B-5531, AUGUST 25, 1939, 19 COMP. GEN. 284

B-5531: Aug 25, 1939

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MEDICAL CONSULTANTS - STATUS AS OFFICERS AND EMPLOYEES FOR ALIEN COMPENSATION PAYMENT RESTRICTION PURPOSES WHILE THE TERM "COMPENSATION" IS BROAD ENOUGH TO INCLUDE FEES AND HAS BEEN SO CONSTRUED FOR CERTAIN PURPOSES. WHO DO NOT DEVOTE THEIR ENTIRE TIME OR PART TIME DURING A PRESCRIBED TOUR OF DUTY TO THE WORK OF THE GOVERNMENT AND ARE NOT IN A STATUS WHICH WOULD REQUIRE THEM TO TAKE AN OATH OF OFFICE BUT ARE ENGAGED ONLY IN CONNECTION WITH PARTICULAR CASES ADMINISTRATIVELY REFERRED TO THEM. OR IN CONNECTION WITH CASES IN WHICH THEY ARE CALLED FOR SERVICE OR IN CONSULTATION. ARE NOT OFFICERS AND EMPLOYEES OF THE UNITED STATES WITHIN THE UNITED STATES CITIZENSHIP REQUIREMENTS OF SECTION 5 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF MAY 23.

B-5531, AUGUST 25, 1939, 19 COMP. GEN. 284

WORDS AND PHRASES - "COMPENSATION" AND "OFFICERS AND EMPLOYEES OF THE UNITED STATES; " VETERANS' ADMINISTRATION - FEE-BASIS DENTISTS, PHYSICIANS, AND MEDICAL CONSULTANTS - STATUS AS OFFICERS AND EMPLOYEES FOR ALIEN COMPENSATION PAYMENT RESTRICTION PURPOSES WHILE THE TERM "COMPENSATION" IS BROAD ENOUGH TO INCLUDE FEES AND HAS BEEN SO CONSTRUED FOR CERTAIN PURPOSES, THE TERM "OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES" DOES NOT NECESSARILY INCLUDE EVERY PERSON WHO RECEIVES ANY COMPENSATION FROM THE GOVERNMENT. "DESIGNATED" PHYSICIANS AND DENTISTS EMPLOYED BY THE VETERANS' ADMINISTRATION ON A FEE BASIS, AS WELL AS "PRIVATE" PHYSICIANS AND DENTISTS AND MEDICAL CONSULTANTS SIMILARLY EMPLOYED, WHO DO NOT DEVOTE THEIR ENTIRE TIME OR PART TIME DURING A PRESCRIBED TOUR OF DUTY TO THE WORK OF THE GOVERNMENT AND ARE NOT IN A STATUS WHICH WOULD REQUIRE THEM TO TAKE AN OATH OF OFFICE BUT ARE ENGAGED ONLY IN CONNECTION WITH PARTICULAR CASES ADMINISTRATIVELY REFERRED TO THEM, OR IN CONNECTION WITH CASES IN WHICH THEY ARE CALLED FOR SERVICE OR IN CONSULTATION, ARE NOT OFFICERS AND EMPLOYEES OF THE UNITED STATES WITHIN THE UNITED STATES CITIZENSHIP REQUIREMENTS OF SECTION 5 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF MAY 23, 1938, 52 STAT. 435.

COMPTROLLER GENERAL BROWN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, AUGUST 25, 1939:

I HAVE YOUR LETTER OF AUGUST 10, 1939, AS FOLLOWS:

THERE IS PRESENTED FOR YOUR CONSIDERATION THE QUESTION WHETHER THE CERTIFICATION, AS TO CITIZENSHIP, CONTEMPLATED BY SECTION 5, INDEPENDENT OFFICER APPROPRIATION ACT, 1939, PUBLIC, NO. 534, 75TH CONGRESS, APPROVED MAY 23, 1938, IS ESSENTIAL IN THE PAYMENT, BY THIS ADMINISTRATION, OF ACCOUNTS OF DESIGNATED PHYSICIANS, AND DENTISTS, ON A FEE BASIS; PRIVATE PHYSICIANS, AND DENTISTS, ON A FEE BASIS; AND MEDICAL CONSULTANTS ON FEE BASIS.

SECTION 5, SUPRA, CONTAINS THE FOLLOWING PROVISIONS:

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, * * * UNLESS SUCH PERSON IS A CITIZEN OF THE UNITED STATES, OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO BEING ELIGIBLE FOR CITIZENSHIP HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES.'

IN AN OPINION BY THE GENERAL COUNSEL OF THE THEN VETERANS' BUREAU, DATED JANUARY 24, 1930, IN THE CASE OF EDGAR D. SHANKS, C-355,417 (62 G.C. 126), CONCERNING THE APPLICABILITY OF AN ADMINISTRATIVE INSTRUCTION REQUIRING THAT EMPLOYEES BE PHYSICALLY EXAMINED AT A BUREAU STATION OTHER THAN THE ONE AT WHICH THEY WERE EMPLOYED, WITH PARTICULAR REFERENCE TO A DESIGNATED MEDICAL EXAMINER ON A FEE BASIS, IT WAS HELD:

"AFTER A CAREFUL STUDY OF THE GENERAL RULES LAW REGARDING THE DISTINCTION BETWEEN EMPLOYEES AND INDEPENDENT CONTRACTORS, THIS SERVICE IS OF THE OPINION THAT FEE BASIS DESIGNATED EXAMINERS ARE NOT EMPLOYEES OF THE BUREAU BUT ARE INDEPENDENT CONTRACTORS. * * *"

UNDER DATE OF APRIL 15, 1929, THE DIRECTOR OF THE THEN VETERANS' BUREAU MADE INQUIRY OF THE POSTMASTER GENERAL CONCERNING THE AVAILABILITY OF PENALTY ENVELOPES TO MEDICAL EXAMINERS EMPLOYED ON A FEE BASIS, FOR THE PURPOSE OF TRANSMITTING TO THE BUREAU THE REPORTS OF PHYSICAL EXAMINATION WHICH THEY WERE REQUIRED TO FURNISH. IN REPLY LETTER DATED APRIL 27, 1929, THE ASSISTANT POSTMASTER GENERAL ADVISED AS FOLLOWS (58 G.C. 122; 65 G.C. 151):

"THE STATUTES GOVERNING THE PENALTY PRIVILEGE, EMBODIED IN SECTION 485, POSTAL LAWS AND REGULATIONS, RESTRICT THE USE OF PENALTY ENVELOPES TO OFFICERS OF THE UNITED STATES GOVERNMENT SOLELY FOR THE PURPOSE OF TRANSMITTING IN THE MAILS FREE OF POSTAGE MATTERS RELATING EXCLUSIVELY TO THE BUSINESS OF THE GOVERNMENT OF THE UNITED STATES.

"AS THE MEDICAL EXAMINERS REFERRED TO ARE NOT OFFICERS OF THE UNITED STATES GOVERNMENT THEY ARE NOT ENTITLED TO USE PENALTY ENVELOPES EXCEPT WHEN SUCH ENVELOPES ARE PROPERLY FURNISHED BY AN OFFICER OF THE GOVERNMENT WITH A REQUEST FOR OFFICIAL INFORMATION * * *.'

UNDER DATE OF NOVEMBER 5, 1937, THE THEN SOLICITOR OF THIS ADMINISTRATION MADE INQUIRY OF THE POSTMASTER GENERAL CONCERNING THE AVAILABILITY OF THE ABOVE-MENTIONED PENALTY ENVELOPES TO PHYSICIANS EMPLOYED BY THE VETERANS' ADMINISTRATION ON A PART-TIME SALARY BASIS, INVITING ATTENTION TO THE FOLLOWING DISTINCTION:

"IT IS EXPLAINED THAT PHYSICIANS APPOINTED ON A PART-TIME SALARY BASIS ARE REQUIRED TO TAKE THE OATH OF OFFICE PRESCRIBED FOR FULL-TIME EMPLOYEES OF THE UNITED STATES GOVERNMENT, AND ARE PAID FOR THE SERVICES RENDERED ON A SALARY BASIS, AS DISTINGUISHED FROM A FEE BASIS, AS IN THE CASE OF DESIGNATED EXAMINERS AND FEE BASIS PHYSICIANS.'

IN REPLY LETTER DATED NOVEMBER 11, 1937, THE ASSISTANT POSTMASTER GENERAL ADVISED:

"AS EMPLOYEES OF YOUR ADMINISTRATION, THESE PHYSICIANS ARE OFFICERS OF THE UNITED STATES GOVERNMENT AND AS SUCH ARE ENTITLED TO SEND IN THE MAILS FREE OF POSTAGE "MATTERS RELATING EXCLUSIVELY TO THE BUSINESS OF THE GOVERNMENT OF THE UNITED STATES.'

THE TERM "DESIGNATED PHYSICIANS" IS APPLIED TO PHYSICIANS APPOINTED TO MAKE EXAMINATIONS OF, OR TO RENDER TREATMENT TO, BENEFICIARIES, ON A FEE BASIS.

"DESIGNATED DENTISTS" IS A TERM APPLIED TO DENTISTS APPOINTED TO MAKE DENTAL EXAMINATIONS OR TO RENDER DENTAL TREATMENT ON A FEE BASIS.

"PRIVATE PHYSICIANS" ARE THOSE AUTHORIZED TO RENDER SERVICES ON A FEE BASIS, THAT CAN BE FURNISHED IN THIS WAY TO BETTER ADVANTAGE AND AT LESS EXPENSE THAN IF THE BENEFICIARIES WERE REQUIRED TO REPORT TO A FIELD STATION OF THE VETERANS' ADMINISTRATION OR TO A DESIGNATED PHYSICIAN. PRIVATE PHYSICIANS, FOR EXAMPLE, ARE MORE CONVENIENTLY OR NECESSARILY USED FOR BEDFAST PATIENTS IN REGIONS WHERE SERVICES OF DESIGNATED PHYSICIANS ARE NOT PROCURABLE. THE USE OF PRIVATE PHYSICIANS, HOWEVER, IS THE EXCEPTION RATHER THAN THE RULE.

"PRIVATE DENTISTS" ARE THOSE DENTISTS TO WHOM THE PERFORMANCE OF DENTAL EXAMINATIONS AND TREATMENTS ON A FEE BASIS IS AUTHORIZED, IN CASES WHERE UTILIZATION OF SERVICES OF VETERANS ADMINISTRATION CLINICS OR DESIGNATED DENTISTS IS NOT PRACTICABLE NOR ECONOMICAL.

"MEDICAL CONSULTANTS," FEE BASIS, WOULD BE PHYSICIANS RECOGNIZED AS AUTHORITIES IN THEIR RESPECTIVE FIELDS, EMPLOYED TO RENDER ADVISORY OPINION IN IMPORTANT QUESTIONS RELATED TO THE PRINCIPLES AND PRACTICE OF MEDICINE OR MEDICAL ADMINISTRATION.

IN VIEW OF THE FOREGOING, ADVICE IS REQUESTED WHETHER THE ABOVE MENTIONED CERTIFICATION AS TO CITIZENSHIP IS ESSENTIAL IN THE PAYMENT OF ACCOUNTS IN THE FOLLOWING CASES:

(A) DESIGNATED PHYSICIANS ON A FEE BASIS.

(B) DESIGNATED DENTISTS ON A FEE BASIS.

(C) PRIVATE PHYSICIANS ON A FEE BASIS.

(D) PRIVATE DENTISTS ON A FEE BASIS.

(E) MEDICAL CONSULTANTS ON A FEE BASIS.

WHILE THE TERM "COMPENSATION" IS BROAD ENOUGH TO INCLUDE FEES AND HAS BEEN SO CONSTRUED FOR CERTAIN PURPOSES (SEE 12 COMP. GEN. 219; 13 ID. 101; CF. 18 ID. 768), THE TERM "OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES" DOES NOT NECESSARILY INCLUDE EVERY PERSON WHO RECEIVES ANY COMPENSATION FROM THE GOVERNMENT.

IN DECISION OF OCTOBER 11, 1933, 13 COMP. GEN. 101, INVOLVING THE QUESTION OF WHETHER A PARTICULAR INDIVIDUAL WAS TO BE REGARDED AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT FOR PURPOSES OF DEDUCTIONS FROM COMPENSATION UNDER THE ECONOMY ACT, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WHERE A PARTICULAR REPORTER IS DESIGNATED OR OTHERWISE ENGAGED ON A PERSONAL SERVICE BASIS FOR AN INDEFINITE PERIOD AT SO MUCH PER DAY OR SO MUCH PER FOLIO, ETC., TO PERFORM ALL THE REPORTING SERVICES THAT MAY BE REQUIRED AT A GIVEN PLACE, THE COMPENSATION OR FEES HAVING BEEN FIXED UNDER SOME LAW, SCHEDULE, REGULATION, EXECUTIVE ORDER, OR DEPARTMENTAL ORDER IN FORCE PRIOR TO APRIL 1, 1933, SUCH INDIVIDUAL IS TO BE REGARDED AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT AND HIS COMPENSATION IS SUBJECT TO 15 PERCENT REDUCTION.

WHERE THERE IS STATUTORY AUTHORITY TO ENGAGE REPORTING SERVICES BY CONTRACT AND THE SERVICES ARE SO ENGAGED IN ACCORDANCE WITH THE LAWS RELATING TO SUCH CONTRACTS, THE RATE FIXED IN THE CONTRACT IS NOT SUBJECT TO 15 PERCENT REDUCTION, AND THE FACT THAT THE CONTRACT MAY BE AWARDED TO AN INDIVIDUAL WHO DOES ALL THE REPORTING HIMSELF DOES NOT NECESSARILY MAKE SUCH INDIVIDUAL AN OFFICER OR EMPLOYEE OF THE GOVERNMENT NOR THE COMPENSATION SUBJECT TO THE 15 PERCENT REDUCTION.

IN DECISION OF APRIL 15, 1938. 17 COMP. GEN. 847, 850, WHEREIN WAS CONSIDERED THE MEANING OF THE TERM "MEDICAL OFFICERS OF THE UNITED STATES," WITHIN THE MEANING OF SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 26, 1926, 44 STAT. 772, IT WAS STATED:

IF THE APPOINTMENT OR CONTRACT OF EMPLOYMENT OF AN ACTING ASSISTANT SURGEON OF THE PUBLIC HEALTH SERVICE DOES NOT LIMIT THE SERVICE TO BE FURNISHED, WHETHER FOR FULL TIME OR FOR PART TIME, AND THE COMPENSATION IS FIXED ON AN ANNUAL, MONTHLY, OR DAILY BASIS, HE IS TO BE REGARDED AS A MEDICAL OFFICER OF THE UNITED STATES WITHIN THE MEANING OF SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT, AS AMENDED, WHILE ENTITLED TO PAY AS AN ACTING ASSISTANT SURGEON.

IF THE APPOINTMENT OR CONTRACT OF EMPLOYMENT OF AN ACTING ASSISTANT SURGEON OF THE PUBLIC HEALTH SERVICE LIMITS THE SERVICE TO BE PERFORMED AND PROVIDES FOR COMPENSATION ON A FEE BASIS, HE IS NOT TO BE REGARDED AS A MEDICAL OFFICER OF THE UNITED STATES WITHIN THE MEANING OF SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT, AS AMENDED.

WITH THE UNDERSTANDING THAT "DESIGNATED" PHYSICIANS AND DENTISTS EMPLOYED ON A FEE BASIS, AS WELL AS THE PRIVATE PHYSICIANS AND DENTISTS AND MEDICAL CONSULTANTS SIMILARLY EMPLOYED, DO NOT DEVOTE THEIR ENTIRE TIME OR PART TIME DURING A PRESCRIBED TOUR OF DUTY TO THE WORK OF THE GOVERNMENT AND ARE NOT IN A STATUS WHICH WOULD REQUIRE THEM TO TAKE AN OATH OF OFFICE, BUT ARE ENGAGED ONLY IN CONNECTION WITH THE PARTICULAR CASE OR CASES REFERRED TO THEM BY DULY AUTHORIZED OFFICERS OF THE VETERANS' ADMINISTRATION, OR IN CONNECTION WITH CASES IN WHICH THEY ARE CALLED FOR SERVICE OR IN CONSULTATION, I HAVE TO ADVISE THAT THEY ARE NOT OFFICERS OR EMPLOYEES OF THE GOVERNMENT OF THE UNITED STATES WITHIN THE MEANING OF SECTION 5 OF THE ACT OF MAY 23, 1938, 52 STAT. 435, QUOTED IN YOUR LETTER, IN VIEW OF WHICH A CERTIFICATE AS TO CITIZENSHIP IS NOT ESSENTIAL TO AUTHORIZE PAYMENT OF EARNED FEES IN ANY OF THE FIVE CASES REFERRED TO IN THE CONCLUDING PARAGRAPH OF YOUR LETTER.