B-103167, B-157790, OCT 1, 1974

B-103167,B-157790: Oct 1, 1974

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BECAUSE OF PROVISION CONTAINED IN VA'S ANNUAL APPROPRIATION ACT WHICH PROHIBITS EXPENDITURE OF VA APPROPRIATIONS FOR HOSPITALIZATION OR EXAMINATION OF NON-VA BENEFICIARIES UNLESS VA IS REIMBURSED VA MEDICAL PERSONNEL WOULD BE PROHIBITED FROM PARTICIPATING IN ASSIGNMENT PROGRAM UNDER INTERGOVERNMENTAL PERSONNEL ACT OF 1970. PARTICIPATION OF VA MEDICAL PERSONNEL IN PROPOSED PROGRAM WOULD NOT BE PROHIBITED PROVIDED VA WAS REIMBURSED IN FULL FOR COST OF SUCH PARTICIPATION OR IF VA PERSONNEL DID NOT CONDUCT EXAMINATIONS OR PROVIDE HOSPITAL CARE FOR NON-VA BENEFICIARIES. THE RESTRICTIVE LANGUAGE IS CONTAINED IN THE ACT OF OCTOBER 26. UNLESS REIMBURSEMENT OF COST IS MADE TO THE APPROPRIATION AT SUCH RATES AS MAY BE FIXED BY THE ADMINISTRATOR OF VETERANS AFFAIRS.".

B-103167, B-157790, OCT 1, 1974

BECAUSE OF PROVISION CONTAINED IN VA'S ANNUAL APPROPRIATION ACT WHICH PROHIBITS EXPENDITURE OF VA APPROPRIATIONS FOR HOSPITALIZATION OR EXAMINATION OF NON-VA BENEFICIARIES UNLESS VA IS REIMBURSED VA MEDICAL PERSONNEL WOULD BE PROHIBITED FROM PARTICIPATING IN ASSIGNMENT PROGRAM UNDER INTERGOVERNMENTAL PERSONNEL ACT OF 1970, 5 U.S.C. 3371 ET SEQ., WHEREBY NON-VA BENEFICIARIES WOULD BE PROVIDED MEDICAL SERVICES ON NON REIMBURSABLE BASIS. HOWEVER, PARTICIPATION OF VA MEDICAL PERSONNEL IN PROPOSED PROGRAM WOULD NOT BE PROHIBITED PROVIDED VA WAS REIMBURSED IN FULL FOR COST OF SUCH PARTICIPATION OR IF VA PERSONNEL DID NOT CONDUCT EXAMINATIONS OR PROVIDE HOSPITAL CARE FOR NON-VA BENEFICIARIES.

INTERPRETATION OF RESTRICTIVE PROVISION CONTAINED IN ANNUAL APPROPRIATION ACT FOR THE VETERANS ADMINISTRATION:

THE ADMINISTRATOR OF VETERANS AFFAIRS, VETERANS ADMINISTRATION (VA), BY LETTER OF APRIL 3, 1974, REQUESTS OUR CLARIFICATION AS TO THE MEANING AND APPLICATION OF CERTAIN RESTRICTIVE LANGUAGE CONTAINED IN VA'S ANNUAL APPROPRIATION ACT, BECAUSE OF WHAT APPEARS TO HIM TO BE DIFFERING INTERPRETATIONS OF THIS LANGUAGE IN TWO OF OUR DECISIONS - 30 COMP. GEN. 493 (1951) AND 45 COMP. GEN. 196 (1965).

THE RESTRICTIVE LANGUAGE IS CONTAINED IN THE ACT OF OCTOBER 26, 1973, PUBLIC LAW 93-137, 87 STAT. 500, AS WELL AS IN PREVIOUS VA APPROPRIATION ACTS AND, PROVIDES AS FOLLOWS:

"NO PART OF THE FOREGOING APPROPRIATIONS SHALL BE AVAILABLE FOR HOSPITALIZATION OR EXAMINATION OF ANY PERSONS EXCEPT BENEFICIARIES ENTITLED UNDER THE LAWS BESTOWING SUCH BENEFITS TO VETERANS, UNLESS REIMBURSEMENT OF COST IS MADE TO THE APPROPRIATION AT SUCH RATES AS MAY BE FIXED BY THE ADMINISTRATOR OF VETERANS AFFAIRS."

SPECIFICALLY, WE HAVE BEEN ASKED WHETHER, BECAUSE OF THE ABOVE-CITED PROVISION, VA MEDICAL PERSONNEL WOULD BE PREVENTED FROM PARTICIPATING IN INTERGOVERNMENTAL ASSIGNMENT PROGRAMS ESTABLISHED UNDER THE INTERGOVERNMENTAL PERSONNEL ACT OF 1970, APPROVED JANUARY 5, 1971, 5 U.S.C. 3371, ET SEQ., WHERE EXAMINATION OR CARE OF NON-VA BENEFICIARIES WOULD BE PROVIDED IN FULL. THE ADMINISTRATOR ALSO REQUESTS OUR DECISION AS TO -

"WHETHER THE TYPE OF ASSIGNMENT INVOLVED (I.E., DIRECT PATIENT CARE V. NON-PATIENT CARE) WOULD MAKE A DIFFERENCE IN THE LEGALITY OF THE ASSIGNMENT."

AS STATED BY THE ADMINISTRATOR -

"THE INTERGOVERNMENTAL PERSONNEL ACT OF 1970 PERMITS FEDERAL AGENCIES TO ASSIGN EMPLOYEES TO PERFORM WORK OF MUTUAL CONCERN TO STATE AND LOCAL GOVERNMENTS WITH OR WITHOUT REIMBURSEMENT."

IN THIS REGARD 5 U.S.C. 3372(A) PROVIDES AS FOLLOWS:

"(A) ON REQUEST FROM OR WITH THE CONCURRENCE OF A STATE OR LOCAL GOVERNMENT, AND WITH THE CONSENT OF THE EMPLOYEE CONCERNED, THE HEAD OF AN EXECUTIVE AGENCY MAY ARRANGE FOR THE ASSIGNMENT OF -

"(1) AN EMPLOYEE OF HIS AGENCY TO A STATE OR LOCAL GOVERNMENT: AND

"(2) AN EMPLOYEE OF A STATE OR LOCAL GOVERNMENT TO HIS AGENCY: FOR WORK OF MUTUAL CONCERN TO HIS AGENCY AND THE STATE OR LOCAL GOVERNMENT THAT HE DETERMINES WILL BE BENEFICIAL TO BOTH. THE PERIOD OF AN ASSIGNMENT UNDER THIS SUBCHAPTER MAY NOT EXCEED TWO YEARS. HOWEVER, THE HEAD OF AN EXECUTIVE AGENCY MAY EXTEND THE PERIOD OF ASSIGNMENT FOR NOT MORE THAN TWO ADDITIONAL YEARS."

ALSO, SEE 5 U.S.C. 3373 WHICH STATES, IN PERTINENT PART, THE FOLLOWING:

"(A) AN EMPLOYEE OF AN EXECUTIVE AGENCY ASSIGNED TO A STATE OR LOCAL GOVERNMENT UNDER THIS SUBCHAPTER IS DEEMED, DURING THE ASSIGNMENT, TO BE EITHER -

"(1)ON DETAIL TO A REGULAR WORK ASSIGNMENT IN HIS AGENCY; OR

"(2) ON LEAVE WITHOUT PAY FROM HIS POSITION IN THE AGENCY.

"(B) THE ASSIGNMENT OF AN EMPLOYEE OF AN EXECUTIVE AGENCY EITHER ON DETAIL OR ON LEAVE WITHOUT PAY TO A STATE OR LOCAL GOVERNMENT UNDER THIS SUBCHAPTER MAY BE MADE WITH OR WITHOUT REIMBURSEMENT BY THE STATE OR LOCAL GOVERNMENT FOR THE TRAVEL AND TRANSPORTATION EXPENSES TO OR FROM THE PLACE OF ASSIGNMENT AND FOR THE PAY, OR SUPPLEMENTAL PAY, OR A PART THEREOF, OF THE EMPLOYEE DURING ASSIGNMENT. ANY REIMBURSEMENTS SHALL BE CREDITED TO THE APPROPRIATION OF THE EXECUTIVE AGENCY USED FOR PAYING THE TRAVEL AND TRANSPORTATION EXPENSES OR PAY.

"(C) FOR ANY EMPLOYEE SO ASSIGNED AND ON LEAVE WITHOUT PAY -

"(1) IF THE RATE OF PAY FOR HIS EMPLOYMENT BY THE STATE OR LOCAL GOVERNMENT IS LESS THAN THE RATE OF PAY HE WOULD HAVE RECEIVED HAD HE CONTINUED IN HIS REGULAR ASSIGNMENT IN THE AGENCY, HE IS ENTITLED TO RECEIVE SUPPLEMENTAL PAY FROM THE AGENCY IN AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE STATE OR LOCAL GOVERNMENT RATE AND THE AGENCY RATE;"

THE RESTRICTIVE APPROPRIATION LANGUAGE WOULD APPEAR TO PROHIBIT THE PARTICIPATION OF VA MEDICAL PERSONNEL IN AN INTERGOVERNMENTAL ASSIGNMENT PROGRAM WHEREBY SUCH PERSONNEL EXAMINE OR PROVIDE HOSPITAL CARE FOR PERSONS NOT ENTITLED TO VA BENEFITS UNDER THE LAWS RELATING TO VETERANS, UNLESS THE VA IS REIMBURSED FOR THE FULL COST OF PROVIDING THESE MEDICAL SERVICES TO ALL NON-VA BENEFICIARIES IN ACCORDANCE WITH THE CITED STATUTORY PROVISION. SUCH A RESULT WOULD BE SUPPORTED BY THE CONCLUSION OUR OFFICE REACHED IN 45 COMP. GEN. 196, SUPRA.

IN THAT CASE THE VA REQUESTED OUR DECISION AS TO WHETHER VA PHYSICIANS COULD BE GRANTED LEAVES OF ABSENCE WITH PAY FOR PERIODS OF 60 TO 90 DAYS WHILE VOLUNTARILY SERVING IN SOUTH VIET NAM IN CONNECTION WITH PROJECT VIET NAM, A PRIVATELY OPERATED PROJECT, WHEREBY TRAINED MEDICAL PERSONNEL WOULD SERVE IN CIVILIAN VIETNAMESE HOSPITALS AND WOULD RENDER MEDICAL CARE AND ASSISTANCE TO THE CIVILIAN POPULATION. BASING OUR DECISION ON A PROVISION APPEARING IN THE VA APPROPRIATION ACT FOR THAT FISCAL YEAR THAT IS IDENTICAL TO THE PROVISION IN QUESTION HERE, WE STATED IN PERTINENT PART, THAT:

"ADMITTEDLY, THE AUTHORITY OF THE ADMINISTRATOR TO PRESCRIBE REGULATIONS GOVERNING LEAVES OF ABSENCE TO VETERANS ADMINISTRATION PHYSICIANS, NOTWITHSTANDING ANY LAW, EXECUTIVE ORDER OR REGULATION IS VERY BROAD. HOWEVER, A REGULATION GRANTING A SPECIAL LEAVE OF ABSENCE WITH PAY ONLY TO THOSE VETERANS ADMINISTRATION PHYSICIANS WHO VOLUNTEER FOR PROJECT VIET- NAM CLEARLY WOULD ENTAIL THE USE OF THE VETERANS ADMINISTRATION APPROPRIATIONS FOR HOSPITALIZATION AND EXAMINATION OF PERSONS NOT ENTITLED TO SUCH BENEFITS UNDER THE LAWS RELATING TO VETERANS. ACCORDINGLY, WE ARE OF THE VIEW THAT THE USE OF VETERANS ADMINISTRATION APPROPRIATIONS TO PAY THE SALARIES OF THE PHYSICIANS TO WHOM YOUR SUBMISSION APPLIES WHILE SERVING IN CONNECTION WITH PROJECT VIET-NAM WOULD NOT BE AUTHORIZED."

OUR 1951 DECISION REPORTED IN 30 COMP. GEN. 493, SUPRA, INVOLVED AN IDENTICAL PROVISION CONTAINED IN VA'S APPROPRIATION ACT FOR THAT FISCAL YEAR. WE WERE ASKED TO DETERMINE WHETHER, NOTWITHSTANDING THAT PROVISION, THE VA WAS AUTHORIZED TO MAKE PREEMPLOYMENT EXAMINATIONS OF APPOINTEES TO POSITIONS IN THE VA WITHOUT CHARGE UNDER AUTHORITY CONTAINED IN THE ACT OF AUGUST 8, 1946, 5 U.S.C. 150 (NOW 5 U.S.C. 7901), AND THE SPECIFIC VA APPROPRIATION FOR CONDUCTING HEALTH SERVICE PROGRAMS UNDER THAT SECTION OF THE CODE. THE 1946 ACT AUTHORIZED THE DEPARTMENTS AND AGENCIES, INCLUDING GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS, TO ESTABLISH HEALTH SERVICE PROGRAMS FOR THEIR EMPLOYEES IN LOCALITIES WHERE THE NUMBER OF FEDERAL EMPLOYEES WARRANT THE FURNISHING OF HEALTH SERVICES, AFTER CONSULTATION WITH AND UPON CONSIDERATION OF RECOMMENDATIONS OF THE PUBLIC HEALTH SERVICE.

WE STATED IN OUR 1951 DECISION THAT THERE APPEARED TO BE NO DOUBT THAT IN PROVIDING FOR SUCH PREEMPLOYMENT EXAMINATIONS AS A PART OF HEALTH SERVICE PROGRAMS FOR CIVILIAN EMPLOYEES OF THE GOVERNMENT, THE CONGRESS INTENDED THAT THE COST OF PHYSICAL EXAMINATIONS OF CIVILIAN APPOINTEES BY FEDERAL MEDICAL OFFICERS PURSUANT TO ADMINISTRATIVE NEEDS SHOULD BE CHARGED TO THE APPROPRIATIONS MADE AVAILABLE FOR CONDUCTING SUCH PROGRAMS AND CONCLUDED BY STATING:

"THE PROVISION IN THE 'GENERAL APPROPRIATION ACT, 1951,' REQUIRING REIMBURSEMENT TO THE APPROPRIATIONS OF THE VETERANS ADMINISTRATION CHARGED WITH THE COST OF HOSPITALIZATION OR EXAMINATION OF PERSONS OTHER THAN THOSE ENTITLED TO BENEFITS UNDER LAWS APPLICABLE TO VETERANS, WAS FIRST INCLUDED IN SLIGHTLY DIFFERENT LANGUAGE IN THE 'INDEPENDENT OFFICE APPROPRIATION ACT, 1941,' APPROVED APRIL 18, 1940, 54 STAT. 141, AND AMENDED BY THE 'SECOND DEFICIENCY APPROPRIATION ACT, 1940,' APPROVED JUNE 27, 1940, 54 STAT. 635, TO READ AS IT NOW APPEARS IN THE 1951 ACT. THE PURPOSE OF THE PROVISION AS MANIFESTED BY THE DISCUSSIONS ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES - 86 CONG. REC. 509-511 - IS TO REQUIRE REIMBURSEMENT OF THE COST OF EXAMINATION OF NON-VETERAN EMPLOYEES OF OTHER AGENCIES IN ORDER TO AVOID DEPLETION OF FUNDS MADE AVAILABLE FOR MEDICAL AND HOSPITAL SERVICES TO VETERANS.

"IN THE LIGHT OF THE FOREGOING, IT IS ABUNDANTLY CLEAR THAT THE PURPOSES OF THE INVOLVED APPROPRIATION PROVISIONS ARE WHOLLY SEPARATE AND DISTINCT AND ARE IN NO WAY IN CONFLICT WITH EACH OTHER. ACCORDINGLY, WHEN IT IS ADMINISTRATIVELY DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT AND OTHERWISE WITHIN THE PURVIEW OF THE ACT OF AUGUST 8, 1946, PREEMPLOYMENT EXAMINATIONS BY MEDICAL OFFICERS OF THE VETERANS ADMINISTRATION OF APPOINTEES TO POSITIONS IN THE ADMINISTRATION ARE AUTHORIZED TO BE MADE WITHOUT CHARGE TO THE APPLICANT."

THAT DECISION AND OUR DECISION IN 45 COMP. GEN. 196 ARE NOT IN OUR VIEW IN CONFLICT. EACH OF THOSE DECISIONS IS BASED UPON OUR UNDERSTANDING OF THE CONGRESSIONAL INTENTION AS TO THE APPLICATION, IF ANY, OF THE APPROPRIATION RESTRICTION TO SEVERAL DIFFERENT STATUTORY PROVISIONS INCLUDING, IN OUR 1951 DECISION, OUR ATTEMPT TO RECONCILE AND GIVE EFFECT TO EACH OF TWO APPARENTLY CONFLICTING PROVISIONS IN THE GENERAL APPROPRIATION ACT, 1951. BECAUSE OF THESE DIFFERENT STATUTORY PROVISIONS WE SEE NO CONFLICT IN THOSE DECISIONS.

CONCERNING THE QUESTION OF WHETHER THE AUTHORITY CONTAINED IN THE INTERGOVERNMENTAL PERSONNEL ACT OF 1970 IS SUFFICIENT TO PERMIT THE PROPOSED USE OF VA MEDICAL PERSONNEL ON A NON-REIMBURSABLE BASIS AND THEREBY SUPERSEDE THE APPROPRIATION RESTRICTION AS CONTAINED IN PUB. L. 93 -137, 87 STAT. 500, WE MUST CONCLUDE THAT SUCH IS NOT THE CASE. IT IS A WELL-SETTLED PRINCIPLE OF STATUTORY CONSTRUCTION THAT SPECIFIC TERMS COVERING THE GIVEN SUBJECT MATTER WILL PREVAIL OVER GENERAL LANGUAGE OF THE SAME OR ANOTHER STATUTE WHICH MIGHT OTHERWISE, PROVE CONTROLLING. KEPNER V. UNITED STATES, 195 U.S. 100, 125. SEE ALSO, BALTIMORE NATIONAL BANK V. STATE TAX COMMISSION, 297 U.S. 209; ABBATE V. UNITED STATES, 270 F. 735; NIAGARA FIRE INSURANCE CO., V RALEIGH HARDWARE CO.; 62 F.2D 705; 73 AM. JUR. 2ND, STATUTES SEC. 257.

SINCE IT IS CLEAR THAT THE PROVISIONS OF THE INTERGOVERNMENTAL PERSONNEL ACT OF 1970 ARE GENERAL WHEREAS THE RESTRICTIVE APPROPRIATION PROVISION IS SPECIFIC, WE BELIEVE THAT THE LATTER PROVISION IS CONTROLLING AS TO VA MEDICAL PERSONNEL.

IN LIGHT OF THE FOREGOING WE CONCLUDE THAT THE USE OF VA APPROPRIATIONS ON A NON-REIMBURSABLE BASIS TO PAY THE SALARIES OR RELATED EXPENSES OF VA MEDICAL PERSONNEL ASSIGNED TO A STATE OR LOCAL GOVERNMENT UNDER THE INTERGOVERNMENTAL PERSONNEL ACT OF 1970, FOR THE PURPOSE OF CONDUCTING EXAMINATIONS OR PROVIDING HOSPITAL CARE FOR NON VA BENEFICIARIES WOULD NOT BE AUTHORIZED. WE MIGHT NOTE IN THIS REGARD, HOWEVER, THAT THE INTERGOVERNMENTAL PERSONNEL ACT OF 1970 PERMITS, ALTHOUGH IT DOES NOT REQUIRE, THE STATE OR LOCAL GOVERNMENTS INVOLVED TO PAY THE SALARY OF THE ASSIGNED EMPLOYEE DIRECTLY OR REIMBURSE THE FEDERAL AGENCY FOR THE FULL OR PARTIAL COST OF SUCH ASSIGNMENT. WE WOULD HAVE NO OBJECTION TO THE PARTICIPATION OF VA MEDICAL PERSONNEL IN AN INTERGOVERNMENTAL ASSIGNMENT PROGRAM WHERE THE STATE OR LOCAL GOVERNMENTS BENEFITTING THEREFROM EITHER DIRECTLY PAY THE SALARY OF ANY VA MEDICAL PERSONNEL ASSIGNED FROM THE VA ON A LEAVE WITHOUT PAY BASIS OR REIMBURSE THE VA IN FULL FOR ALL VA EXPENDITURES, INCLUDING SALARY, RELATED TO SUCH ASSIGNMENT THEREBY AVOIDING THE USE OF VA FUNDS TO PROVIDE MEDICAL SERVICES TO NON-VA BENEFICIARIES.

THE SECOND QUESTION PRESENTED BY THE ADMINISTRATOR IS "WHETHER THE TYPE OF ASSIGNMENT INVOLVED (I.E., DIRECT PATIENT CARE VS. NONPATIENT CARE) WOULD MAKE A DIFFERENCE IN THE LEGALITY OF THE ASSIGNMENT." IF WE HAVE CORRECTLY INTERPRETED THE SECOND QUESTION TO ASK WHETHER VA MEDICAL PERSONNEL COULD PROPERLY PARTICIPATE IN AN INTERGOVERNMENTAL ASSIGNMENT PROGRAM PROVIDED THAT SUCH PERSONNEL HAVE NO INVOLVEMENT WITH EITHER THE HOSPITALIZATION, OR EXAMINATION OF NON-VA BENEFICIARIES, WE BELIEVE, ON THE BASIS OF THE SPECIFIC LANGUAGE CONTAINED IN THE RESTRICTIVE PROVISION, THAT SUCH PARTICIPATION WOULD NOT BE LEGALLY PROHIBITED EVEN IF CONDUCTED ON A NON-REIMBURSABLE BASIS.

THE QUESTIONS PRESENTED IN VA'S SUBMISSION ARE ANSWERED IN ACCORDANCE WITH THE FOREGOING.