B-160806, MARCH 8, 1967, 46 COMP. GEN. 695

B-160806: Mar 8, 1967

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ETC. - STATE LICENSE FEES THE STATE LICENSE FEES IMPOSED ON MEDICAL DOCTORS EMPLOYED BY THE PUBLIC HEALTH SERVICE (PHS) WHO ARE DETAILED TO STATES OR LOCAL HEALTH AGENCIES MAY NOT BE REIMBURSED TO THE EMPLOYEES DETAILED TO CARRY OUT STATE FUNCTIONS. WHO ARE DETAILED OR ASSIGNED TO WORK WITH STATE OR LOCAL HEALTH AGENCIES. THE ACTING SECRETARY STATES THAT: WHEN MEDICAL DOCTORS EMPLOYED BY THE PUBLIC HEALTH SERVICE ARE DETAILED TO WORK WITH STATE OR LOCAL HEALTH AGENCIES. STATE LAW MAY REQUIRE THAT THEY BE LICENSED TO PRACTICE MEDICINE IN THE STATE TO WHICH THEY ARE SO DETAILED. MANY OF THESE DOCTORS ARE ALREADY LICENSED TO PRACTICE MEDICINE IN ANOTHER STATE AND THE ADDITIONAL LICENSE IS OF NO PERSONAL BENEFIT.

B-160806, MARCH 8, 1967, 46 COMP. GEN. 695

DETAILS - STATES, MUNICIPALITIES, ETC. - STATE LICENSE FEES THE STATE LICENSE FEES IMPOSED ON MEDICAL DOCTORS EMPLOYED BY THE PUBLIC HEALTH SERVICE (PHS) WHO ARE DETAILED TO STATES OR LOCAL HEALTH AGENCIES MAY NOT BE REIMBURSED TO THE EMPLOYEES DETAILED TO CARRY OUT STATE FUNCTIONS, ABSENT STATUTORY AUTHORITY FOR THE USE OF FEDERAL FUNDS TO DEFRAY THE COST OF A LICENSE FEE, 42 U.S.C. 215, ALTHOUGH AUTHORIZING THE DETAIL OF PERSONNEL AND PROVIDING FOR THE USE OF APPROPRIATED FUNDS AND CREDIT FOR THE STATE SERVICE AS THOUGH PERFORMED FOR PHS, FAILING TO INCLUDE AUTHORITY FOR THE PAYMENT OF A LICENSE FEE, AND 42 U.S.C. 246 (F), ENACTED TO FACILITATE THE INTERCHANGE OF MEDICAL PERSONNEL WITH STATE AGENCIES, EXCLUDING REFERENCE TO A LICENSE FEE IN THE ENUMERATION OF REIMBURSEABLE ITEMS OF COST, AN OMISSION INFERRED AS INTENTIONAL UNDER THE RULE OF STATUTORY CONSTRUCTION OF A PROVISION THAT DESIGNATES PERSONS AND THINGS.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, MARCH 8, 1967:

LETTER DATED JANUARY 31, 1967, TOGETHER WITH STAFF MEMORANDUM, FROM THE ACTING SECRETARY, CONCERNS THE USE OF APPROPRIATED FUNDS TO PAY STATE LICENSE FEES FOR MEDICAL DOCTORS EMPLOYED BY THE PUBLIC HEALTH SERVICE (PHS), WHO ARE DETAILED OR ASSIGNED TO WORK WITH STATE OR LOCAL HEALTH AGENCIES.

THE ACTING SECRETARY STATES THAT:

WHEN MEDICAL DOCTORS EMPLOYED BY THE PUBLIC HEALTH SERVICE ARE DETAILED TO WORK WITH STATE OR LOCAL HEALTH AGENCIES, STATE LAW MAY REQUIRE THAT THEY BE LICENSED TO PRACTICE MEDICINE IN THE STATE TO WHICH THEY ARE SO DETAILED. MANY OF THESE DOCTORS ARE ALREADY LICENSED TO PRACTICE MEDICINE IN ANOTHER STATE AND THE ADDITIONAL LICENSE IS OF NO PERSONAL BENEFIT. HERETOFORE, THIS DEPARTMENT HAS ADVISED THE DOCTORS THAT, UNDER DECISIONS OF YOUR OFFICE, THEY MUST BEAR THE EXPENSE OF SUCH MEDICAL LICENSURE. THE AMENDMENT OF SECTION 314 (F) OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C. SEC. 246 (F), BY P.L. 89-749, IS INTENDED TO FACILITATE AND INCREASE THE INTERCHANGE OF MEDICAL PERSONNEL WITH STATE AGENCIES. THIS INCREASE WILL IN TURN INCREASE THE NUMBER OF OCCASIONS ON WHICH PUBLIC HEALTH DOCTORS WILL BE REQUIRED TO PURCHASE MEDICAL LICENSES.

THE STAFF MEMORANDUM PREPARED BY YOUR OFFICE OF GENERAL COUNSEL CONSIDERS OUR DECISIONS ON THE SUBJECT AND ADVANCES A JUSTIFICATION FOR THE PROPRIETY OF USE OF APPROPRIATED FUNDS FOR THE PAYMENT OF SUCH LICENSE FEES IN THE CIRCUMSTANCES DESCRIBED. THE ACTING SECRETARY ASKS RECONSIDERATION OF OUR DECISIONS THAT LICENSE FEES MAY NOT BE PAID FROM APPROPRIATED FUNDS, AND, ON THE BASIS OF THE MEMORANDUM, REQUESTS THAT WE APPROVE SUCH PAYMENTS.

PERTINENT FACTS AND CIRCUMSTANCES AS WELL AS YOUR DEPARTMENT'S VIEWS IN THE MATTER, AS DISCLOSED BY THE MEMORANDUM, ARE SET FORTH BELOW.

OFFICERS AND EMPLOYEES OF THE PUBLIC HEALTH SERVICE, BOTH COMMISSIONED OFFICERS OF THE PHS COMMISSIONED CORPS AND CIVIL SERVICE EMPLOYEES, MAY BE DETAILED TO STATE OR LOCAL HEALTH AGENCIES UNDER THE AUTHORITY OF 42 U.S.C. 215 AND 246 (F), THE LATTER SECTION AS AMENDED BY SECTION 3 OF THE COMPREHENSIVE HEALTH PLANNING AND PUBLIC HEALTH SERVICE AMENDMENTS OF 1966, PUBLIC LAW 89-749, 80 STAT. 1180, 42 U.S.C. 246. THESE OFFICERS AND EMPLOYEES MAY WORK IN A PROGRAM FINANCED IN WHOLE OR IN PART BY A PHS GRANT OR CONTRACT, OR IN A PROGRAM FINANCED AND DIRECTED WHOLLY BY THE STATE OR LOCAL AGENCY. IN EITHER CASE, WHILE THE PUBLIC HEALTH SERVICE IS AWARE OF THE GENERAL NATURE OF THE STATE OR LOCAL PROGRAM, THE SPECIFIC DUTIES GIVEN THE OFFICERS OR EMPLOYEES ARE DETERMINED BY THE STATE OR LOCAL AGENCY. MEDICAL DOCTORS SO ASSIGNED MAY BE GIVEN DUTIES WHICH, UNDER STATE LAW OR THE POLICIES OF THE AGENCY TO WHICH ASSIGNED, REQUIRE THAT THEY BE LICENSED TO PRACTICE MEDICINE IN THE STATE TO WHICH THEY ARE ASSIGNED.

IN MANY CASES THE DETAILED DOCTOR IS ALREADY LICENSED TO PRACTICE IN ANOTHER STATE AND (IF A MEMBER OF THE COMMISSIONED CORPS FULFILLING HIS MILITARY OBLIGATION) MAY INTEND TO PRACTICE IN THE STATE IN WHICH HE WAS SO FIRST LICENSED, OR (IF A CAREER COMMISSIONED OFFICER OR CIVIL SERVICE EMPLOYEE) MAY NOT INTEND TO PRACTICE PRIVATELY IN THE IMMEDIATE FUTURE. SUCCESSIVE DETAILS MAY SUBJECT THE DOCTOR TO REPEATED LICENSURE REQUIREMENTS IN THE COURSE OF HIS PUBLIC HEALTH SERVICE CAREER. COMMISSIONED OFFICERS ARE SUBJECT TO ORDERS AND HAVE NO CONTROL OVER THE NATURE OR LOCATION OF THEIR ASSIGNMENTS. THE AVERAGE COST OF SUCH LICENSURE, FOR ONE ALREADY LICENSED, IS $50 TO $100.

IT IS POINTED OUT IN THE MEMORANDUM THAT IN SEVERAL DECISIONS WE HAVE DISALLOWED PAYMENT OF STATE LICENSE FEES FROM APPROPRIATED FUNDS ON TWO INDEPENDENT GROUNDS: (1) THAT THE STATE MAY NOT LAWFULLY REQUIRE A LICENSE, UNDER JOHNSON V. MARYLAND, 254, U.S. 51 (1920), AND (2) THAT EVEN IF THE LICENSE REQUIREMENTS IS LAWFUL THE EMPLOYEE MUST BEAR THE EXPENSE OF QUALIFYING FOR HIS POSITION. 3 COMP. GEN. 663; 6 ID. 432; 31 ID. 81.

YOUR DEPARTMENT AGREES THAT APPROPRIATED FUNDS MAY NOT BE USED TO PURCHASE A LICENSE WHICH THE UNITED STATES SUPREME COURT HAS RULED THE STATES MAY NOT LAWFULLY REQUIRE. IT IS POINTED OUT IN THE MEMORANDUM THAT IN THE CASE OF PHS DETAILED MEDICAL PERSONNEL, HOWEVER, OFFICERS AND EMPLOYEES OF THE PUBLIC HEALTH SERVICE ASSIGNED TO STATE OR LOCAL HEALTH AGENCIES WORK UNDER WHOLLY NON-FEDERAL SUPERVISION. THE VIEW IS EXPRESSED THEREIN THAT IN THESE CASES THE DOCTRINE OF JOHNSON V. MARYLAND DOES NOT SEEM APPLICABLE BECAUSE, WHEN AN EMPLOYEE IS PRIMARILY ENGAGED IN CARRYING OUT A STATE FUNCTION, THE LICENSURE REQUIREMENT CANNOT BE SAID TO BURDEN THE PERFORMANCE OF A FEDERAL FUNCTION.

IT IS STATED IN THE MEMORANDUM THAT WHILE THERE REMAINS THE RULE THAT AN EMPLOYEE MUST BEAR THE EXPENSE OF QUALIFYING FOR HIS POSITION, THIS RULE DATES BACK AT LEAST TO 1913 (66 M.S. COMP. DEC. 247), AND THAT YOUR DEPARTMENT HAS FOUND ONLY ONE DECISION APPLYING IT TO A PROPOSED PURCHASE OF A LICENSE WHERE THERE WAS NOT THE ADDITIONAL OBJECTION THAT THE LICENSE CONSTITUTED A STATE-IMPOSED BURDEN ON THE PERFORMANCE OF A FEDERAL FUNCTION, NAMELY, 22 COMP. GEN. 460.

YOUR DEPARTMENT DOES NOT QUESTION THE RULE AN EMPLOYEE MUST BEAR THE EXPENSES OF QUALIFYING FOR EMPLOYMENT THAT HE SEEKS. IT DOES QUESTION THE REQUIREMENT THAT, AFTER MEETING THE INITIAL QUALIFICATIONS FOR EMPLOYMENT, HE MUST BEAR THE EXPENSE OF OBTAINING A LICENSE REQUIRED AS A RESULT OF AN ASSIGNMENT INITIATED BY THE GOVERNMENT AND AS TO WHICH THE EMPLOYEE MAY HAVE NO CHOICE. YOUR DEPARTMENT FEELS THAT THE RULE THAT AN EMPLOYEE MUST BEAR THE EXPENSE OF QUALIFYING FOR HIS POSITION SHOULD NOT BE APPLICABLE TO MEDICAL PERSONNEL WHO HAVE MET THE INITIAL QUALIFICATIONS FOR EMPLOYMENT, IN LIGHT OF THE FOLLOWING:

(1) NO DECISION OF THE COMPTROLLER GENERAL HAS, BY ITS TERMS, APPLIED THE RULE TO DETAILED EMPLOYEES. THE RULE, AS NOTED ABOVE, HAS BEEN REPEATED UNCHANGED SINCE AT LEAST 1913. THE PRESENT CONGRESSIONAL INTENT TO FACILITATE THE INTERCHANGE OF PERSONNEL WITH THE STATES, EXPRESSED IN 20 U.S.C. SEC. 867 (C) AND P.L. 89-749 (AMENDING 42 U.S.C. SEC. 246 (F) (, COULD NOT HAVE BEEN FORESEEN IN 1913. WHILE THE RULE HAS BEEN FOLLOWED SINCE 1913, WITHOUT ANY RE EVALUATION IN LIGHT OF CHANGING CIRCUMSTANCES, IT DOES NOT SEEM PROPERLY APPLICABLE TO AN EMPLOYEE WHO HAS BEEN, OR WHO MAY BE, DETAILED MORE THAN ONCE AND THEREBY SUBJECTED TO MULTIPLE LICENSURE REQUIREMENTS.

(2) THIS RULE APPEARS INCONSISTENT WITH THE PRESENT RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND ITS EMPLOYEES. THE FEDERAL GOVERNMENT MAY NOW PAY THE COST OF TRAINING ITS EMPLOYEES UNDER THE GOVERNMENT EMPLOYEES TRAINING ACT, 5 U.S.C. SECS. 4101-4118; AND THE CIVIL SERVICE COMMISSION OFFERS A WIDE VARIETY OF TRAINING PROGRAMS AIMED AT IMPROVING EMPLOYEES' JOB PERFORMANCE AND PREPARING THEM FOR MORE RESPONSIBLE POSITIONS. THE TRAINING THUS RECEIVED BENEFITS THE EMPLOYEE AS WELL AS THE GOVERNMENT. DETAILS MAY ALSO BENEFIT THE EMPLOYEE, BUT THE LICENSE REQUIRED OF A DETAILED EMPLOYEE IN MANY CASES IS OF LITTLE OR NO VALUE TO HIM.

(3) AS APPLIED TO PERSONNEL ASSIGNED TO THE STATES, THE RULE MAY IMPEDE GETTING THE MAXIMUM BENEFIT OF THE FEDERAL-STATE INTERCHANGE PROGRAM, ESTABLISHED BY P.L. 89-749, WHICH IS INTENDED TO FACILITATE ASSIGNMENT OF QUALIFIED PERSONNEL TO THE STATES. A PERSON CONTEMPLATING ACCEPTING A POSITION IN THE PUBLIC HEALTH SERVICE, FROM WHICH HE MAY BE ASSIGNED TO WORK WITH STATE AGENCIES, MAY BE DETERRED FROM ACCEPTING THAT POSITION BY THE KNOWLEDGE THAT HE WILL REPEATEDLY BE EXPECTED TO PAY FOR LICENSURE WHICH IS OF NO PERSONAL BENEFIT.

WHILE IT MAY BE THAT THE DOCTRINE OF JOHNSON V. MARYLAND IS NOT APPLICABLE WHEN A FEDERAL EMPLOYEE IS PRIMARILY ENGAGED IN CARRYING OUT A STATE FUNCTION, IT IS OUR VIEW THAT FEDERAL FUNDS WOULD NOT BE AVAILABLE TO PAY LICENSE FEES IMPOSED BY A STATE ON A FEDERAL EMPLOYEE DETAILED TO CARRY OUT PRIMARILY STATE FUNCTIONS (FOR THE STATE IMPOSING THE FEE), ABSENT SPECIFIC STATUTORY AUTHORITY AUTHORIZING THE USE OF FEDERAL MONEY TO PAY SUCH FEES.

SECTION 215, TITLE 42, U.S.C. PROVIDES, IN PERTINENT PART, THAT:

(B) UPON THE REQUEST OF ANY STATE HEALTH AUTHORITY OR, IN THE CASE OF WORK RELATING TO MENTAL HEALTH, ANY STATE MENTAL HEALTH AUTHORITY, PERSONNEL OF THE SERVICE MAY BE DETAILED BY THE SURGEON GENERAL FOR THE PURPOSE OF ASSISTING SUCH STATE OR A POLITICAL SUBDIVISION THEREOF IN WORK RELATED TO THE FUNCTIONS OF THE SERVICE.

(D) PERSONNEL DETAILED UNDER SUBSECTIONS (B) AND (C) OF THIS SECTION SHALL BE PAID FROM APPLICABLE APPROPRIATIONS OF THE SERVICE, EXCEPT THAT, IN ACCORDANCE WITH REGULATIONS SUCH PERSONNEL MAY BE PLACED ON LEAVE WITHOUT PAY AND PAID BY THE STATE, SUBDIVISION, OR INSTITUTION TO WHICH THEY ARE DETAILED. THE SERVICES OF PERSONNEL WHILE DETAILED PURSUANT TO THIS SECTION SHALL BE CONSIDERED AS HAVING BEEN PERFORMED IN THE SERVICE FOR PURPOSES OF THE COMPUTATION OF BASIC PAY, PROMOTION, RETIREMENT, COMPENSATION FOR INJURY OR DEATH, AND THE BENEFITS PROVIDED BY SECTION 213 OF THIS TITLE. SECTION 314 (F) OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED BY PUBLIC LAW 89-749 (42 U.S.C. 246 (F) (, READS, IN PART, AS FOLLOWS:

(2) THE SECRETARY IS AUTHORIZED, THROUGH AGREEMENTS OR OTHERWISE, TO ARRANGE FOR ASSIGNMENT OF OFFICERS AND EMPLOYEES OF STATES TO THE DEPARTMENT AND ASSIGNMENT TO STATES OF OFFICERS AND EMPLOYEES IN THE DEPARTMENT ENGAGED IN WORK RELATED TO HEALTH, FOR WORK WHICH THE SECRETARY DETERMINES WILL AID THE DEPARTMENT IN MORE EFFECTIVE DISCHARGE OF ITS RESPONSIBILITIES IN THE FIELD OF HEALTH AS AUTHORIZED BY LAW, INCLUDING COOPERATION WITH STATES AND THE PROVISION OF TECHNICAL OR OTHER ASSISTANCE. THE PERIOD OF ASSIGNMENT OF ANY OFFICER OR EMPLOYEE UNDER AN ARRANGEMENT SHALL NOT EXCEED TWO YEARS.

SECTION 215 (D) OF TITLE 42, U.S.C. SPECIFICALLY PROVIDES THAT APPROPRIATED FUNDS MAY BE USED TO PAY PERSONNEL DETAILED UNDER SUBSECTION (B), AND THAT THE SERVICES OF SUCH PERSONNEL SHALL BE CONSIDERED AS HAVING BEEN PERFORMED IN THE SERVICE FOR PURPOSES OF THE COMPUTATION OF BASIC PAY, PROMOTION, RETIREMENT, COMPENSATION FOR INJURY OR DEATH AND CERTAIN OTHER BENEFITS. HOWEVER, SECTION 215 DOES NOT AUTHORIZE THE USE OF FEDERAL FUNDS TO PAY FOR STATE LICENSES FOR PHS DOCTORS DETAILED TO A STATE AT ITS REQUEST TO ASSIST SUCH STATE IN HEALTH WORK.

FURTHER, WHERE PUBLIC HEALTH SERVICE MEDICAL PERSONNEL ARE DETAILED TO ASSIST A STATE (OR POLITICAL SUBDIVISION THEREOF), AT THE REQUEST OF SUCH STATE PURSUANT TO 42 U.S.C. 215 (B), WE DO NOT BELIEVE THE BURDEN SHOULD BE PLACED ON EITHER THE FEDERAL GOVERNMENT OR ITS PERSONNEL TO PAY FOR STATE LICENSES FOR SUCH MEDICAL PERSONNEL TO ENABLE THEM TO PRACTICE MEDICINE IN THE STATE REQUESTING THE ASSISTANCE, EVEN THOUGH THE WORK INVOLVED IS RELATED TO THE FUNCTIONS OF THE PUBLIC HEALTH SERVICE.

AS A CONDITION TO DETAILING PHS MEDICAL PERSONNEL TO ASSIST A STATE AT ITS REQUEST UNDER 42 U.S.C. 215, IT IS SUGGESTED THAT THE SURGEON GENERAL MIGHT EITHER REQUIRE THE STATE TO ISSUE TEMPORARY LICENSES WITHOUT CHARGE TO SUCH PERSONNEL TO BE VALID FOR THE PERIOD OF THE DETAIL, OR TO REQUIRE THAT THE STATE OR POLITICAL SUBDIVISION AGREE TO PAY THE COST OF ANY LICENSE THAT MIGHT BE REQUIRED TO ENABLE THE PHS PERSONNEL TO ASSIST SUCH STATE OR POLITICAL SUBDIVISION.

AS TO 42 U.S.C. 246 (F), AS AMENDED BY PUBLIC LAW 89-749, WE NOTE THAT DETAILED PROVISIONS ARE SET FORTH THEREIN CONCERNING COMPENSATION, LEAVE AND OTHER BENEFITS, AND REIMBURSEMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF PERSONNEL SO ASSIGNED. IT IS A GENERAL RULE OF STATUTORY INTERPRETATION THAT WHERE PERSONS AND THINGS TO WHICH A STATUTE REFER ARE AFFIRMATIVELY OR NEGATIVELY DESIGNATED, THERE IS AN INFERENCE THAT ALL OMISSIONS WERE INTENDED BY THE LEGISLATURE. SEE SECTION 4915, SUTHERLAND STATUTORY CONSTRUCTION, THIRD EDITION. SINCE THE CONGRESS SPECIFICALLY SET FORTH IN DETAIL IN PUBLIC LAW 89-749 THE COSTS WHICH COULD BE PAID OUT OF YOUR DEPARTMENT'S APPROPRIATIONS INCIDENT TO THE ASSIGNMENT OF PUBLIC HEALTH SERVICE PERSONNEL TO A STATE PURSUANT TO 42 U.S.C. 246 (F), AND DID NOT INCLUDE THE COST OF STATE LICENSES WHICH THE STATE MIGHT REQUIRE OF SUCH PERSONNEL, YOUR DEPARTMENT'S APPROPRIATIONS WOULD NOT BE AVAILABLE FOR SUCH PURPOSE.

FURTHER, EVEN IF THE LAST CITED CODE PROVISION DID NOT SET FORTH IN DETAIL THE EXPENSES WHICH COULD BE PAID FROM FEDERAL FUNDS INCIDENT TO ASSIGNING OR DETAILING FEDERAL EMPLOYEES TO WORK WITH STATES OR POLITICAL SUBDIVISIONS THEREOF, IT IS OUR SUGGESTION--- AS INDICATED ABOVE IN CONNECTION WITH 42 U.S.C. 215--- THAT THE SURGEON GENERAL, IN THE AGREEMENT INVOLVED, OR OTHERWISE, SHOULD REQUIRE THAT ANY STATE MEDICAL LICENSES REQUIRED OF SUCH PERSONNEL BY THE STATE FOR THE PERIOD OF THE ASSIGNMENT SHOULD BE FURNISHED WITHOUT COST TO EITHER THE FEDERAL EMPLOYEE SO ASSIGNED OR THE UNITED STATES. ACCORDINGLY, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, YOUR DEPARTMENT'S APPROPRIATION MAY NOT BE USED TO PAY FOR STATE LICENSES FOR PUBLIC HEALTH SERVICE EMPLOYEES DETAILED OR ASSIGNED TO STATES OR LOCAL HEALTH AGENCIES PURSUANT TO 42 U.S.C. 215 OR 42 U.S.C. 246 (F), AS AMENDED BY PUBLIC LAW 89-749.