B-161150, JUNE 8, 1967, 46 COMP. GEN. 834

B-161150: Jun 8, 1967

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE SURVIVORS OF DECEASED ACTIVE DUTY OR RETIRED MEMBERS WHO LIVE OUTSIDE THE UNITED STATES AND BECOME ENTITLED TO HOSPITAL INSURANCE BENEFITS UNDER THE SOCIAL SECURITY MEDICARE PROGRAM UPON REACHING AGE 65 ARE SUBJECT TO THE PROHIBITION IN 10 U.S.C. 1086 (C). REGULATIONS IMPLEMENTING THE MILITARY HEALTH PROGRAM MAY NOT INCLUDE MILITARY RETIREES AND THEIR DEPENDENTS WHO ARE ELIGIBLE FOR SOCIAL SECURITY MEDICARE AT AGE 65. 1967: FURTHER REFERENCE IS MADE TO LETTER DATED MARCH 25. THAT THE SPECIFIC QUESTION IS WHETHER RETIRED MEMBERS OF THE UNIFORMED SERVICES WHO ARE 65 YEARS OF AGE OR OVER AND WHO LIVE OUTSIDE THE UNITED STATES ARE ENTITLED TO HOSPITAL INSURANCE BENEFITS UNDER SOCIAL SECURITY MEDICARE WITHIN THE MEANING OF 10 U.S.C. 1086 (C).

B-161150, JUNE 8, 1967, 46 COMP. GEN. 834

MEDICAL TREATMENT - MILITARY PERSONNEL - RETIRED - MEDICARE V. MILITARY HEALTH BENEFITS RETIRED MEMBERS OF THE UNIFORMED SERVICES, THEIR DEPENDENTS, AND THE SURVIVORS OF DECEASED ACTIVE DUTY OR RETIRED MEMBERS WHO LIVE OUTSIDE THE UNITED STATES AND BECOME ENTITLED TO HOSPITAL INSURANCE BENEFITS UNDER THE SOCIAL SECURITY MEDICARE PROGRAM UPON REACHING AGE 65 ARE SUBJECT TO THE PROHIBITION IN 10 U.S.C. 1086 (C), WHICH EXCLUDES PERSONS ENTITLED TO MEDICARE FROM ELIGIBILITY TO RECEIVE THE CIVILIAN HOSPITAL BENEFITS PROVIDED UNDER THE UNIFORMED SERVICES HEALTH BENEFITS PROGRAM PRESCRIBED BY THE MILITARY MEDICAL BENEFITS AMENDMENTS OF 1966, REGARDLESS OF AGE, THE 1966 ACT MAKING NO DISTINCTION BETWEEN THOSE LIVING WITHIN OR OUTSIDE THE UNITED STATES. THEREFORE, REGULATIONS IMPLEMENTING THE MILITARY HEALTH PROGRAM MAY NOT INCLUDE MILITARY RETIREES AND THEIR DEPENDENTS WHO ARE ELIGIBLE FOR SOCIAL SECURITY MEDICARE AT AGE 65, WHETHER LIVING WITHIN OR OUTSIDE THE UNITED STATES.

TO THE SECRETARY OF DEFENSE, JUNE 8, 1967:

FURTHER REFERENCE IS MADE TO LETTER DATED MARCH 25, 1967, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING OUR DECISION ON A QUESTION WHICH THE DEPARTMENT OF DEFENSE HAS ENCOUNTERED IN IMPLEMENTING THE PROVISIONS OF THE "MILITARY MEDICAL BENEFITS AMENDMENTS OF 1966," PUBLIC LAW 89-614, APPROVED SEPTEMBER 30, 1966.

THE ASSISTANT SECRETARY STATES, IN SUBSTANCE, THAT THE SPECIFIC QUESTION IS WHETHER RETIRED MEMBERS OF THE UNIFORMED SERVICES WHO ARE 65 YEARS OF AGE OR OVER AND WHO LIVE OUTSIDE THE UNITED STATES ARE ENTITLED TO HOSPITAL INSURANCE BENEFITS UNDER SOCIAL SECURITY MEDICARE WITHIN THE MEANING OF 10 U.S.C. 1086 (C), AS ADDED BY PUBLIC LAW 89 614, OR WHETHER THEY WOULD CONTINUE TO BE ENTITLED TO RECEIVE CIVILIAN HOSPITAL BENEFITS UNDER THE UNIFORMED SERVICES HEALTH BENEFITS PROGRAM AS PROVIDED IN THE 1966 ACT REGARDLESS OF AGE. THIS PROBLEM, IT IS STATED, ALSO EXISTS WITH RESPECT TO DEPENDENTS OF RETIRED MEMBERS AND THE SURVIVORS OF DECEASED ACTIVE DUTY OR RETIRED MEMBERS IN IDENTICAL CIRCUMSTANCES.

IT IS STATED THAT DOUBT IN THIS MATTER STEMS FROM THE LANGUAGE IN SECTION 226 (B) (1) OF TITLE II OF THE SOCIAL SECURITY ACT, AS ADDED BY SECTION 101 (TITLE I) OF PUBLIC LAW 89-97, APPROVED JULY 30, 1965, 79STAT. 290, 42 U.S.C. 426, WHICH RELATES TO HOSPITAL INSURANCE BENEFITS UNDER SOCIAL SECURITY AND WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(1) ENTITLEMENT OF AN INDIVIDUAL TO HOSPITAL INSURANCE BENEFITS FOR A MONTH SHALL CONSIST OF ENTITLEMENT TO HAVE PAYMENT MADE UNDER, AND SUBJECT TO THE LIMITATIONS IN, PART A OF TITLE XVIII ON HIS BEHALF FOR INPATIENT HOSPITAL SERVICES, POST-HOSPITAL EXTENDED CARE SERVICES, POST HOSPITAL HOME HEALTH SERVICES, AND OUTPATIENT HOSPITAL DIAGNOSTIC SERVICES (AS SUCH TERMS ARE DEFINED IN PART C OF TITLE XVIII) FURNISHED HIM IN THE UNITED STATES (OR OUTSIDE THE UNITED STATES IN THE CASE OF INPATIENT HOSPITAL SERVICES FURNISHED UNDER THE CONDITIONS DESCRIBED IN SECTION 1814 (F) ( DURING SUCH MONTH * * * TITLE I OF PUBLIC LAW 89 97 ALSO ADDED A NEW TITLE XVIII TO THE SOCIAL SECURITY ACT AND SECTION 1814 (F), 79 STAT. 297, 42 U.S.C. 1395F (F), IN THAT TITLE PROVIDES:

(F) THE AUTHORITY CONTAINED IN SUBSECTION (D) SHALL BE APPLICABLE TO EMERGENCY INPATIENT HOSPITAL SERVICE FURNISHED AN INDIVIDUAL BY A HOSPITAL LOCATED OUTSIDE THE UNITED STATES IF---

(1) SUCH INDIVIDUAL WAS PHYSICALLY PRESENT IN A PLACE WITHIN THE UNITED STATES AT THE TIME THE EMERGENCY WHICH NECESSITATED SUCH INPATIENT HOSPITAL SERVICES OCCURRED; AND

(2) SUCH HOSPITAL WAS CLOSER TO, OR SUBSTANTIALLY MORE ACCESSIBLE FROM, SUCH PLACE THAN THE NEAREST HOSPITAL WITHIN THE UNITED STATES WHICH WAS ADEQUATELY EQUIPPED TO DEAL WITH, AND WAS AVAILABLE FOR THE TREATMENT OF, SUCH INDIVIDUAL'S ILLNESS OR INJURY. IN ADDITION, THE NEW TITLE XVIII CONTAINS SECTION 1862 (A) (4), 79 STAT. 325, 42 U.S.C. 1395Y (4), WHICH PRECLUDES PAYMENT FOR ANY EXPENSES INCURRED FOR ITEMS OR SERVICES "WHICH ARE NOT PROVIDED WITHIN THE UNITED STATES (EXCEPT FOR EMERGENCY INPATIENT HOSPITAL SERVICES FURNISHED OUTSIDE THE UNITED STATES UNDER THE CONDITIONS DESCRIBED IN SECTION 1814 (F) ).'

IN THE LIGHT OF THE ABOVE LANGUAGE, IT IS STATED THAT WITH MINOR EXCEPTIONS INVOLVING EMERGENCY CARE UNDER VERY LIMITED CIRCUMSTANCES HOSPITAL INSURANCE BENEFITS UNDER TITLE I OF THE SOCIAL SECURITY AMENDMENTS OF 1965 ARE LIMITED, UNDER THE PROVISIONS OF SECTION 226 (B) OF THE SOCIAL SECURITY ACT, TO BENEFITS OBTAINED IN THE UNITED STATES.

PROVISIONS RELATING TO MEDICAL BENEFITS FOR RETIRED MEMBERS OF THE UNIFORMED SERVICES AND THEIR DEPENDENTS ARE CONTAINED IN CHAPTER 55 OF TITLE 10, UNITED STATES CODE. SECTION 1086 (C) OF THAT CHAPTER, AS ADDED BY PUBLIC LAW 89-614, APPROVED SEPTEMBER 30, 1966, 80 STAT. 865, AUTHORIZED CERTAIN CIVILIAN MEDICAL SERVICES AT GOVERNMENT EXPENSE FOR MILITARY RETIREES AND THEIR DEPENDENTS, INCLUDING DEPENDENTS OF DECEASED RETIREES AND ACTIVE DUTY MEMBERS. A PERSON ELIGIBLE UNDER SECTION 1086 (C), HOWEVER, IS SUBJECT TO THE PROHIBITION CONTAINED IN THAT SECTION WHICH PROVIDES THAT "A PERSON WHO IS ENTITLED TO HOSPITAL INSURANCE BENEFITS UNDER TITLE I OF THE SOCIAL SECURITY AMENDMENTS OF 1965 (79 STAT. 286) IS NOT ELIGIBLE FOR HEALTH BENEFITS UNDER THIS TION.' REGULATIONS IMPLEMENTING CHAPTER 55 OF TITLE 10 ARE CONTAINED IN DEPARTMENT OF DEFENSE --- HEALTH, EDUCATION AND WELFARE JOINT DIRECTIVE DATED APRIL 25, 1962 (DEPARTMENT OF DEFENSE DIRECTIVE 6010.4) AND FURTHER IMPLEMENTED BY AR 40- 121/SECNAVINST 6320.8C) AFR 168-9/PHS GEN. CIR. NO. 6/CGCOMDTINST 6320.2A DATED FEBRUARY 13, 1967.

THE VIEW IS EXPRESSED THAT THE PURPOSE OF THE PROVISION IN SECTION 1086 (C) IS TO LIMIT THE COVERED PERSONS TO BENEFITS UNDER ONE GOVERNMENT- SPONSORED CIVILIAN HEALTH PROGRAM, AND THAT SUCH PROVISION WAS NOT INTENDED TO DENY PERSONS, SUCH AS THOSE DESCRIBED ABOVE, BENEFITS UNDER BOTH OF THE GOVERNMENT-SPONSORED CIVILIAN HEALTH CARE PROGRAMS. THE ASSISTANT SECRETARY ASKS WHETHER IT WOULD BE LEGALLY PERMISSIBLE TO ADMINISTRATIVELY PRESCRIBE IN THE REGULATIONS JOINTLY ISSUED BY THE SECRETARY OF DEFENSE AND THE SECRETARY OF HEALTH, EDUCATION AND WELFARE, PURSUANT TO SEVERAL APPLICABLE SECTIONS OF CHAPTER 55 OF TITLE 10, THE FOLLOWING:

--- THE PERSONS DESCRIBED IN THE FIRST PARAGRAPH ABOVE ARE NOT ENTITLED TO HOSPITAL INSURANCE BENEFITS UNDER SOCIAL SECURITY OUTSIDE THE UNITED STATES (OTHER THAN UNDER THE LIMITED CIRCUMSTANCES COVERED BY SECTION 1814 (F) OF THE SOCIAL SECURITY ACT); AND

--- THEREFORE SUCH PERSONS REMAIN ELIGIBLE FOR THE BENEFITS AUTHORIZED BY SECTION 1086 (A) OF TITLE 10 (OTHER THAN THOSE OF THE TYPE COVERED BY SECTION 1814 (F) OF THE SOCIAL SECURITY ACT).

MILITARY PERSONNEL HAVE BEEN UNDER SOCIAL SECURITY COVERAGE SINCE 1957. THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-614 INDICATES THAT, WITH RESPECT TO MILITARY RETIREES AND THEIR DEPENDENTS WHO BECAME ELIGIBLE FOR SOCIAL SECURITY MEDICARE AT AGE 65, THE PRIMARY PURPOSE OF THE PROHIBITION IN SECTION 1086 (C) OF TITLE 10, WAS TO LIMIT THE HEALTH BENEFITS TO ONE PROGRAM, NAMELY, SOCIAL SECURITY MEDICARE PROGRAM, UPON REACHING AGE 65.

CONCERNING THE MATTER OF WHETHER A MILITARY RETIREE OR HIS DEPENDENT IS A PERSON ENTITLED TO HOSPITAL INSURANCE BENEFITS "UNDER TITLE I OF THE SOCIAL SECURITY AMENDMENTS OF 1965" AS PROVIDED IN 10 U.S.C. 1086 (C), SUBSECTION (A) OF SECTION 226 OF THE ABOVE MENTIONED SOCIAL SECURITY ACT AS ADDED BY SECTION 101 OF PUBLIC LAW 89-97, PROVIDES AS FOLLOWS:

(A) EVERY INDIVIDUAL WHO---

(1) HAS ATTAINED THE AGE OF 65, AND

(2) IS ENTITLED TO MONTHLY INSURANCE BENEFITS UNDER SECTION 202 OR IS A QUALIFIED RAILROAD RETIREMENT BENEFICIARY, SHALL BE ENTITLED TO HOSPITAL INSURANCE BENEFITS UNDER PART A OF TITLE XVIII FOR EACH MONTH FOR WHICH HE MEETS THE CONDITION SPECIFIED IN PARAGRAPH (2), BEGINNING WITH THE FIRST MONTH AFTER JUNE 1966 FOR WHICH HE MEETS THE CONDITIONS SPECIFIED IN PARAGRAPHS (1) AND (2). SINCE SUCH PROVISIONS OF LAW ARE APPLICABLE TO "EVERY INDIVIDUAL" WHO MEETS THE PRESCRIBED CONDITIONS, IT WOULD NECESSARILY FOLLOW THAT EACH PERSON WHO MEETS SUCH CONDITIONS WOULD BE COVERED UNDER THE SOCIAL SECURITY MEDICARE PROGRAM AND THUS WOULD BE SUBJECT TO ALL THE PROVISIONS OF THAT LAW, INCLUDING THE ABOVE QUOTED PROVISIONS OF SECTIONS 226 (B) AND 1814 (F). WE ASSUME THAT THE INDIVIDUALS DISCUSSED IN THE SUBMISSION ARE IN THIS CATEGORY.

AS ORIGINALLY PASSED BY THE HOUSE OF REPRESENTATIVES ON MAY 11, 1966, H.R. 14088, WHICH BECAME PUBLIC LAW 89-614, CONTAINED A SAVINGS CLAUSE IN SECTION 1086 (B/--- NOW SECTION 1086 (C/--- WHICH WOULD HAVE, AS STATED ON PAGE 20 OF H.REPT. NO. 1407 DATED MARCH 31, 1966 (TO ACCOMPANY H.R. 14088) "GUARANTEE/D) THAT MEDICAL CARE BENEFITS PROVIDED ELIGIBLE BENEFICIARIES OF THE UNIFORMED SERVICES SHALL NOT BE DIMINISHED BY VIRTUE OF THEIR TRANSFER TO THE COVERAGE AFFORDED BY THE SOCIAL SECURITY HEALTH INSURANCE PROGRAM.' THE SENATE ARMED SERVICES COMMITTEE, HOWEVER, DELETED THE HOUSE SAVINGS PROVISIONS PROPOSAL (WHICH ACTION WAS APPROVED BY THE CONGRESS IN ENACTING PUBLIC LAW 89 614), FOR THE REASONS STATED ON PAGE 3 OF S.REPT. NO. 1434 DATED AUGUST 5, 1966, AS FOLLOWS:

UNDER THE HOUSE PROPOSAL MILITARY RETIREES AND THEIR DEPENDENTS WHO BECAME ELIGIBLE FOR SOCIAL SECURITY MEDICARE AT AGE 65 WOULD RETAIN THOSE BENEFITS IN CIVILIAN FACILITIES UNDER THIS LEGISLATION THAT WERE NOT COVERED UNDER THE SOCIAL SECURITY MEDICARE PROGRAM. THE EFFECT WOULD BE TO OBTAIN THE BENEFITS OF BOTH PROGRAMS. THE COMMITTEE HAS ADOPTED THE RECOMMENDATION OF THE DEPARTMENT OF DEFENSE PROVIDING THAT THOSE ELIGIBLE FOR SOCIAL SECURITY MEDICARE AT AGE 65 WILL NOT BE ELIGIBLE FOR THE BENEFITS IN CIVILIAN MEDICAL FACILITIES UNDER THIS LEGISLATION. THE DEPARTMENTAL RECOMMENDATION WAS BASED ON THE PREMISE THAT FOR RETIREES, WHO NOW GO ON THE RETIRED LIST AT THE AVERAGE AGE OF 44, THIS LEGISLATION AUTHORIZING NEW BENEFITS FROM CIVILIAN SOURCES WOULD BE A TRANSITIONAL PROGRAM UNTIL THEY REACH AGE 65. THE PRESENT PROGRAM AUTHORIZING THE USE OF MILITARY FACILITIES ON A SPACE-AVAILABLE BASIS WITHOUT REGARD TO AGE WOULD BE CONTINUED. AT AGE 65 THE TWO PROGRAMS--- SOCIAL SECURITY MEDICARE AND THE USE OF MILITARY MEDICAL FACILITIES--- WOULD APPEAR TO BE SUFFICIENT FOR THE RETIRED GROUP.

THE ABOVE LEGISLATIVE HISTORY OF SECTION 1086 (C) OF TITLE 10, LEAVES LITTLE DOUBT THAT CONGRESS INTENDED THAT MILITARY RETIREES AND THEIR DEPENDENTS WOULD TRANSFER FROM THE MILITARY HEALTH PROGRAM AUTHORIZED BY THAT SECTION TO THE SOCIAL SECURITY MEDICARE PROGRAM UPON REACHING AGE 65. WE FIND NOTHING IN THE LEGISLATIVE HISTORY WHICH INDICATES THAT IN CONSIDERING THIS LEGISLATION CONGRESS GAVE ANY THOUGHT TO THE SPECIFIC SITUATION OF SUCH INDIVIDUALS WHO LIVE OUTSIDE THE UNITED STATES. CONSEQUENTLY, THERE IS NOTHING TO SUPPORT THE CONCLUSION THAT IT WAS INTENDED THAT SUCH INDIVIDUALS SHOULD RECEIVE THE MILITARY MEDICAL BENEFITS OF PUBLIC LAW 89-614. SINCE THE MILITARY RETIREES AND THEIR DEPENDENTS HERE INVOLVED ARE ENTITLED TO THE BENEFITS OF, AND ARE SUBJECT TO, THE PROVISIONS OF TITLE I OF THE SOCIAL SECURITY AMENDMENTS OF 1965, THEIR RIGHTS ARE NO GREATER THAN THOSE OF OTHER INDIVIDUALS COVERED BY THE LATTER PROVISIONS OF LAW.

ACCORDINGLY, FOR THE REASONS INDICATED ABOVE, IT IS OUR VIEW THAT IN THE ABSENCE OF SOME STATUTORY AUTHORITY PERMITTING MILITARY RETIREES AND THEIR DEPENDENTS WHO ARE ELIGIBLE FOR SOCIAL SECURITY MEDICARE AT AGE 65 AND WHO LIVE OUTSIDE THE UNITED STATES TO CONTINUE TO RECEIVE HEALTH BENEFITS UNDER THE NEW MILITARY HEALTH PROGRAM (PUBLIC LAW 89 614), THERE IS NO LEGAL BASIS FOR THE ISSUANCE OF THE PROPOSED JOINT REGULATIONS BY THE SECRETARY OF DEFENSE AND THE SECRETARY OF HEALTH, EDUCATION AND WELFARE.