B-174221, NOV 15, 1971

B-174221: Nov 15, 1971

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FOR PAYMENT OF FEE INCIDENT TO AN APPOINTMENT MADE FOR A GOVERNMENT EMPLOYEE WHICH WAS NOT KEPT. HAMPTON: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28. IN WHICH YOU REQUEST A DECISION ON THE FOLLOWING: "MAY THE COMMISSION PAY A PSYCHIATRIST HIS FEE WHEN IT AUTHORIZES AN APPLICANT TO ARRANGE A 'DEFINITE APPOINTMENT' WITH THE PSYCHIATRIST WITH ACTUAL KNOWLEDGE THAT THE PARTICULAR PSYCHIATRIST CONTRACTS ON A RESERVATION-OF-TIME BASIS AND THAT THIS IS THE CUSTOMARY BASIS FOR PSYCHIATRISTS TO CONTRACT. AS SET OUT IN YOUR LETTER ARE AS FOLLOWS: "IN THE CASE AT HAND THE APPLICANT SIGNED AN AGREEMENT 'TO SUBMIT TO A MEDICAL EXAMINATION' AND ON MARCH 3. SMITH'S LETTER OF MARCH 8 WAS NOT RECEIVED UNTIL MARCH 12 AND ON THAT DATE OUR MEDICAL OFFICER WROTE DR.

B-174221, NOV 15, 1971

PAYMENT OF PSYCHIATRIST FEES WHEN APPOINTMENT MISSED DECISION ALLOWING CLAIM OF DR. DAVID H. SMITH, PSYCHIATRIST, FOR PAYMENT OF FEE INCIDENT TO AN APPOINTMENT MADE FOR A GOVERNMENT EMPLOYEE WHICH WAS NOT KEPT, AS THE DOCTOR, PRIOR TO MAKING OF THE APPOINTMENT, MADE IT CLEAR THAT HE OPERATED ON A RESERVE TIME BASIS AND THAT APPOINTMENTS HAD TO BE PAID FOR WHETHER ATTENDED OR NOT.

TO MR. ROBERT E. HAMPTON:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28, 1971, IN WHICH YOU REQUEST A DECISION ON THE FOLLOWING:

"MAY THE COMMISSION PAY A PSYCHIATRIST HIS FEE WHEN IT AUTHORIZES AN APPLICANT TO ARRANGE A 'DEFINITE APPOINTMENT' WITH THE PSYCHIATRIST WITH ACTUAL KNOWLEDGE THAT THE PARTICULAR PSYCHIATRIST CONTRACTS ON A RESERVATION-OF-TIME BASIS AND THAT THIS IS THE CUSTOMARY BASIS FOR PSYCHIATRISTS TO CONTRACT, AND THE APPLICANT FAILS TO KEEP THE DEFINITE APPOINTMENT MADE UNDER THOSE CONDITIONS?"

THE FACTS, AS SET OUT IN YOUR LETTER ARE AS FOLLOWS:

"IN THE CASE AT HAND THE APPLICANT SIGNED AN AGREEMENT 'TO SUBMIT TO A MEDICAL EXAMINATION' AND ON MARCH 3, 1971, OUR MEDICAL OFFICER WROTE DR. DAVID H. SMITH, WHEELING, WEST VIRGINIA, A PSYCHIATRIST, REQUESTING ADVICE AS TO WHETHER HE WOULD BE WILLING TO EXAMINE THE APPLICANT. DR. SMITH, ON MARCH 8, WROTE THAT HE WOULD SEE THE APPLICANT ON MARCH 15. DR. SMITH'S LETTER OF MARCH 8 WAS NOT RECEIVED UNTIL MARCH 12 AND ON THAT DATE OUR MEDICAL OFFICER WROTE DR. SMITH AND ADVISED THAT AS THE APPLICANT RESIDED IN CAMBRIDGE, OHIO, WE COULD NOT CONTACT HIM AND ARRANGE THE MARCH 15 APPOINTMENT. THE MARCH 12 LETTER TO DR. SMITH STATED THAT THE APPLICANT WAS BEING INSTRUCTED 'TO GET IN TOUCH WITH YOUR OFFICE IMMEDIATELY FOR A DEFINITE APPOINTMENT.' ON MARCH 15 OUR MEDICAL OFFICER WROTE DR. SMITH AND INFORMED HIM THAT THE APPLICANT 'HAS BEEN INSTRUCTED TO GET IN TOUCH WITH YOUR OFFICE IMMEDIATELY FOR A DEFINITE APPOINTMENT.' THE APPLICANT WAS INSTRUCTED ACCORDINGLY ON THE SAME DATE. ON MARCH 16 DR. SMITH WROTE THE COMMISSION AND EXPRESSED CONCERN OVER THE LACK OF ADVANCE NOTICE TO THE EFFECT THAT THE APPLICANT COULD NOT KEEP THE MARCH 15 APPOINTMENT. THIS MARCH 16 LETTER DR. SMITH EXPRESSLY STATED, 'ONCE A CONTRACT IS MADE FOR MY TIME I BELIEVE IT IS BINDING AND EVEN IF THE PATIENT DOES NOT COME IN THE BILL MUST BE PAID.'

"THE COMMISSION, AFTER RECEIPT OF DR. SMITH'S LETTER OF MARCH 16, MADE NO CHANGE IN THE ARRANGEMENTS WITH THE APPLICANT AND THE LATTER MADE AN APPOINTMENT FOR MARCH 26 WHICH THE APPLICANT FAILED TO KEEP WITHOUT NOTICE TO THE DOCTOR. IT IS THE FEE FOR THIS MARCH 26 APPOINTMENT THAT IS THE SUBJECT OF THIS REQUEST FOR A DECISION. AS EXPLAINED IN A LETTER FROM THE WHEELING CLINIC WITH WHICH DR. SMITH IS AFFILIATED, 'SINCE THIS TIME ON MARCH 26 WAS ALLOTTED FOR HIM THE APPLICANT, WE HAVE THIS DATE MADE OUR ROUTINE CHARGE FOR THIS RESERVED TIME.' THE APPLICANT WROTE SUBSEQUENTLY TO OUR MEDICAL OFFICER AND STATED HE HAD NOT GONE TO DR. SMITH AS HE HAD DECIDED 'NOT TO PURSUE MY APPLICATION *** AT THIS TIME.'"

IN OUR DECISION 42 COMP. GEN. 498 (1963), WE HELD THAT THE GOVERNMENT HAS NO OBLIGATION TO PAY A PSYCHIATRIST A FEE FOR THE VALUE OF HIS TIME RESERVED WHEN NO PROFESSIONAL SERVICES ARE PERFORMED BECAUSE THE EMPLOYEE FAILED TO KEEP HIS APPOINTMENT.

THE BASIS OF THAT DECISION TURNED ON THE NATURE OF THE CONTRACT INVOLVED. IT WAS STATED IN THAT CASE:

" *** THE CONTRACT IN ITS ESSENCE WAS A PROMISE BY THE GOVERNMENT TO PAY THE PROFESSIONAL FEE (OFFER) UPON THE RENDITION OF THE PROFESSIONAL SERVICES ON BEHALF OF THE POST OFFICE EMPLOYEE. SINCE THE PROFESSIONAL SERVICES WERE NOT RENDERED IT FOLLOWS THAT THE CONTRACT CONTEMPLATED DID NOT MATERIALIZE. THERE HAS BEEN OFFERED NO EVIDENCE THAT THERE WAS ANY AGREEMENT TO PAY THE FEE ON THE BASIS OF THE RESERVATION OF TIME, I.E., WHETHER OR NOT THE EMPLOYEE KEPT THE APPOINTMENT. *** "

THE FACTS IN THE PRESENT CASE, HOWEVER, DISTINGUISH IT FROM THE ABOVE CITED DECISION. DR. SMITH'S LETTER OF MARCH 16, CLEARLY STATES HIS POLICY OF ACCEPTING APPOINTMENTS ON A RESERVATION-OF-TIME BASIS. THE COMMISSION, IN APPOINTING THE APPLICANT AS ITS AGENT TO ARRANGE FOR "A DEFINITE APPOINTMENT" DIRECTLY WITH DR. SMITH, AND IN ACQUIESCING TO THE TERMS SET FORTH BY DR. SMITH IN THE MARCH 16 LETTER, IS OBLIGATED UNDER THE TERMS OF THE CONTRACT, AS EVIDENCED IN THE CORRESPONDENCE, FOR PAYMENT FOR THE RESERVED TIME SINCE THE APPLICANT FAILED TO KEEP THE APPOINTMENT OR CANCEL IT WITHIN A REASONABLE TIME.

ACCORDINGLY, THE PSYCHIATRIST FEE IS PROPERLY PAYABLE UNDER THESE CIRCUMSTANCES.