B-140424, JANUARY 5, 1960, 39 COMP. GEN. 495

B-140424: Jan 5, 1960

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NOTWITHSTANDING THAT THE TRAVEL WAS PERFORMED PURSUANT TO ORDERS. 1960: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 22. YOUR REQUESTS HAVE BEEN ASSIGNED CONTROL NO. 59-35 BY THE PER DIEM. WAS DIRECTED TO PROCEED TO THE ARMY HOSPITAL HEIDELBERG. THE INDIVIDUAL WAS DIRECTED TO RETURN TO HIS PROPER STATION. CAPTAIN DALMAS WAS ASSIGNED TO THE SAME HOSPITAL FOR 5 DAYS FOR THE PURPOSE OF ACTING AS NONMEDICAL ATTENDANT FOR HIS SON. WAS AUTHORIZED. THE LATTER MODE WAS UTILIZED AND CAPTAIN DALMAS REQUESTS REIMBURSEMENT OF $69.40 AS THE CONSTRUCTIVE FIRST-CLASS RAIL FARE WITH SLEEPER ACCOMMODATIONS FROM VICENZA. MAY THE PURPOSE FOR WHICH THE TRAVEL WAS PERFORMED BY THE MILITARY MEMBER BE CONSIDERED TO INVOICE PUBLIC BUSINESS EXCLUDING IT FROM THE PROVISION OF PARA. 6454.

B-140424, JANUARY 5, 1960, 39 COMP. GEN. 495

MILITARY PERSONNEL - TRAVEL EXPENSES - MEMBERS ACCOMPANYING DEPENDENTS TO MEDICAL FACILITIES IN VIEW OF THE FACT THAT THE SPECIFIC BENEFITS ENUMERATED IN THE DEPENDENTS' MEDICAL CARE ACT DO NOT INCLUDE AUTHORITY FOR TRANSPORTATION AT GOVERNMENT EXPENSE AND THAT SUCH AUTHORITY MAY NOT BE IMPLIED FROM THE AUTHORITY TO TRANSFER PATIENTS BETWEEN FACILITIES, THE TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES AS ATTENDANTS FOR THEIR MINOR CHILDREN TO MEDICAL FACILITIES MAY NOT BE REGARDED AS TRAVEL ON OFFICIAL BUSINESS FOR REIMBURSEMENT FOR THEIR TRAVEL EXPENSES, BUT MUST BE REGARDED AS TRAVEL FOR THE CONVENIENCE OF THE MEMBER AND DEPENDENT, NOTWITHSTANDING THAT THE TRAVEL WAS PERFORMED PURSUANT TO ORDERS.

TO CAPTAIN J. G. SUMNER, DEPARTMENT OF THE ARMY, JANUARY 5, 1960:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 22, 1958, AND JANUARY 26, 1959, FORWARDED HERE BY THE CHIEF OF FINANCE UNDER DATE OF AUGUST 5, 1959, REQUESTING A DECISION BY THIS OFFICE AS TO THE PROPRIETY OF PAYMENT OF $69.40 AS REIMBURSEMENT FOR THE COST OF TRAVEL PERFORMED BY CAPTAIN VICTOR P. DALMAS, JR., UNITED STATES ARMY, AND $63.36 AS REIMBURSEMENT FOR THE COST OF TRAVEL PERFORMED BY COLONEL WILLIAM C. LINDLEY, JR., UNITED STATES AIR FORCE, AND HIS DEPENDENT SON, THE MEMBERS HAVING TRAVELED AS ATTENDANTS FOR THEIR MINOR CHILDREN PURSUANT TO TRAVEL ORDERS TRANSFERRING SUCH DEPENDENTS FOR MEDICAL PURPOSES BETWEEN ARMED FORCES MEDICAL FACILITIES IN EUROPE. YOUR REQUESTS HAVE BEEN ASSIGNED CONTROL NO. 59-35 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

BY TRAVEL ORDERS OF HEADQUARTERS, UNITED STATES ARMY HOSPITAL, VICENZA, ITALY, DATED NOVEMBER 13, 1958, VICTOR P. DALMAS III, DEPENDENT SON OF CAPTAIN DALMAS, WAS DIRECTED TO PROCEED TO THE ARMY HOSPITAL HEIDELBERG, HEIDELBERG, GERMANY, FOR AN INDEFINITE PERIOD FOR THE PURPOSE OF MEDICAL CONSULTATION. UPON COMPLETION OF TREATMENT, THE INDIVIDUAL WAS DIRECTED TO RETURN TO HIS PROPER STATION. CAPTAIN DALMAS WAS ASSIGNED TO THE SAME HOSPITAL FOR 5 DAYS FOR THE PURPOSE OF ACTING AS NONMEDICAL ATTENDANT FOR HIS SON, AGE 3 1/2 YEARS. COMMERCIAL RAIL TRANSPORTATION, OR TRAVEL BY PRIVATELY OWNED AUTOMOBILE AT A COST NOT TO EXCEED COMMERCIAL TRANSPORTATION, WAS AUTHORIZED. THE LATTER MODE WAS UTILIZED AND CAPTAIN DALMAS REQUESTS REIMBURSEMENT OF $69.40 AS THE CONSTRUCTIVE FIRST-CLASS RAIL FARE WITH SLEEPER ACCOMMODATIONS FROM VICENZA, ITALY, TO HEIDELBERG, GERMANY, AND RETURN. CAPTAIN DALMAS SEEKS REIMBURSEMENT ONLY FOR THE COST OF HIS OWN TRANSPORTATION, SINCE NO ADDITIONAL EXPENSE WOULD BE NECESSARY FOR HIS SON IF TRAVEL HAD BEEN BY COMMERCIAL RAIL. YOUR LETTER OF DECEMBER 22, 1958, PRESENTS THE FOLLOWING QUESTION:

A. MAY THE PURPOSE FOR WHICH THE TRAVEL WAS PERFORMED BY THE MILITARY MEMBER BE CONSIDERED TO INVOICE PUBLIC BUSINESS EXCLUDING IT FROM THE PROVISION OF PARA. 6454, JOINT TRAVEL REGULATIONS; THUS MAKING, TRANSPORTATION COSTS PROPERLY PAYABLE FROM PUBLIC FUNDS?

BY TRAVEL ORDERS OF HEADQUARTERS, UNITED STATES ARMY HOSPITAL, VICENZA, ITALY, DATED DECEMBER 6, 1958, WILLIAM C. LINDLEY III, DEPENDENT SON OF COLONEL WILLIAM C. LINDLEY, JR., WAS DIRECTED TO PROCEED TO THE UNITED STATES AIR FORCE HOSPITAL WIESBADEN, WIESBADEN, GERMANY, FOR MEDICAL TREATMENT. UPON COMPLETION OF THE TREATMENT THE DEPENDENT WAS DIRECTED TO RETURN TO HIS PROPER STATION. COLONEL LINDLEY WAS ASSIGNED TO THE SAME HOSPITAL FOR A PERIOD OF 5 DAYS FOR THE PURPOSE OF ACTING AS A NONMEDICAL ATTENDANT FOR HIS 13-YEAR-OLD SON. TRAVEL WAS TO BE BY GOVERNMENT AIR, OR BY COMMERCIAL RAIL ON TRANSPORTATION REQUESTS TO BE FURNISHED BY THE TRANSPORTATION OFFICER. TRAVEL WAS PERFORMED BY COMMERCIAL RAIL AND, AS NO TRANSPORTATION REQUESTS WERE AVAILABLE AT THE TIME OF TRAVEL, COLONEL LINDLEY SEEKS REIMBURSEMENT OF $63.36 AS THE ONE-WAY COMMERCIAL RAIL FARE FOR TWO, RETURN TRANSPORTATION HAVING BEEN PROVIDED IN KIND. YOUR LETTER OF JANUARY 26, 1959, PRESENTED THE FOLLOWING QUESTIONS:

QUESTION: MAY THE TRAVEL PERFORMED BY COLONEL WILLIAM C. LINDLEY, JR., BE CONSIDERED TO INVOLVE PUBLIC BUSINESS ENTITLING HIM TO REIMBURSEMENT FOR EXPENSE CLAIMED FOR HIS OWN TRAVEL?

QUESTION: MAY THE EXISTENCE OF AN EMERGENCY AS SUPPORTED BY DOCUMENTATION BE CONSIDERED AN ACCEPTABLE BASIS FOR REIMBURSEMENT OF THE COST OF TRAVEL OF THE DEPENDENT PATIENT WHEN TRANSPORTATION WAS PERFORMED AT PERSONAL EXPENSE OF THE SPONSOR IN LIEU OF UTILIZING TRANSPORTATION IN KIND NORMALLY PROVIDED BY THE GOVERNMENT?

THE DEPENDENTS' MEDICAL CARE ACT, 70 STAT. 250, 10 U.S.C. 1076, PROVIDES FOR MEDICAL CARE OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES IN MEDICAL FACILITIES OF THE UNIFORMED SERVICES SUBJECT TO THE AVAILABILITY OF SPACE AND THE CAPABILITIES OF THE PROFESSIONAL STAFF, AND IS THE AUTHORITY FOR THE CARE OF DEPENDENTS IN NONGOVERNMENTAL FACILITIES AT GOVERNMENT EXPENSE. SECTION 103 (A) OF THAT ACT, 10 U.S.C. 1076 (A), SETS THE GENERAL STANDARDS OF UTILIZATION OF GOVERNMENT FACILITIES AS FOLLOWS:

SEC. 103. (A) WHENEVER REQUESTED, MEDICAL CARE SHALL BE GIVEN DEPENDENTS OF MEMBERS OF A UNIFORMED SERVICE, AND DEPENDENTS OF PERSONS WHO DIED WHILE A MEMBER OF A UNIFORMED SERVICE, IN MEDICAL FACILITIES OF THE UNIFORMED SERVICES SUBJECT TO THE AVAILABILITY OF SPACE, FACILITIES, AND THE CAPABILITIES OF THE MEDICAL STAFF. ANY DETERMINATION MADE BY THE MEDICAL OFFICER OR CONTRACT SURGEON IN CHARGE, OR HIS DESIGNEE, AS TO AVAILABILITY OF SPACE, FACILITIES, AND THE CAPABILITIES OF THE MEDICAL STAFF, SHALL BE CONCLUSIVE. THE MEDICAL CARE OF SUCH DEPENDENTS PROVIDED FOR IN MEDICAL FACILITIES OF THE UNIFORMED SERVICES SHALL IN NO WAY INTERFERE WITH THE PRIMARY MISSION OF THOSE FACILITIES.

SECTION 103 (F) OF THE MEDICARE ACT, 10 U.S.C. 1077 (A) (1), AUTHORIZES MEDICAL CARE IN THE FOLLOWING LANGUAGE:

(F) MEDICAL CARE UNDER THIS SECTION SHALL BE LIMITED TO THE FOLLOWING:

(1) DIAGNOSIS;

(2) TREATMENT OF ACUTE MEDICAL AND SURGICAL CONDITIONS;

(3) TREATMENT OF CONTAGIOUS DISEASES;

(4) IMMUNIZATION; AND

(5) MATERNITY AND INFANT CARE.

IT WILL BE NOTED THAT SECTION 103 (F) LIMITS THE MEDICAL CARE AVAILABLE UNDER THE ACT TO THE LISTED BENEFITS AND THAT THE TRANSPORTATION OF DEPENDENTS BETWEEN SERVICE MEDICAL FACILITIES, WHEN THE ADMITTING FACILITY IS UNABLE TO PROVIDE ADEQUATE CARE, WHETHER THEY ARE WITH OR WITHOUT MEMBER ATTENDANTS, IS NOT INCLUDED. THE LEGISLATIVE HISTORY OF THE MEDICARE ACT DOES NOT INDICATE THAT THIS PROBLEM WAS CONSIDERED AND CANNOT BE A BASIS TO STATE THAT CONGRESS INTENDED TO INCLUDE THIS BENEFIT. THE LANGUAGE OF THE ACT AT NO POINT INDICATES AN INTENT TO PROVIDE TRANSPORTATION BETWEEN GOVERNMENT FACILITIES IN SUCH CIRCUMSTANCES. SECTION 103 (H) (2) OF THE MEDICARE ACT, 10 U.S.C. 1077 (C) (2), PROVIDES THAT AMBULANCE SERVICE SHALL NOT BE PROVIDED EXCEPT IN ACUTE EMERGENCIES, AND APPEARS TO BE THE ONLY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS IN THE ACT.

PARAGRAPH 14 (C), ARMY REGULATIONS 40-121, DATED NOVEMBER 5, 1956, WHICH HAS BEEN INDICATED AS AUTHORITY FOR THE TRANSFER AND TRANSPORTATION OF DEPENDENT PATIENTS BETWEEN MEDICAL FACILITIES IS AS FOLLOWS:

C. WHEN A HOSPITALIZED PATIENT REQUIRES CARE BEYOND THE CAPABILITIES OF THE MEDICAL FACILITY, THE COMMANDING OFFICER OR OFFICER IN CHARGE OF THE FACILITY IS AUTHORIZED TO TRANSFER THE PATIENT TO THE NEAREST MEDICAL FACILITY OF THE UNIFORMED SERVICES WHERE THE REQUIRED TREATMENT IS AVAILABLE, OR IS AUTHORIZED TO PROCURE FROM CIVILIAN SOURCES THE NECESSARY SUPPLEMENTAL MATERIAL AND PROFESSIONAL AND PERSONAL SERVICES REQUIRED FOR THE PROPER CARE AND TREATMENT OF THE PATIENT IN A MEDICAL FACILITY OF A UNIFORMED SERVICE. THIS AUTHORIZATION APPLIES AFTER THE ADMISSION OF A PATIENT WHEN THE PATIENT'S CONDITION SO REQUIRES.

WHILE THE QUOTED REGULATION PROVIDES AUTHORITY TO TRANSFER DEPENDENT PATIENTS FROM FACILITY TO FACILITY, IT MAY NOT BE CONSIDERED TO PROVIDE AUTHORITY FOR PAYMENT OF TRANSPORTATION EXPENSES INCIDENT TO SUCH TRANSFER SINCE THE REGULATION MAY NOT PROVIDE BENEFITS IN EXCESS OF THOSE PROVIDED BY THE MEDICAL ACT ITSELF.

THE COMMENTS OF THE SURGEON GENERAL, DATED MAY 7, 1959, ARE TO THE EFFECT THAT IT IS FELT THAT THE AUTHORITY FOR TRANSFERRING DEPENDENT PATIENTS AT GOVERNMENT EXPENSE IS A NECESSARY IMPLICATION OF THE MEDICARE ACT. THIS OFFICE IS UNABLE TO FIND SUPPORT FOR THAT POSITION. THE PURPOSE OF THE MEDICARE ACT IS STATED IN SECTION 101 THEREOF, 10 U.S.C. 1071, AS FOLLOWS:

SEC. 101. THE PURPOSE OF THIS ACT IS TO CREATE AND MAINTAIN HIGH MORALE THROUGHOUT THE UNIFORMED SERVICES BY PROVIDING AN IMPROVED AND UNIFORM PROGRAM OF MEDICAL CARE FOR MEMBERS OF THE UNIFORMED SERVICES AND THEIR DEPENDENTS.

IT IS OUR OPINION THAT CONGRESS EXPECTED THAT THE BENEFITS GRANTED SPECIFICALLY, BEING IN EXCESS OF PREVIOUS BENEFITS, WOULD ACCOMPLISH THE STATED PURPOSE. IT DOES NOT APPEAR THAT THE RIGHT TO TRANSPORTATION AT GOVERNMENT EXPENSE BETWEEN MEDICAL FACILITIES IS SO NECESSARY TO THE PURPOSES OF THE MEDICARE ACT AS TO BE NECESSARILY IMPLIED. ON THE CONTRARY, IT WOULD APPEAR THAT ADEQUATE MEDICAL CARE MAY BE PROVIDED TO THE DEPENDENTS AND MEMBERS WITHOUT PAYMENT OF THEIR TRANSPORTATION EXPENSES FROM ONE FACILITY TO ANOTHER, ALTHOUGH PAYMENT OF SUCH EXPENSES MAY MAKE THE SERVICE MORE CONVENIENT FOR THE MEMBER AND HIS DEPENDENTS.

SECTION 303 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 253, AUTHORIZES TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS AND THEIR DEPENDENTS UNDER REGULATIONS PROMULGATED BY THE SECRETARIES CONCERNED. THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO THIS STATUTORY AUTHORITY NEITHER INCLUDE SPECIFIC AUTHORITY FOR THE TRAVEL OF DEPENDENT PATIENTS ON TRANSFER FROM ONE HOSPITAL TO ANOTHER NOR DO THEY PROVIDE SPECIFIC AUTHORITY FOR THE TRAVEL OF MEMBERS AS NON-MEDICAL ATTENDANTS TO DEPENDENTS ENGAGED IN SUCH TRAVEL. ON THE CONTRARY, THE TRAVEL OF DEPENDENTS IS LIMITED TO TRAVEL INCIDENT TO A PERMANENT CHANGE OF STATION OF THE MEMBER. INASMUCH AS THE TRAVEL PERFORMED BY THE MEMBERS DOES NOT APPEAR TO HAVE BEEN TRAVEL ON "PUBLIC BUSINESS" AND APPEARS TO BE PRIMARILY FOR THE CONVENIENCE AND BENEFIT OF THE MEMBER AND HIS DEPENDENT, THE TRAVEL IS SUCH AS CONTEMPLATED BY PARAGRAPH 6454 OF THE JOINT TRAVEL REGULATIONS, FOR WHICH REIMBURSEMENT MAY NOT BE MADE BY THE GOVERNMENT. HENCE, EVEN THOUGH THE TRAVEL OF CAPTAIN DALMAS AND COLONEL LINDLEY WAS PURSUANT TO ORDERS, THOSE ORDERS MUST BE CONSIDERED AS OF A PERMISSIVE NATURE SUCH AS ARE CONTEMPLATED BY PARAGRAPH 6453 OF THE JOINT TRAVEL REGULATIONS. THEREFORE, TRAVEL PERFORMED PURSUANT TO SUCH ORDERS DOES NOT ENTITLE THE MEMBER TO REIMBURSEMENT OF HIS TRAVEL EXPENSES.

IT IS INDICATED BY YOUR LETTER OF DECEMBER 22, 1958, THAT PARAGRAPHS 7, 16D, AND 18, USAREUR CIRCULAR 40-350, OCTOBER 23, 1957, REQUIRE THAT DEPENDENT CHILDREN UNDER 12 YEARS OF AGE BE ACCOMPANIED BY A PARENT, OR OTHER RESPONSIBLE PERSON DESIGNATED BY THE PARENT. HOWEVER, THIS REQUIREMENT, WITHOUT OTHER AUTHORITY OF LAW FOR REIMBURSEMENT OF TRAVEL EXPENSES, MAY NOT BE CONSIDERED AUTHORITY FOR SUCH A PAYMENT.

ACCORDINGLY, PAYMENT OF THE VOUCHERS PRESENTED IS NOT AUTHORIZED AND THE VOUCHERS WILL BE RETAINED. THE ADDITIONAL QUESTIONS PRESENTED BY YOUR LETTER OF DECEMBER 22, 1956, DO NOT REQUIRE FURTHER ANSWER IN VIEW OF THE FOREGOING.