B-161444, AUGUST 4, 1967, 47 COMP. GEN. 89

B-161444: Aug 4, 1967

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ETC. - NURSING HOME CARE THE ADMISSION PURSUANT TO 38 U.S.C. 620 OF A VETERAN INTO A PRIVATE NON- VETERANS ADMINISTRATION MANAGED NURSING HOME THAT IS UNDER CONTRACT WITH THE ADMINISTRATION IMMEDIATELY SUBSEQUENT TO AN APPROVED DISCHARGE FROM THE MAXIMUM HOSPITAL BENEFITS PROVIDED IN A VA HOSPITAL IS TANTAMOUNT TO A TRANSFER WHICH HAS THE EFFECT OF CONTINUOUS HOSPITALIZATION WITHIN THE MEANING OF 38 U.S.C. 3203 (A) (1). THE REDUCTION IN THE RETIRED PAY OF VETERANS PRESCRIBED BY SECTION 3203 (A) (1) IS FOR CONTINUATION. IS NOT AUTHORIZED AT GOVERNMENT EXPENSE. WHETHER THE NURSING HOME HAS ENTERED INTO CONTRACT WITH THE VETERANS ADMINISTRATION OR THE CARE IS FURNISHED AT THE EXPENSE OF THE UNITED STATES.

B-161444, AUGUST 4, 1967, 47 COMP. GEN. 89

PAY - RETIRED - WITHHOLDING - VETERANS ADMINISTRATION CARE AND TREATMENT THE 50 PERCENTUM REDUCTION IN THE RETIRED PAY OF INCOMPETENT MEMBERS OF THE UNIFORMED SERVICES REQUIRED BY 38 U.S.C. 3203 (A) (1) AFTER 6 MONTHS OF VETERANS ADMINISTRATION HOSPITAL CARE CONTINUES UPON DISCHARGE FROM HOSPITALIZATION AFTER RECEIVING THE MAXIMUM HOSPITAL BENEFITS AT A VA HOSPITAL TO ENTER EITHER A CONVALESCENT CENTER OR A PRIVATE NURSING HOME OPERATING UNDER CONTRACT WITH THE ADMINISTRATION, THE CARE GIVEN THE MEMBERS "AT THE EXPENSES OF THE UNITED STATES" COMING WITHIN THE MEANING OF "INSTITUTIONAL OR DOMICILIARY CARE FURNISHED BY THE VETERANS ADMINISTRATION" AS CONTEMPLATED BY SECTION 3203 (A) (1), AND NO RETIRED PAY HAVING BEEN PAID THE MEMBERS DURING THE PERIOD OF CONVALESCENT OR NURSING CARE, PAYMENT OF ONE-HALF THE RETIRED PAY DUE THE INCOMPETENTS MAY BE MADE TO THE PERSONS DESIGNATED TO RECEIVE PAYMENT. VETERANS - HOSPITALIZATION, ETC. - NURSING HOME CARE THE ADMISSION PURSUANT TO 38 U.S.C. 620 OF A VETERAN INTO A PRIVATE NON- VETERANS ADMINISTRATION MANAGED NURSING HOME THAT IS UNDER CONTRACT WITH THE ADMINISTRATION IMMEDIATELY SUBSEQUENT TO AN APPROVED DISCHARGE FROM THE MAXIMUM HOSPITAL BENEFITS PROVIDED IN A VA HOSPITAL IS TANTAMOUNT TO A TRANSFER WHICH HAS THE EFFECT OF CONTINUOUS HOSPITALIZATION WITHIN THE MEANING OF 38 U.S.C. 3203 (A) (1), AND THE REDUCTION IN THE RETIRED PAY OF VETERANS PRESCRIBED BY SECTION 3203 (A) (1) IS FOR CONTINUATION, THE NURSING HOME HAVING ENTERED INTO A VALID CONTRACT WITH THE VETERANS ADMINISTRATION MEETS THE TEST OF A "NURSING HOME" PRESCRIBED IN 38 U.S.C. 620. HOWEVER, 38 U.S.C. 3203 (A) (1) DOES NOT APPLY IF THE NURSING HOME CARE, WHETHER FURNISHED IN A PRIVATE OR PUBLIC NURSING HOME, IS NOT AUTHORIZED AT GOVERNMENT EXPENSE. PAY - RETIRED - WITHHOLDING - VETERANS ADMINISTRATION CARE AND TREATMENT THE ADMISSION OF VETERANS TO A PRIVATE, NON-VETERANS ADMINISTRATION MANAGED NURSING HOME UNDER CONTRACT WITH THE ADMINISTRATION UPON DISCHARGE FROM A VA INSTITUTION AFTER RECEIVING THE MAXIMUM HOSPITAL BENEFITS PRESCRIBED DOES NOT BEGIN A NEW PERIOD OF HOSPITALIZATION FOR THE REDUCTION OF RETIRED PAY PRESCRIBED IN 38 U.S.C. 3203 (A) (1), WHETHER THE NURSING HOME HAS ENTERED INTO CONTRACT WITH THE VETERANS ADMINISTRATION OR THE CARE IS FURNISHED AT THE EXPENSE OF THE UNITED STATES, BOTH SITUATIONS CONTEMPLATING THE FURNISHING OF CONTINUED CARE BY THE ADMINISTRATION. THEREFORE, UPON TRANSFER TO A NURSING HOME, THE HOSPITALIZATION IS CONSIDERED CONTINUOUS AND IS NOT THE BEGINNING OF A NEW PERIOD OF HOSPITALIZATION. GENERAL ACCOUNTING OFFICE - DECISIONS - ADVANCE - DOUBTFUL QUESTIONS THE MILITARY DEPARTMENTS IN MAKING A DETERMINATION REGARDING THE IMPLEMENTATION OF 38 U.S.C. 3203 (A) (1), REQUIRING 50 PERCENTUM REDUCTION IN RETIRED PAY AFTER 6 MONTHS OF CONTINUOUS VETERANS ADMINISTRATION HOSPITALIZATION, AND 38 U.S.C. 620 PROVIDING FOR PUBLIC OR PRIVATE NURSING HOME CARE UNDER CONTRACT OR AT GOVERNMENT EXPENSE UPON DISCHARGE FROM A VA HOSPITAL AFTER RECEIVING THE MAXIMUM PRESCRIBED HOSPITAL BENEFITS, SHOULD FOLLOW WHEN INFORMATION IS INSUFFICIENT, LACKING OR CONTRADICTORY, THE PROCEDURE PRESCRIBED IN 31 U.S.C. 74, WHICH AUTHORIZES DISBURSING OFFICERS OR THE HEAD OF ANY EXECUTIVE DEPARTMENT, OR OTHER ESTABLISHMENT NOT UNDER ANY OF THE EXECUTIVE DEPARTMENTS, TO APPLY FOR A DECISION BY THE COMPTROLLER GENERAL UPON ANY QUESTION INVOLVED IN A PAYMENT TO BE MADE BY THEM OR UNDER THEM.

TO LIEUTENANT COLONEL FRANK BERRISH, DEPARTMENT OF THE ARMY, AUGUST 4, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 10, 1967, AND ENCLOSURES, FORWARDED HERE MAY 2, 1967, UNDER D. O. NUMBER A-952 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTING DECISION WHETHER, IN THE CIRCUMSTANCES STATED BELOW, PAYMENT OF RETIRED PAY WHICH HAS BEEN WITHHELD IS PROPER IN THE CASES OF FIRST SERGEANT * * *, AND SECOND LIEUTENANT * * *, BOTH RETIRED INCOMPETENT MEMBERS OF THE ARMY.

SERGEANT * * * WAS RETIRED ON JULY 31, 1946, UNDER THE PROVISIONS OF SECTION 4, ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 539, WITH OVER 20 YEARS OF MILITARY SERVICE. IN THE MONTH OF FEBRUARY 1965 HE WAS HOSPITALIZED IN A VETERANS ADMINISTRATION HOSPITAL AND SUBSEQUENTLY WAS DECLARED TO BE INCOMPETENT TO MANAGE HIS FINANCIAL AFFAIRS. HIS RETIRED PAY WAS REDUCED BY 50 PER CENTUM AS REQUIRED BY 38 U.S.C. 3203/A) (1) COMMENCING THE FIRST DAY OF THE SEVENTH CALENDAR MONTH FOLLOWING THE MONTH OF HIS ADMISSION TO A VETERANS ADMINISTRATION HOSPITAL.

HE WAS DISCHARGED FROM THE VETERANS ADMINISTRATION HOSPITAL * * *, HAVING RECEIVED MAXIMUM HOSPITAL BENEFITS. AS STATED IN PARAGRAPH 2, LETTER OF APRIL 10, 1967, HE WAS DISCHARGED "FOR PURPOSE OF BEING ADMITTED TO A PRIVATE, NON-VETERANS ADMINISTRATION-MANAGED NURSING HOME," I.E., * * *. HE RECEIVED NURSING HOME CARE AT THAT PLACE FROM JULY 12, 1966, THROUGH DECEMBER 31, 1966, AND ON JANUARY 1, 1967, HE WAS READMITTED TO THE VETERANS ADMINISTRATION HOSPITAL * * *.

SECOND LIEUTENANT * * * WAS RETIRED DECEMBER 31, 1945, FOR DISABILITY UNDER AUTHORITY OF ACT OF JUNE 20, 1930, CH. 554, 46 STAT. 790. SHE WAS TRANSFERRED TO * * * HOSPITAL, * * *, AS AN INCOMPETENT PERSON AND THEREAFTER SHE WAS PLACED IN THE VETERANS ADMINISTRATION HOSPITAL * * *. AFTER SIX MONTHS OF CONTINUOUS VETERANS ADMINISTRATION HOSPITALIZATION HER RETIRED PAY WAS REDUCED BY 50 PER CENTUM AS REQUIRED BY 38 U.S.C. 3203/A) (1).

IT APPEARS THAT SHE WAS DISCHARGED FROM THE VETERANS ADMINISTRATION HOSPITAL * * *, AFTER HAVING RECEIVED MAXIMUM HOSPITAL BENEFITS, FOR THE PURPOSE "OF BEING ADMITTED TO A PRIVATE, VETERANS ADMINISTRATION CONTRACT HOME.' THE RECORD FURTHER INDICATES THAT SHE RECEIVED NURSING HOME CARE AT * * *, AT VETERANS ADMINISTRATION EXPENSE FROM MARCH 10, 1966, TO SEPTEMBER 8, 1966, INCLUSIVE. IT IS STATED THAT SHE WAS THEN "TRANSFERRED TO A PUBLIC NON-CONTRACT NURSING HOME AT HER OWN EXPENSE.' A COMPLETE WAIVER OF HER RETIRED PAY IN FAVOR OF COMPENSATION FROM THE VETERANS ADMINISTRATION BECAME EFFECTIVE FEBRUARY 1, 1967.

IN PARAGRAPH 10, LETTER OF APRIL 10, 1967, IT IS STATED THAT YOUR OFFICE WAS INFORMED BY THE VETERANS ADMINISTRATION HOSPITAL, * * *, THAT WHEN DISCHARGED WITH MAXIMUM HOSPITAL BENEFITS FROM THAT HOSPITAL AND TRANSFERRED TO * * *, SERGENAT * * * "BECAME ELIGIBLE TO RECEIVE FULL RETIRED PAY" AND THAT THE PROVISIONS OF 38 U.S.C. 3203/A) (1) WERE NOT APPLICABLE TO THE PERIOD THAT HE RECEIVED NURSING HOME CARE IN THE * * * CONVALESCENT CENTER. ON THE OTHER HAND, YOU WERE ADVISED BY THE VETERANS ADMINISTRATION REGIONAL OFFICE, CHICAGO, ILLINOIS, THAT THE PROVISIONS OF SECTION 3203/A) (1) WERE APPLICABLE DURING THE PERIOD THAT LIEUTENANT * * * RECEIVED NURSING HOME CARE AT VETERANS ADMINISTRATION EXPENSE IN THE * * * NURSING HOME, * * *. APPARENTLY, NO RETIRED PAY WAS PAID DURING THE PERIODS SERGEANT * * * AND LIEUTENANT * * * RECEIVED NURSING HOME CARE AT GOVERNMENT EXPENSE AS INDICATED ABOVE.

THE FIRST SENTENCE IN PARAGRAPH 11, LETTER OF APRIL 10, 1967, IS AS FOLLOWS:

"THE TWO CASES AT HAND APPEAR TO BE IDENTICAL EXCEPT THAT LIEUTENANT * * * WAS DISCHARGED WITH MAXIMUM HOSPITAL BENEFITS FOR THE PURPOSE OF ENTERING A PRIVATE NURSING HOME, UNDER CONTRACT TO THE VETERANS ADMINISTRATION; WHEREAS SERGEANT * * * WAS DISCHARGED FOR THE PURPOSE OF ENTERING A PRIVATE NURSING HOME NOT UNDER CONTRACT TO, NOR UNDER DIRECT AND EXCLUSIVE JURISDICTION OF THE VETERANS ADMINISTRATION.'

UNDER THE CONDITIONS THEREIN PRESCRIBED SECTION 620, TITLE 38, U.S. CODE, AUTHORIZES THE ADMINISTRATOR OF VETERANS' AFFAIRS TO

"TRANSFER ANY VETERAN, WHO HAS BEEN FURNISHED CARE BY THE ADMINISTRATOR IN A HOSPITAL UNDER THE DIRECT AND EXCLUSIVE JURISDICTION OF THE ADMINISTRATOR, TO ANY PUBLIC OR PRIVATE INSTITUTION NOT UNDER THE JURISDICTION OF THE ADMINISTRATOR WHICH FURNISHES NURSING HOME CARE, FOR CARE AT THE EXPENSE OF THE UNITED STATES * * *.'

WE HAVE BEEN ADVISED BY THE ADMINISTRATIVE HEADQUARTERS OF THE VETERANS ADMINISTRATION, WASHINGTON, D.C., THAT IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN SECTION 620 THE VETERANS ADMINISTRATION HAS CONTRACTED WITH MANY PRIVATE NURSING HOMES FOR THE NURSING HOME CARE OF VETERANS AS AUTHORIZED IN THE CITED STATUTORY PROVISION. SUCH A CONTRACT WAS ENTERED INTO IN JUNE 1965 WITH THE * * * NURSING HOME, * * *. THAT CONTRACT WAS IN EFFECT WHEN LIEUTENANT * * * RECEIVED NURSING HOME CARE IN INSTITUTION FROM MARCH 10, 1966, TO SEPTEMBER 8, 1966, INCLUSIVE. A SIMILAR CONTRACT WAS ENTERED INTO IN SEPTEMBER 1965 WITH THE * * * CONVALESCENT CENTER, * * *. THIS LATTER CONTRACT WAS IN EFFECT WHEN SERGEANT * * * RECEIVED NURSING HOME CARE IN INSTITUTION FROM JULY 12, 1966, TO DECEMBER 31, 1966, INCLUSIVE. THEREFORE, IT WOULD APPEAR THAT THAT PART OF THE FIRST SENTENCE IN PARAGRAPH 11, LETTER OF APRIL 10, 1967, WHICH STATES THAT SERGEANT * * * ENTERED A PRIVATE NURSING HOME "NOT UNDER CONTRACT TO * * * THE VETERANS ADMINISTRATION" IS IN ERROR.

IN VIEW OF THE CIRCUMSTANCES ABOVE SET FORTH IT IS EVIDENT THAT BOTH SERGEANT * * * AND LIEUTENANT * * * RECEIVED NURSING HOME CARE "AT THE EXPENSE OF THE UNITED STATES," THE FORMER WHILE AT THE * * * CONVALESCENT CENTER, * * *, DURING THE PERIOD JULY 12, 1966, TO DECEMBER 31, 1966, INCLUSIVE, AND THE LATTER WHILE IN * * * NURSING HOME, * * *, DURING THE PERIOD MARCH 10, 1966, TO SEPTEMBER 8, 1966, INCLUSIVE. IT APPEARS PROPER TO VIEW SUCH CARE AS "INSTITUTIONAL OR DOMICILIARY CARE (FURNISHED) BY THE VETERANS' ADMINISTRATION" WITHIN THE MEANING OF 38 U.S.C. 3203/A) (1). SEE VA REGULATION 1551/A) (2). IN EACH CASE, THEREFORE, THE REDUCTION PROVISIONS OF SECTION 3203/A) (1) ARE APPLICABLE AND PAYMENT OF RETIRED PAY AT ONE-HALF OF THE AMOUNT OTHERWISE PAYABLE AS PROPOSED IN THE VOUCHER SUBMITTED IS PROPER. THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH AND, IF OTHERWISE CORRECT, PAYMENT MAY BE MADE AS STATED THEREON TO THE DIRECTOR, VETERANS ADMINISTRATION HOSPITAL, * * *, AS TRUSTEE FOR SERGEANT * * *, AND TO THE * * * TRUST COMPANY AS CONSERVATOR OF THE ESTATE OF * * *.

SEVERAL ADDITIONAL QUESTIONS SUBMITTED BY YOU FOR ADVANCE DECISION AS A BASIS FOR PROPER ACTION IN OTHER SIMILAR CASES ARE AS FOLLOWS:

"A. IS ADMISSION TO A PRIVATE NON-VETERANS ADMINISTRATION-MANAGED NURSING HOME AT GOVERNMENT EXPENSE IMMEDIATELY SUBSEQUENT TO AN APPROVED - DISCHARGE MAXIMUM HOSPITAL BENEFITS' TANTAMOUNT TO A TRANSFER WHICH HAS THE EFFECT OF CONTINUOUS HOSPITALIZATION WITHIN THE MEANING OF 38 U.S.C. 3203/A) (1/?

"B. IS A PRIVATE OR PUBLIC NURSING HOME, NOT UNDER DIRECT AND EXCLUSIVE JURISDICTION OF THE VETERANS ADMINISTRATOR, AS PROVIDED BY PUBLIC LAW 88- 450, 19 AUGUST 1964 (38 U.S.C. 620), TO BE CONSIDERED A NURSING HOME UNDER CONTRACT TO THE VETERANS ADMINISTRATION WITHIN THE MEANING OF -NURSING HOME CARE AT VETERANS ADMINISTRATION EXPENSE- ? IF NOT, IS REDUCTION OF RETIRED PAY UNDER PROVISIONS OF 38 U.S.C. 3203/A) (1) REQUIRED FOR A - CONTRACT- HOME AND A PRIVATE HOME IN EXACTLY THE SAME MANNER?

"C. IS ADMISSION TO A PRIVATE, NON-VETERANS ADMINISTRATION-MANAGED NURSING HOME AT EXPENSE OF THE GOVERNMENT AFTER -DISCHARGE MAXIMUM HOSPITAL BENEFITS' (FROM A VETERANS ADMINISTRATION INSTITUTION) TO BE REGARDED AS THE BEGINNING OF A NEW PERIOD OF HOSPITALIZATION FOR REDUCTION OF RETIRED PAY UNDER 38 U.S.C. 3203/A) (1/? IF THE NURSING HOME IS UNDER CONTRACT TO THE VETERANS ADMINISTRATION, IS A NEW PERIOD OF HOSPITALIZATION STARTED OR IS HOSPITALIZATION CONTINUOUS THROUGH TRANSFER?

"D. SINCE 38 U.S.C. 3203/A) (1) AND 38 U.S.C. 620 ARE BASICALLY SECTIONS OF LAW DESIGNED FOR THE PURPOSE OF ADMINISTERING VETERANS ADMINISTRATION BENEFITS, TO WHAT EXTENT ARE THE MILITARY SERVICE DEPARTMENTS RESPONSIBLE FOR MAKING INDIVIDUAL DETERMINATIONS REGARDING THE PROPER IMPLEMENTATION OF THE STATUTES FOR PAYING RETIRED PAY TO VETERANS, COMPETENT AND INCOMPETENT, WHO MAY RECEIVE NURSING HOME CARE AT GOVERNMENT EXPENSE, WHEN SUCH INFORMATION REGARDING DETERMINATIONS IS INSUFFICIENT, LACKING OR CONTRADICTORY?

QUESTION A IS ANSWERED IN THE AFFIRMATIVE.

THE TEST AS TO WHETHER A NURSING HOME, NOT UNDER THE JURISDICTION OF THE VETERANS ADMINISTRATION AS PROVIDED IN 38 U.S.C. 620, IS TO BE CONSIDERED A NURSING HOME UNDER CONTRACT TO THE VETERANS ADMINISTRATION IS SIMPLY WHETHER THE VETERANS ADMINISTRATION HAS ENTERED INTO A VALID CONTRACT FOR NURSING HOME CARE WITH SUCH A HOME. THE PROVISIONS OF 38 U.S.C. 3203/A) (1) APPLY IF THERE IS IN FORCE AND EFFECT A VALID CONTRACT WITH SUCH A HOME FOR NURSING HOME CARE AS AUTHORIZED IN 38 U.S.C. 620. ON THE OTHER HAND PROVISIONS OF 38 U.S.C. 3203/A) (1) ARE NOT APPLICABLE IF NURSING HOME CARE IS NOT FURNISHED AT GOVERNMENT EXPENSE. QUESTION B IS ANSWERED ACCORDINGLY.

SINCE BOTH SITUATIONS SET FORTH IN QUESTION C APPEAR TO CONTEMPLATE THE FURNISHING OF CONTINUED CARE BY THE VETERANS ADMINISTRATION, A NEW PERIOD OF HOSPITALIZATION DOES NOT COMMENCE FOR PURPOSES OF 38 U.S.C. 3203/A) (1) IN EITHER CASE. QUESTION C IS ANSWERED ACCORDINGLY.

IN ANSWER TO QUESTION D YOU ARE ADVISED THAT IN ADMINISTERING THE PROVISIONS OF 38 U.S.C. 3203/A) (1), WHETHER IN CONJUNCTION WITH THE PROVISIONS OF 38 U.S.C. 620 OR OTHERWISE, THE MILITARY DEPARTMENTS ARE NOT REQUIRED TO MAKE, NOR SHOULD THEY ATTEMPT TO MAKE, DETERMINATIONS BASED ON INFORMATION WHICH IS INSUFFICIENT, LACKING IN ESSENTIAL ELEMENTS OR CONTRADICTORY IN NATURE. IN SUCH CIRCUMSTANCES THE PROCEDURE PRESCRIBED IN 31 U.S.C. 74 SHOULD BE FOLLOWED WHICH AUTHORIZES DISBURSING OFFICERS OR THE HEAD OF ANY EXECUTIVE DEPARTMENT, OR OTHER ESTABLISHMENT NOT UNDER ANY OF THE EXECUTIVE DEPARTMENTS, TO APPLY FOR A DECISION BY THE COMPTROLLER GENERAL UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM OR UNDER THEM.