B-154654, OCT. 26, 1964

B-154654: Oct 26, 1964

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DEWEY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29. AS EXECUTOR OF THE WILL OF YOUR LATE FATHER. DEWEY WAS ADMITTED TO THE UNITED STATES ARMY TRIPLER GENERAL HOSPITAL. HEAD AND RIGHT ARM AS THE EFFECT OF A WHIPLASH INJURY SUSTAINED IN NOVEMBER 1961 AND WHEN THE HOSPITAL REFUSED TO FURNISH SPECIAL TREATMENT BY A CIVILIAN PHYSICIAN AS YOU HAD REQUESTED SHE WAS EVACUATED BY NONMILITARY TRANSPORTATION ON MARCH 5. DEWEY AND ON THE FOLLOWING DAY SHE WAS RELEASED FROM THE HOSPITAL. SUCH A CERTIFICATION WAS NOT REQUIRED IN THE PARTICULAR CIRCUMSTANCES IN YOUR CASE. UNITED STATES ARMY TRIPLER GENERAL HOSPITAL HAD ISSUED ANON-AVAILABILITY STATEMENT RETROACTIVE TO THE PERIOD DURING WHICH THE MEDICAL CARE WAS AFFORDED AND THAT THE MEDICAL RECORDS IN THE CASE HAD BEEN REFERRED TO A COUNTY MEDICAL ADVISORY COMMITTEE IN CALIFORNIA FOR RECOMMENDATIONS AS TO THE PROPER ALLOWANCE FOR THE SERVICES RENDERED CONSISTENT WITH THE PRACTICE OF MEDICINE IN THAT LOCALE.

B-154654, OCT. 26, 1964

TO MAJOR HARTLEY C. DEWEY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1964, WITH ENCLOSURES, PROTESTING SETTLEMENT DATED MAY 28, 1964, OF THIS OFFICE WHICH DISALLOWED YOUR CLAIM, AS EXECUTOR OF THE WILL OF YOUR LATE FATHER, DR. HARTLEY G. DEWEY, FOR AN ADDITIONAL PAYMENT ON ACCOUNT OF MEDICAL TREATMENT AFFORDED TO YOUR WIFE, SALLEY G. DEWEY, ON MARCH 6, 1963.

IN YOUR LETTER OF JULY 29, 1963, TO THIS OFFICE YOU RELATED THAT ON FEBRUARY 1, 1963, MRS. DEWEY WAS ADMITTED TO THE UNITED STATES ARMY TRIPLER GENERAL HOSPITAL, HAWAII, BECAUSE OF SEVERE PAIN IN HER NECK, HEAD AND RIGHT ARM AS THE EFFECT OF A WHIPLASH INJURY SUSTAINED IN NOVEMBER 1961 AND WHEN THE HOSPITAL REFUSED TO FURNISH SPECIAL TREATMENT BY A CIVILIAN PHYSICIAN AS YOU HAD REQUESTED SHE WAS EVACUATED BY NONMILITARY TRANSPORTATION ON MARCH 5, 1963, TO THE COMMUNITY HOSPITAL, CARMEL, CALIFORNIA. ON MARCH 6, 1963, YOUR LATE FATHER PERFORMED MANIPULATIVE SURGERY UNDER ANESTHESIA WHICH YOU SAY BROUGHT RELIEF TO MRS. DEWEY AND ON THE FOLLOWING DAY SHE WAS RELEASED FROM THE HOSPITAL. UPON THE DENIAL BY THE CALIFORNIA PHYSICIANS SERVICE, 450 MISSION STREET, SAN FRANCISCO, CALIFORNIA, TO PAY THE CLAIM, SUBMITTED UNDER THE MEDICARE PROGRAM, BECAUSE OF THE LACK OF A CERTIFICATE OF NONAVAILABILITY, YOU PRESENTED A CLAIM TO OUR CLAIMS DIVISION ON THE PREMISE THAT UNDER PARAGRAPH 9A (4) (B), AIR FORCE REGULATION 160-41, SUCH A CERTIFICATION WAS NOT REQUIRED IN THE PARTICULAR CIRCUMSTANCES IN YOUR CASE.

THE OFFICE FOR DEPENDENTS' MEDICAL CARE, OFFICE OF THE SURGEON GENERAL, UNITED STATES ARMY, DENVER, COLORADO, IN RESPONSE TO OFFICE LETTER OF AUGUST 14, 1963, FURNISHED A REPORT DATED SEPTEMBER 4, 1963, ADVISING THAT THE COMMANDING GENERAL, UNITED STATES ARMY TRIPLER GENERAL HOSPITAL HAD ISSUED ANON-AVAILABILITY STATEMENT RETROACTIVE TO THE PERIOD DURING WHICH THE MEDICAL CARE WAS AFFORDED AND THAT THE MEDICAL RECORDS IN THE CASE HAD BEEN REFERRED TO A COUNTY MEDICAL ADVISORY COMMITTEE IN CALIFORNIA FOR RECOMMENDATIONS AS TO THE PROPER ALLOWANCE FOR THE SERVICES RENDERED CONSISTENT WITH THE PRACTICE OF MEDICINE IN THAT LOCALE. IN A SUPPLEMENTAL REPORT DATED NOVEMBER 21, 1963, THAT OFFICE ADVISED OUR CLAIMS DIVISION THAT THE RECORDS IN THE CASE WERE REFERRED TO THE ADVISORY COMMITTEE OF THE MONTEREY COUNTY MEDICAL SOCIETY, CALIFORNIA, UNDER THE "SPECIAL REPORT" PROCEDURE BECAUSE "THE PROCEDURE, REDUCTION OF SUBLUXATION (INCOMPLETE DISLOCATION) OF CERVICAL VERTEBRAE, BY MANIPULATION UNDER GENERAL ANESTHETIC" DOES NOT HAVE A NEGOTIATED ALLOWANCE IN THE MEDICARE SCHEDULE OF ALLOWANCES. IT WAS REPORTED THAT AFTER REVIEW OF ALL AVAILABLE INFORMATION THAT COMMITTEE CONCLUDED THAT "THIS PROCEDURE CLOSELY PARALLELED CODE 1232 OF THE SCHEDULE OF ALLOWANCES, MANIPULATION OF JOINT UNDER ANESTHESIA, INCLUDING APPLICATION OF CAST OR TRACTION (INDEPENDENT PROCEDURE) (DISLOCATIONS EXCLUDED), SPINE, THE ALLOWANCE FOR WHICH IS $27.60.' THE OFFICE FOR DEPENDENTS' MEDICAL CARE FURTHER ADVISED THAT, IN THE ABSENCE OF EVIDENCE TO SUPPORT PAYMENT FOR UNUSUAL EFFORT, THE COMMITTEE MADE A RECOMMENDATION THAT THE AMOUNT OF $27.60 CONSTITUTED A PROPER PAYMENT IN THIS CASE AND THAT SUCH RECOMMENDATION WAS SUPPORTED BY THE PROFESSIONAL STAFF OF THAT OFFICE. OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM ON THE BASIS OF THE INFORMATION FURNISHED BY THE OFFICE FOR DEPENDENTS' MEDICAL CARE.

YOU HAVE PROTESTED THE SETTLEMENT ON THE GROUND THAT THE DA FORM 1863,"STATEMENT OF SERVICES PROVIDED BY CIVILIAN MEDICAL SERVICES--- P.L. 569--- 84TH CONGRESS" SUBMITTED INDICATED THAT THE SERVICES RENDERED AS CODE 1256, WHEREAS THE ADVISORY COMMITTEE OF THE MONTEREY COUNTY MEDICAL SOCIETY CONSIDERED THE MEDICAL SERVICE UNDER PROCEDURE NO. 1232 WHICH EXCLUDES DISLOCATION YET, AS ASSERTED, AN INCOMPLETE DISLOCATION WAS INVOLVED AND THAT THE FORM SHOULD BE MODIFIED TO REFLECT NOT ONLY THE ACTUAL OPERATION, BUT THE 3 HOSPITAL VISITS AND 5 OTHER MEDICAL VISITS. ALSO, YOU SAY THAT THERE ARE ONLY A SMALL MINORITY OF DOCTORS IN THE UNITED STATES WITH AN ADEQUATE KNOWLEDGE OF THE PROCEDURE USED AND, THEREFORE, THE FINDING OF THE ADVISORY COMMITTEE CAN BE QUESTIONED AS IT IS DOUBTFUL THAT ONE OF THOSE DOCTORS ATTENDED THE COMMITTEE MEETING.

SECTION 1082, TITLE 10 OF THE U.S.C. PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"CONTRACTS FOR MEDICAL CARE FOR SPOUSES AND CHILDREN: ADVISORY COMMITTEES. TO CARRY OUT SECTIONS 1079--1081 OF THIS TITLE, THE SECRETARY OF DEFENSE MAY ESTABLISH ADVISORY COMMITTEES ON INSURANCE, MEDICAL SERVICE, AND HEALTH PLANS, TO ADVISE AND MAKE RECOMMENDATIONS TO HIM. SHALL PRESCRIBE REGULATIONS DEFINING THEIR SCOPE, ACTIVITIES AND PROCEDURES. EACH COMMITTEE SHALL CONSIST OF THE SECRETARY, OR HIS DESIGNEE, AS CHAIRMAN, AND SUCH OTHER PERSONS AS THE SECRETARY MAY SELECT. SO FAR AS POSSIBLE, THE MEMBERS SHALL BE REPRESENTATIVE OF THE ORGANIZATIONS IN THE FIELD OF INSURANCE, MEDICAL SERVICE, AND HEALTH PLANS. * * *"

IMPLEMENTING REGULATION, PARAGRAPH 6A (2), AIR FORCE REGULATION 170 18, DATED OCTOBER 31, 1961, PROVIDES THAT WHERE AUTHORIZED CARE IS PROVIDED TO ELIGIBLE DEPENDENTS BY CIVILIAN SOURCES WHICH ARE NOT SUBJECT TO CONTRACT PROCEDURES, DA FORMS 1863-1 AND 1863-2 (FORMERLY DA FORM 1863) WILL BE SUBMITTED TO THE EXECUTIVE DIRECTOR, OFFICE OF DEPENDENTS' MEDICAL CARE, FOR ACTION.

WHILE WE DO NOT HAVE THE COMPLETE FILE BEFORE US, IT APPEARS FROM THE INFORMATION FURNISHED BY THE OFFICE FOR DEPENDENTS' MEDICAL CARE THAT A DULY QUALIFIED AND COMPETENT MEDICAL ADVISORY AUTHORITY--- THE ADVISORY COMMITTEE OF THE MONTEREY COUNTY MEDICAL SOCIETY--- WHICH PRESUMABLY WAS CONSTITUTED IN ACCORDANCE WITH THE ABOVE GOVERNING PROVISION OF LAW DETERMINED THAT $27.60 WAS A PROPER CHARGE FOR THE SERVICES RENDERED. WHETHER ANY OF THE MEDICAL MEMBERS OF THAT COMMITTEE KNEW OR WAS WILLING TO PERFORM THE OPERATIVE PROCEDURE USED ON MRS. DEWEY IS NOT DISCLOSED BY THE RECORD BEFORE US AND WE HAVE FOUND NOTHING IN THE LAW OR REGULATIONS WHICH REQUIRES THAT A MEMBER OF THE COMMITTEE BE SO QUALIFIED. FURTHERMORE, THERE IS NOTHING IN SUCH RECORD TO SHOW THAT BOTH THE OFFICE OF DEPENDENTS' MEDICAL CARE AND THE ADVISORY COMMITTEE WERE NOT FULLY FAMILIAR WITH ALL THE ESSENTIAL ATTENDANT FACTS AND CIRCUMSTANCES. VIEW THEREOF WE SEE NO VALID GROUNDS FOR QUESTIONING OR OTHERWISE DISTURBING THAT FINDING. HENCE THE RECORD PRESENTS NO PROPER BASIS TO ALLOW YOU THE DIFFERENCE CLAIMED. ACCORDINGLY, THE SETTLEMENT OF MAY 28, 1964, IS SUSTAINED.

REGARDING YOUR REQUEST THAT WE DETERMINE WHETHER YOUR LETTER OF MARCH 22, 1963, COPY OF WHICH YOU FURNISHED US, WAS CONSIDERED BY THE ADVISORY COMMITTEE, WE MAY ADVISE YOU THAT IT APPEARS THAT THE INFORMATION CONTAINED IN THAT LETTER, EXCEPT FOR THE CLAIM FOR $800 UNDER PROCEDURE NO. 1256, WAS EMBODIED IN YOUR LETTER OF JULY 29, 1963. SINCE THE LETTER OF JULY 29, 1963, WAS IN THE POSSESSION OF THE OFFICE OF DEPENDENTS' MEDICAL CARE PRIOR TO THEIR SUBMISSION OF THE CASE TO THE ADVISORY COMMITTEE WHO, APPARENTLY, WERE AWARE THAT YOUR CLAIM WAS FOR $800 AND IN VIEW OF THE STATEMENT IN YOUR LETTER OF JUNE 29, 1964, THAT THE DA FORM 1863 INDICATED THE SERVICES RENDERED AS CODE 1256, WE HAVE TAKEN NO ACTION ON YOUR SPECIFIC REQUEST. HOWEVER, IF YOU BELIEVE THAT THE INFORMATION CONTAINED IN YOUR LETTER OF MARCH 22, 1963, WAS NOT CONSIDERED BY THE OFFICE FOR DEPENDENTS' MEDICAL CARE AND THE ADVISORY COMMITTEE, YOU MAY ADDRESS ANY FURTHER INQUIRY TO THE ADMINISTRATIVE OFFICE.

WITH REGARD TO YOUR REQUEST TO BE ADVISED IF THERE ARE OTHER CHANNELS TO BE FOLLOWED BEFORE GOING TO THE COURTS, IT MAY BE STATED THAT THE DECISIONS OF THIS OFFICE ARE CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. WE WOULD NOT BE PRECLUDED FROM GIVING THE MATTER FURTHER CONSIDERATION, HOWEVER, IF, UPON THE BASIS OF FURTHER EVIDENCE PRESENTED, THE ADVISORY COMMITTEE AND THE ADMINISTRATIVE OFFICE SHOULD CHANGE ITS CONCLUSION AS TO THE PROPER AMOUNT FOR ALLOWANCE IN THIS CASE.