAT. 624, WHICH AUTHORIZES REGULATIONS TO PROVIDE FOR VARIOUS KINDS OF LIFE INSURANCE AND FOR THE METHOD OF MAKING PAYMENTS OF PREMIUMS, ETC. THE AUTHORITY OF THE DIRECTOR TO PRESCRIBE BY REGULATION A SCHEDULE OF MAXIMUM RATES FOR REIMBURSING PRIVATE PHYSICIANS AND HOSPITALS FOR MEDICAL TREATMENT FURNISHED BENEFICIARIES OF THE BUREAU HAS NOT BEEN PROVIDED FOR BY SPECIFIC PROVISIONS SEPARATE AND APART FROM THE GENERAL PROVISION FOR MAKING REGULATIONS ABOVE QUOTED, BUT SUCH REGULATIONS ARE AUTHORIZED UNDER THE PROVISIONS OF SECTION 5 GRANTING THE DIRECTOR "FULL POWER AND AUTHORITY TO MAKE RULES AND REGULATIONS, NOT INCONSISTENT WITH THE PROVISIONS OF THE ACT, WHICH ARE NECESSARY OR APPROPRIATE TO CARRY OUT ITS PURPOSES.' ONE OF THE PURPOSES IS TO PROVIDE FOR MEDICAL AND HOSPITAL TREATMENT TO BENEFICIARIES OF THE ACT. SECTION 10 PROVIDES FOR BOTH GOVERNMENTAL MEDICAL AND HOSPITAL TREATMENT AND FOR SUCH TREATMENT PROCURED THROUGH PRIVATE SOURCES WHEN GOVERNMENTAL FACILITIES ARE NOT AVAILABLE. SECTION 202 (9), 43 STAT. 620, PROVIDES AS FOLLOWS:

* * * PROVIDED, THAT WHERE A BENEFICIARY OF THE BUREAU SUFFERS OR HAS SUFFERED AN INJURY OR CONTRACTED A DISEASE IN SERVICE ENTITLING HIM TO THE BENEFITS OF THIS SUBDIVISION, AND AN EMERGENCY DEVELOPS OR HAS DEVELOPED REQUIRING IMMEDIATE TREATMENT OR HOSPITALIZATION ON ACCOUNT OF SUCH INJURY OR DISEASE, AND NO BUREAU FACILITIES ARE OR WERE THEN FEASIBLY AVAILABLE AND IN THE JUDGMENT OF THE DIRECTOR DELAY WOULD BE OR WOULD HAVE BEEN HAZARDOUS, THE DIRECTOR IS AUTHORIZED TO REIMBURSE SUCH BENEFICIARY THE REASONABLE VALUE OF SUCH SERVICE RECEIVED FROM SOURCES OTHER THAN THE BUREAU.

REGULATIONS WHICH LIMIT THE AMOUNT OF GOVERNMENT FUNDS APPROPRIATED UNDER THE VETERANS' BUREAU THAT WILL BE EXPENDED IN REIMBURSEMENT OF A PARTICULAR KIND OR CHARACTER OF MEDICAL AND HOSPITAL TREATMENT GIVEN BENEFICIARIES OF THE BUREAU BY PRIVATE PHYSICIANS OR HOSPITALS ARE REGULATIONS ,NECESSARY OR APPROPRIATE TO CARRY OUT" THE PURPOSES OF THE WORLD WAR VETERANS' ACT AND WAR RISK INSURANCE LAWS PREVIOUSLY IN FORCE. IN THE CASE OF CASSARELLO V. UNITED STATES, 271 FED.REP. 488, INVOLVING REGULATIONS GOVERNING WAR RISK INSURANCE, THE COURT SAID, AFTER QUOTING THE GENERAL AUTHORITY OF THE DIRECTOR TO MAKE REGULATIONS TO CARRY OUT THE PURPOSES OF THE WAR RISK INSURANCE ACT, WHICH HAS BEEN QUOTED ABOVE AS REENACTED IN THE WORLD WAR VETERANS' ACT, AS FOLLOWS:

FURTHERMORE, RULES AND REGULATIONS PRESCRIBED BY A DEPARTMENT OF THE GOVERNMENT IN PURSUANCE OF A STATUTORY AUTHORITY, HAVE THE FORCE OF LAW.

THE SAME HOLDING WAS MADE IN THE CASES OF CLAFFY V. FORBES (DIRECTOR OF THE BUREAU OF WAR RISK INSURANCE), 280 FED.REP. 233, AND COVEY V. UNITED STATES, 263 FED.REP. 768, 775. SEE ALSO GENERALLY UNITED STATES V. GRIMAUD, 220 U.S. 506, AND UNITED STATES V. BIRDSALL, 233 U.S. 231. THE REGULATIONS THEREIN CONSIDERED PROMULGATED BY THE DIRECTOR GOVERNING WAR RISK INSURANCE WHICH CONSTITUTES ONE PURPOSE OF THE CONTROLLING STATUTES, HAVE THE FORCE AND EFFECT OF LAW, REGULATIONS GOVERNING ANOTHER PURPOSE OF THE CONTROLLING STATUTES, I.E., REIMBURSEMENT FOR MEDICAL AND HOSPITAL TREATMENT PROCURED THROUGH PRIVATE SOURCES UNDER CONTRACT, BOTH PREVIOUSLY AUTHORIZED AND EMERGENCY TREATMENT, ALSO HAVE THE FORCE AND EFFECT OF LAW, UNTIL REVOKED, MODIFIED, OR SUSPENDED. SUCH REGULATIONS MUST BE UNIFORM AND GENERAL IN THEIR APPLICATION AND WITHOUT RETROACTIVE EFFECT, AND ANY MODIFICATION OR SUSPENSION THEREOF MUST LIKEWISE BE OF A GENERAL OR PROSPECTIVE APPLICATION, THERE BEING NO AUTHORITY TO CHANGE THE REGULATION BY A WAIVER OR EXCEPTION THERETO IN INDIVIDUAL CASES. 21 COMP. DEC. 482; 26 ID. 99; 2 COMP. GEN. 342; DECISION OF OCTOBER 7, 1924, 4 COMP. GEN. 363.

ACCORDINGLY, IT MUST BE HELD THAT THE DIRECTOR OF THE VETERANS' BUREAU HAS AUTHORITY UNDER THE STATUTE TO PROMULGATE REGULATIONS LIMITING THE MAXIMUM AMOUNT THAT WILL BE PAID FOR ANY MEDICAL OR HOSPITAL TREATMENT FURNISHED BENEFICIARIES OF THE BUREAU, BOTH PREVIOUSLY AUTHORIZED AND EMERGENCY TREATMENT, AND THAT SUCH REGULATIONS ARE OF THE CLASS USUALLY TERMED STATUTORY WHICH MAY NOT BE WAIVED OR EXCEPTION MADE THERETO IN INDIVIDUAL CASES. DECISION OF JULY 19, 1924, 4 COMP. GEN. 76, IS MODIFIED ACCORDINGLY.