B-168083, JANUARY 23, 1970, 49 COMP. GEN. 450

B-168083, JANUARY 23, 1970, 49 COMP. GEN. 450

FEES -- PHYSICIANS -- STATE LICENSE FEES -- REIMBURSEMENT AN AIR FORCE MEDICAL OFFICER, LICENSED IN TEXAS, WHO WHILE IN RESIDENCY AT A MILITARY HOSPITAL IN MISSISSIPPI IS ASSIGNED FOR 6 MONTHS TO A NEW ORLEANS CIVILIAN HOSPITAL, MAY NOT BE REIMBURSED THE COST OF THE FEES PAID IN CONNECTION WITH RECIPROCITY LICENSURE IN THE STATE OF LOUISIANA. THE STATUTE PRESCRIBING THE FEES, EXEMPTS PHYSICIANS AND SURGEONS IN THE MILITARY SERVICE PRACTICING IN THE DISCHARGE OF OFFICIAL DUTIES, AND THE OFFICER WHILE ASSIGNED TO THE SPECIAL MEDICAL TRAINING IS CONSIDERED TO HAVE BEEN PERFORMING MILITARY DUTIES, AND IN THE ABSENCE OF STATUTORY AUTHORITY FOR THE PAYMENT OF THE STATE FEES, APPROPRIATED FUNDS MAY NOT BE USED TO IMPOSE A BURDEN ON THE GOVERNMENT IN THE CONDUCT OF ITS OFFICIAL BUSINESS.

TO D. F. ADAMS, DEPARTMENT OF THE AIR FORCE, JANUARY 23, 1970:

WE REFER TO YOUR UNDATED LETTER, WITH ENCLOSURES, FORWARDED OCTOBER 6, 1969, BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER, IN WHICH YOU REQUEST AN ADVANCE DECISION REGARDING PAYMENT OF A VOUCHER FOR $114.50 AS REIMBURSEMENT TO CAPTAIN WARREN C. MILLER, USAF, FOR FEES PAID BY HIM IN CONNECTION WITH MEDICAL LICENSURE IN THE STATE OF LOUISIANA.

IN ACCORDANCE WITH AIR FORCE MANUAL 50-5, USAF FORMAL SCHOOLS CATALOG, USAF HOSPITAL KEESLER, KEESLER AFB, MISSISSIPPI, OFFERS RESIDENCES IN VARIOUS MEDICAL SPECIALITIES IN CONFORMITY WITH THE USAF MEDICAL TRAINING PROGRAM, A PROGRAM OF ADVANCED TRAINING IN PREPARATION FOR THE PRACTICE OF A MEDICAL SPECIALTY. THE PURPOSE OF THIS PROGRAM IS TO SUPPLY FULLY TRAINED CAREER OFFICER SPECIALISTS TO STAFF AIR FORCE MEDICAL FACILITIES.

YOU SAY THAT AS A PART OF THE APPROVED TRAINING PROGRAM FOR CAREER OFFICERS AT USAF HOSPITAL KEESLER CERTAIN REQUIREMENTS MUST BE MET BY AFFILIATION AND TRAINING AT THE CHARITY HOSPITAL (TULANE UNIVERSITY SERVICE), NEW ORLEANS, INVOLVING A 6-MONTH ROTATION THERE OF THE SECOND YEAR RESIDENTS AT KEESLER, WHICH INCLUDES PAYMENT OF STATE OF LOUISIANA RECIPROCITY LICENSURE FROM OTHER STATES OR PAYMENT OF A FEE FOR REEXAMINATION TO PRACTICE. ALSO, YOU INDICATE THAT AN ATTEMPT TO OBTAIN WAIVER OF SUCH PAYMENTS WAS NOT CONSIDERED FAVORABLY BY THE LOUISIANA BOARD OF MEDICAL EXAMINERS.

CAPTAIN MILLER, A MEDICAL OFFICER, LICENSED IN THE STATE OF TEXAS AND A RESIDENT IN A 3-YEAR PROGRAM OF INTERNAL MEDICINE AT USAF HOSPITAL KEESLER, WAS ASSIGNED AS PART OF HIS RESIDENCY TO CHARITY HOSPITAL, NEW ORLEANS, LOUISIANA, FROM JULY 15, 1968, TO JANUARY 15, 1969. UPON PAYMENT OF THE REQUISITE FEE HE RECEIVED A TEMPORARY PERMIT. HE OBTAINED LICENSURE BY RECIPROCITY AFTER PAYMENT OF ADDITIONAL FEES. TOTAL PAYMENT WAS $114.50.

THE LOUISIANA CONSTITUTION, ARTICLE 6, SECTION 12, PROVIDES THAT "THE LEGISLATURE SHALL PROVIDE FOR THE INTEREST OF STATE MEDICINE IN ALL ITS DEPARTMENTS; FOR THE PROTECTION OF THE PEOPLE FROM UNQUALIFIED PRACTITIONERS OF MEDICINE *** ." SECTION 37: 1270 LOUISIANA REVISED STATUTES STATES THAT "NO PERSON SHALL PRACTICE MEDICINE OR MIDWIFERY IN ANY OF ITS DEPARTMENTS UNLESS HE POSSESSES A CERTIFICATE ISSUED UNDER THIS PART AND DULY RECORDED." SECTION 37: 1261 DEFINES THE PRACTICE OF MEDICINE, AND SECTION 37: 1281 SETS FEES, INCLUDING SPECIAL FEES FOR INTERNS AND RESIDENTS. THE PERTINENT PORTION OF SECTION 37: 1290 "EXEMPTIONS," STATES THAT "NONE OF THE PROVISIONS OF THIS PART SHALL APPLY TO: (1) ANY COMMISSIONED PHYSICIAN OR SURGEON OF THE UNITED STATES ARMY, NAVY, OR PUBLIC HEALTH SERVICE, PRACTICING IN THE DISCHARGE OF HIS OFFICIAL DUTIES: *** "

EXAMINATION OF THE CORRESPONDENCE FROM THE LOUISIANA STATE BOARD OF MEDICAL EXAMINERS INDICATES A REFUSAL TO GRANT A PERMIT OR LICENSE WITHOUT FEE. THERE IS NO REFERENCE TO SECTION 1290 (1) OR ITS PERTINENCE IN THE CIRCUMSTANCES.

THE INDICATED EXEMPTION AS TO PHYSICIANS OR SURGEONS OF THE MILITARY SERVICES IN THE DISCHARGE OF THEIR OFFICIAL DUTIES APPEARS TO BE CONSISTENT WITH THE PRINCIPLE SET FORTH IN JOHNSON V MARYLAND, 254 U.S. 51 (1920), PROVIDING IMMUNITY OF INSTRUMENTS OF THE UNITED STATES FROM STATE CONTROL IN THE PERFORMANCE OF THEIR DUTIES BY WAY OF REQUIREMENT THAT THEY DESIST FROM PERFORMANCE UNTIL THEY MEET STATE PERFORMANCE REQUIREMENTS OF SUCH DUTIES AND PAY A FEE FOR PERMISSION TO PERFORM.

UNDER THAT PRINCIPLE IT IS CONSIDERED THAT SUCH STATE REQUIREMENTS AND ASSESSED FEES HAVE NO APPLICATION TO THE UNITED STATES. 31 COMP. GEN. 81 (1951). IF, THEREFORE, IT CAN BE CONSIDERED THAT THE OFFICERS INVOLVED IN THE PROGRAM IN QUESTION ARE IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES AS MILITARY OFFICERS ON ACTIVE DUTY WHILE AT TULANE UNIVERSITY AND CHARITY HOSPITAL, IT IS NOT UNDERSTOOD WHY THEY WOULD NOT BE SUBJECT TO SUCH EXEMPTION AND, UNLESS OTHERWISE AUTHORIZED BY STATUTE, THERE WOULD APPEAR TO BE NO PROPER BASIS FOR THE PAYMENT FROM APPROPRIATED FUNDS OF THE LICENSURE OR OTHER FEES THAT MIGHT BE LEVIED BY THE STATE OF LOUISIANA INCIDENT TO THE PRACTICE OF MEDICINE.

EVEN THOUGH PARTICIPATING IN MEDICAL ACTIVITIES IN OTHER THAN FEDERALLY OWNED OR CONTROLLED FACILITIES NOT DIRECTLY INVOLVING THE TREATMENT OF SERVICE CONNECTED INJURIES OR DISEASE, MEDICAL OFFICERS ON ACTIVE DUTY UNDERGOING INTERN OR SPECIALTY TRAINING IN CIVILIAN HOSPITALS TO INCREASE THEIR PROFICIENCY FOR SERVICE IN THE MEDICAL DEPARTMENTS OF THE ARMED FORCES HAVE BEEN CONSIDERED TO BE IN THE PERFORMANCE OF THEIR ASSIGNED DUTIES. FOR PERFORMING SUCH DUTIES, THEY ARE ENTITLED TO RECEIVE ONLY THEIR AUTHORIZED PAY AND ALLOWANCES. 29 COMP. GEN. 163 (1949).

PUBLIC LAW 90-580, APPROVED OCTOBER 17, 1968, 82 STAT. 1120, MAKING APPROPRIATIONS FOR THE DEPARTMENT OF DEFENSE FOR THE FISCAL YEAR ENDING JUNE 30, 1969, INCLUDES, UNDER THE APPROPRIATION FOR OPERATION AND MAINTENANCE, AIR FORCE, A PROVISION FOR EXPENSES FOR "TRAINING AND INSTRUCTION OF MILITARY PERSONNEL OF THE AIR FORCE, INCLUDING TUITION AND RELATED EXPENSES." THE "RELATED EXPENSES" WOULD APPEAR TO CONTEMPLATE SUCH EXPENSES AS THE PURCHASE OF TEXT BOOKS, SUPPLIES AND OTHER EXPENSES DIRECTLY RELATED TO THE TRAINING OR INSTRUCTION.

WE FIND NOTHING TO INDICATE ANY LEGISLATIVE INTENT THAT SUCH PROVISION WOULD COVER THE PAYMENT OF ANY STATE LICENSE FEES INCIDENT TO THE TRAINING AND INSTRUCTION OF MILITARY PERSONNEL SINCE, AS INDICATED IN JOHNSON V MARYLAND, THE STATES, GENERALLY, HAVE NO AUTHORITY TO IMPOSE SUCH A BURDEN ON THE GOVERNMENT IN THE CONDUCT OF ITS OFFICIAL BUSINESS.

IT IS NOTED THAT IN AIR FORCE REGULATION 169-4, A COPY OF WHICH WAS ENCLOSED WITH THE ASSISTANT SECRETARY'S LETTER, THE MEDICAL SERVICE ENCOURAGES ITS MEMBERS TO ATTAIN CERTIFICATION IN THEIR AREAS OF SPECIALIZATION THROUGH PROFESSIONAL SPECIALTY BOARD EXAMINATIONS. PARAGRAPH 7 PROVIDES FOR REIMBURSEMENT OF FEES AND EXPENSES INCIDENT TO SUCH EXAMINATION AND CERTIFICATION. PARAGRAPH 8 PROVIDES, HOWEVER, THE REIMBURSEMENT OF TRAVEL COSTS AND EXPENSES FOR LICENSURE BY A STATE BOARD IS NOT AUTHORIZED UNDER THAT REGULATION. NOR DOES IT CITE ANY OTHER AUTHORITY FOR REIMBURSEMENT OF SUCH FEES.

SINCE, THEREFORE, FEES FOR WHICH REIMBURSEMENT IS CLAIMED BY CAPTAIN MILLER WERE LEVIED BY THE STATE OF LOUISIANA AS AN INCIDENT TO THE PERFORMANCE OF HIS ASSIGNED MILITARY DUTIES AND SINCE WE ARE NOT AWARE OF ANY STATUTORY AUTHORITY FOR PAYMENT OF SUCH EXPENSES, IT IS CONCLUDED THAT THEIR PAYMENT FROM APPROPRIATED FUNDS IS NOT AUTHORIZED. THEREFORE, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE.