B-55437, MARCH 15, 1946, 25 COMP. GEN. 642

B-55437: Mar 15, 1946

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ADVERTISING - SERVICES OF PART TIME PHYSICIANS OF PUBLIC HEALTH SERVICE PUBLIC HEALTH SERVICE PHYSICIANS EMPLOYED ON A PART TIME BASIS AT MEDICAL RELIEF STATIONS WHO ARE SUBJECT TO CALL FOR EMERGENCY SERVICE AND WHOSE COMPENSATION IS FIXED ON AN ANNUAL BASIS AS SPECIFICALLY AUTHORIZED BY THE PROVISIONS OF SECTION 209 (F) OF THE PUBLIC HEALTH SERVICE ACT OF JULY 1. ARE NOT WITHIN THE PURVIEW OF THE GENERAL RULE (25 COMP. IS INAPPLICABLE IN THE CASE OF CONTRACTS TO BE ENTERED INTO BY THE PUBLIC HEALTH SERVICE FOR THE PART TIME PERSONAL SERVICES OF PHYSICIANS WHO WOULD BE REQUIRED TO FURNISH INCIDENTAL OFFICE SPACE AND EQUIPMENT OR SUPPLIES. A QUESTION HAS ARISEN AS TO THE APPLICATION OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 TO CERTAIN EMPLOYEES OF THE PUBLIC HEALTH SERVICE WHO ARE PAID ANNUAL COMPENSATION FOR PART- TIME EMPLOYMENT.

B-55437, MARCH 15, 1946, 25 COMP. GEN. 642

COMPENSATION; ADVERTISING - SERVICES OF PART TIME PHYSICIANS OF PUBLIC HEALTH SERVICE PUBLIC HEALTH SERVICE PHYSICIANS EMPLOYED ON A PART TIME BASIS AT MEDICAL RELIEF STATIONS WHO ARE SUBJECT TO CALL FOR EMERGENCY SERVICE AND WHOSE COMPENSATION IS FIXED ON AN ANNUAL BASIS AS SPECIFICALLY AUTHORIZED BY THE PROVISIONS OF SECTION 209 (F) OF THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944, ARE NOT WITHIN THE PURVIEW OF THE GENERAL RULE (25 COMP. GEN. 212) THAT, UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, PART TIME EMPLOYEES SHOULD BE PAID ON AN HOURLY BASIS, SO THAT SUCH PHYSICIANS MAY CONTINUE TO BE PAID ON AN ANNUAL BASIS. THE ADVERTISING FOR BIDS REQUIREMENT OF SECTION 3709, REVISED STATUTES, IS INAPPLICABLE IN THE CASE OF CONTRACTS TO BE ENTERED INTO BY THE PUBLIC HEALTH SERVICE FOR THE PART TIME PERSONAL SERVICES OF PHYSICIANS WHO WOULD BE REQUIRED TO FURNISH INCIDENTAL OFFICE SPACE AND EQUIPMENT OR SUPPLIES.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, MARCH 15, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 28, 1946, AS FOLLOWS:

IN VIEW OF YOUR DECISIONS OF JULY 28, 1945 (B-51099) AND OF AUGUST 22, 1945 (B-51571), REGARDING THE NECESSITY OF PAYMENT OF COMPENSATION ON THE BASIS OF HOURS ACTUALLY WORKED, A QUESTION HAS ARISEN AS TO THE APPLICATION OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 TO CERTAIN EMPLOYEES OF THE PUBLIC HEALTH SERVICE WHO ARE PAID ANNUAL COMPENSATION FOR PART- TIME EMPLOYMENT. WE REFER PARTICULARLY TO PHYSICIANS IN CHARGE OF PART- TIME MEDICAL RELIEF STATIONS, INCLUDING BOTH THOSE STATIONS WHICH SERVE BENEFICIARIES OF THE SERVICE GENERALLY AND THOSE WHICH SERVE A LIMITED CLASS OF BENEFICIARIES SUCH AS THE PERSONNEL OF THE COAST GUARD.

THE PRACTICE HAS BEEN TO APPOINT SUCH PHYSICIANS IN A PARTICULAR CIVIL SERVICE GRADE--- PS-3 OR PS-4, AND TO FIX THE ANNUAL COMPENSATION IN EACH CASE ON THE BASIS OF ESTIMATES OF THE ACTUAL TIME WHICH WILL BE REQUIRED FOR THE DISCHARGE OF THE DUTIES OF THE POSITION. IN ADDITION TO PROFESSIONAL SERVICES WHICH THESE PHYSICIANS ARE REQUIRED TO RENDER TO BENEFICIARIES OF THE SERVICE, THEY ARE RESPONSIBLE FOR SUBSTANTIAL ADMINISTRATIVE DUTIES. THEY MUST FAMILIARIZE THEMSELVES WITH THE REGULATIONS AND PROCEDURE OF THE SERVICE, MAKE DETERMINATIONS AS TO THE ELIGIBILITY OF APPLICANTS FOR CARE, MAKE MONTHLY REPORTS, PREPARE VOUCHERS COVERING EXPENDITURES INCIDENTAL TO MEDICAL CARE, AND SOLICIT BIDS ANNUALLY FOR CONTRACT HOSPITAL CASES AND RELATED SERVICES.

THE TIME WHICH THE PHYSICIAN MAY BE REQUIRED TO DEVOTE TO THE WORK OF THE SERVICE IS SUBJECT TO GREAT VARIATION, DEPENDING UPON THE NATURE AND EXTENT OF THE PROFESSIONAL SERVICES CALLED FOR. THESE SERVICES ARE PERFORMED, MOREOVER, UNDER CIRCUMSTANCES WHICH MAKE IT IMPRACTICAL TO SEGREGATE THE TIME WHICH THE PHYSICIAN DEVOTES TO PROFESSIONAL SERVICES FOR THE PUBLIC HEALTH SERVICE AND THAT DEVOTED TO HIS REGULAR PRACTICE. FOR EXAMPLE, THE PHYSICIAN'S OFFICE HOURS FOR THE RECEPTION OF PUBLIC HEALTH SERVICE BENEFICIARIES ARE ORDINARILY THE SAME AS THOSE FOR HIS PRIVATE PATIENTS. PROFESSIONAL VISITS ARE MADE TO CONTRACT HOSPITALS IN WHICH BOTH BENEFICIARIES OF THE SERVICE AND THE PHYSICIAN'S PRIVATE PATIENTS ARE HOSPITALIZED. EMERGENCY MEDICAL ATTENTION MAY BE REQUIRED AT ANY TIME AND UNDER A WIDE VARIETY OF CIRCUMSTANCES, AND THE RESPONSIBILITY OF THE PHYSICIAN FOR THE PATIENT IS OF COURSE A CONTINUING ONE, EVEN THOUGH THE ACTUAL TIME REQUIRED FOR THE DISCHARGE OF HIS RESPONSIBILITY IS LESS THAN FULL TIME. WHILE THE SERVICE REQUIRES THESE PHYSICIANS TO REPORT DAYS OF TOTAL ABSENCE FROM DUTY IN ANY PAY PERIOD, A MORE DETAILED REQUIREMENT OF TIME REPORTING, ON AN HOURLY BASIS, WOULD NOT ONLY BE IMPRACTICABLE BUT WOULD UNDOUBTEDLY MEAN THE LOSS TO THE SERVICE OF A NUMBER OF THESE PHYSICIANS WHOSE SERVICES COULD BE REPLACED, IF AT ALL, ONLY UNDER TERMS LESS ADVANTAGEOUS TO THE GOVERNMENT. IT WOULD,MOREOVER, BE IMPOSSIBLE TO DETERMINE THE COMPENSATION FOR SERVICES OF THIS NATURE ON AN HOURLY RATE BASIS. SOME OF THESE PHYSICIANS ARE SKILLED SURGEONS AND PERFORM OPERATIONS ON BENEFICIARIES. QUITE GENERALLY THEY FURNISH THEIR OWN OFFICE SPACE, SECRETARIAL SERVICES, EQUIPMENT, AND SUPPLIES WHICH ARE NOT A PART OF THE MEDICAL CARE ITSELF.

IN THE PUBLIC HEALTH SERVICE ACT APPROVED JULY 1, 1944, CONGRESS RECOGNIZED AND PROVIDED FOR THE PECULIAR PROBLEMS OF THE SERVICE IN THE EMPLOYMENT OF LESS THAN FULL-TIME PROFESSIONAL SERVICES IN THE FIELD. SECTION 209 (F) OF THE ACT PROVIDES:

" FIELD EMPLOYEES OF THE SERVICE, EXCEPT THOSE EMPLOYED ON A PER DIEM OR FEE BASIS, WHO RENDER PART-TIME DUTY AND ARE ALSO SUBJECT TO CALL AT ANY TIME FOR SERVICES NOT CONTEMPLATED IN THEIR REGULAR PART TIME EMPLOYMENT, MAY BE PAID ANNUAL COMPENSATION FOR SUCH PART-TIME DUTY AND, IN ADDITION, SUCH FEES FOR SUCH OTHER SERVICES AS THE SURGEON GENERAL MAY DETERMINE; BUT IN NO CASE SHALL THE TOTAL PAID TO ANY SUCH EMPLOYEE FOR ANY FISCAL YEAR EXCEED THE AMOUNT OF THE MINIMUM ANNUAL SALARY RATE OF THE CLASSIFICATION GRADE OF THE EMPLOYEE.'

THIS PROVISION, WHICH WAS NOT REPEALED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, WE VIEW AS AUTHORIZING THE PAYMENT OF A FIXED ANNUAL COMPENSATION TO PART-TIME FIELD EMPLOYEES. THIS MAKES IT POSSIBLE IN FIXING THE COMPENSATION TO TAKE INTO CONSIDERATION THE VARIOUS FACTORS INDICATED ABOVE AND TO AVOID THE NECESSITY OF ACCOUNTING FOR TIME WORKED WITHIN THE CONTRACT PERIOD ON AN HOURLY OR DAILY BREAK-DOWN.

THAT CONGRESS HAD IN MIND THE ADJUSTMENT ON A CONTRACT BASIS OF THE COMPENSATION OF EMPLOYEES SUBJECT TO THE PROVISION OF SUBSECTION (F) IS INDICATED QUITE CLEARLY BY THE STATEMENT ON THIS SUBSECTION FOUND ON PAGE 9 OF THE REPORT OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE ( H.R. REPORT NO. 1364, 78TH CONG., 2D SESSION):

" SUBSECTION (F) PROVIDES FOR THE COMPENSATION ON A CONTRACT BASIS OF FIELD EMPLOYEES OF THE SERVICE RENDERING PART-TIME DUTY AND SUBJECT TO CALL FOR ADDITIONAL SERVICES. THE PROVISION, WHICH RELATES PRIMARILY TO CONTRACT DOCTORS, IS TAKEN FROM 42 U.S.C. 67 WITH NO CHANGE EXCEPT THAT THE FEES FOR ADDITIONAL SERVICES ARE TO BE FIXED BY THE SURGEON GENERAL INSTEAD OF BY THE FEDERAL SECURITY ADMINISTRATOR.' (ITALICS SUPPLIED.)

IN YOUR DECISION OF AUGUST 22, 1945, B-51571, 25 COMP. GEN. 212, IT IS STATED:

" THEREFORE, IN THE ABSENCE OF A STATUTE PROVIDING OTHERWISE (COMPARE DECISION OF AUGUST 14, 1945, B-51244, 25 COMP. GEN. 185), ALL PART-TIME WORK OF EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT SHOULD BE PAID FOR UPON THE BASIS OF THE NUMBER OF HOURS ACTUALLY EMPLOYED, THE ANNUAL RATE FIXED BY THE CLASSIFICATION ACT FOR FULL-TIME EMPLOYEES TO BE DIVIDED PURSUANT TO THE FORMULA PRESCRIBED BY SECTION 604 (D) OF THE NEW PAY STATUTE, 59 STAT. 304, TO DETERMINE THE RATE PER R.'

IT IS ASSUMED THAT PART-TIME FIELD EMPLOYEES OF THE PUBLIC HEALTH SERVICE WHOSE COMPENSATION IS FIXED AS PROVIDED IN SECTION 209 (F) OF THE PUBLIC HEALTH SERVICE ACT ARE WITHIN THE EXCEPTION SUGGESTED ABOVE TO THE RULE OTHERWISE INDICATED REQUIRING PAYMENT ON THE BASIS OF THE NUMBER OF HOURS ACTUALLY EMPLOYED. IT IS OUR VIEW ALSO THAT SECTION 209 (F) APPLIES TO PART-TIME FIELD EMPLOYEES WHO ARE SUBJECT TO CALL AT ANY TIME FOR EMERGENCY OR PROFESSIONAL SERVICES REGARDLESS OF WHETHER, IN ADDITION TO A FIXED ANNUAL COMPENSATION, FEES ARE PROVIDED FOR SPECIAL SERVICES WHICH THEY MAY BE CALLED UPON TO PERFORM. IT IS TRUE THAT SUBSECTION (F) REFERS TO "THE MINIMUM ANNUAL SALARY RATE OF THE CLASSIFICATION GRADE OF THE EMPLOYEE.' THIS AMOUNT IS MADE A LIMITATION OF THE TOTAL AMOUNT WHICH MAY BE PAID TO THE EMPLOYEE; ITS APPARENT PURPOSE IS NOT THE FIXING OF A ,BASIS PER ANNUM COMPENSATION," AS THAT TERM IS USED IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, BUT RATHER IS TO PREVENT ABUSE OF THE AUTHORIZATION TO SUPPLEMENT WITH FEES THE ANNUAL COMPENSATION OF A CONTRACT EMPLOYEE; OTHERWISE A PART-TIME EMPLOYEE MIGHT BE PAID MORE THAN THE AMOUNT FOR WHICH FULL-TIME SERVICE MIGHT BE OBTAINED.

AT PRESENT THE COMBINED METHOD OF COMPENSATION AUTHORIZED BY SECTION 209 (F) IS IN USE IN SOME OF THE OPERATIONS OF THE SERVICE BUT SUPPLEMENTARY FEES ARE NOT NOW GENERALLY USED IN CONNECTION WITH THE PART-TIME MEDICAL STATIONS OF THE SERVICE. IT WOULD PROBABLY BE POSSIBLE, IN THE CASE OF THE PHYSICIANS IN CHARGE OF THESE PART-TIME MEDICAL STATIONS, TO FIX A LIMITED SCHEDULE OF HOURS FOR REGULAR PART TIME SERVICES PLUS A SCHEDULE OF FEES, WHICH OF COURSE WOULD NOT BE ON A TIME BASIS, FOR SUCH SERVICES AS THE PHYSICIAN MAY BE CALLED UPON TO RENDER OUTSIDE OF THE SCHEDULED PART-TIME HOURS. THIS WOULD INCREASE THE BURDEN OF RECORD-KEEPING WITHOUT ASSURANCE OF BENEFIT EITHER TO THE PHYSICIAN OR TO THE SERVICE, SINCE THE ACTUAL AMOUNT HE WOULD RECEIVE WOULD BE UNPREDICTABLE; SUCH AN ARRANGEMENT WOULD NOT BE ATTEMPTED FOR THE PHYSICIANS IN CHARGE OF THE PART-TIME STATIONS EXCEPT TO AVOID THE GREATER BURDEN OF COMPLETE RECORDS ON A TIME BASIS.

IF THERE IS OBJECTION TO THE PAYMENT PROCEDURES NOW FOLLOWED, THERE WOULD BE FOR CONSIDERATION ALSO THE POSSIBILITY OF CONTRACTING FOR SUCH SERVICES UNDER GENERAL IMPLIED AUTHORITY TO ENTER INTO CONTRACTS NECESSARY FOR CARRYING OUT THE FUNCTIONS OF THE SERVICE. ALTHOUGH THESE PHYSICIANS GENERALLY FURNISH OFFICE SPACE, EQUIPMENT, AND SUPPLIES IN CONNECTION WITH THEIR PROFESSIONAL SERVICES, SUCH CONTRACTS WOULD BE PREDOMINATELY AT LEAST FOR PERSONAL SERVICES, AND WOULD BE RESORTED TO ONLY WHEN THE USE OF REGULAR EMPLOYEES OF THE SERVICE WOULD NOT BE FEASIBLE; ACCORDINGLY THE EXCEPTION FOR "PERSONAL SERVICES" IN SECTION 3709 OF THE REVISED STATUTES WOULD APPEAR APPLICABLE. WE ARE FAMILIAR WITH YOUR DECISIONS IN 21 COMP. GEN. 486 AND 22 COMP. GEN. 700. THESE, HOWEVER, DID NOT INVOLVE PROFESSIONAL SERVICES OF THE CHARACTER WITH WHICH WE ARE HERE CONCERNED. CONTRACTS FOR MEDICAL SERVICES WOULD APPEAR TO BE WITHIN THE PRINCIPLES SUGGESTED IN 14 COMP. GEN. 909 IN WHICH IT WAS INDICATED THAT PROFESSIONAL SERVICES MAY BE SECURED BY CONTRACTING WITH INDIVIDUALS QUALIFIED TO RENDER SUCH SERVICES WHEN IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT BECAUSE OF HIGHLY TECHNICAL REQUIREMENTS, OR FOR OTHER REASONS, EMPLOYEES OF THE GOVERNMENT CANNOT BE USED TO ACCOMPLISH THE PURPOSE AUTHORIZED BY LAW. FURNISHING CERTAIN MEDICAL SERVICES AT CERTAIN LOCATIONS AT A COST OF LESS THAN THE SALARY OF A FULL-TIME PHYSICIAN, IN VIEW OF YOUR DECISIONS ABOVE REFERRED TO, IF APPLICABLE, CANNOT BE ACCOMPLISHED OTHERWISE THAN BY CONTRACTING WITH INDIVIDUAL PHYSICIANS FOR SUCH SERVICES. IN THIS CONNECTION ATTENTION IS CALLED TO THE FACT THAT UNDER PRESENT PROCEDURES COMPLIANCE WITH CLASSIFICATION REQUIREMENTS IS PURELY ILLUSORY. THE CLASSIFICATION ACT DOES NOT CONTEMPLATE THAT SALARIES ESTABLISHED THEREBY INCLUDE THE FURNISHING OF OFFICE SPACE, SECRETARIAL SERVICES, EQUIPMENT, AND SUPPLIES. FURTHERMORE, BY LIMITING THE SERVICES CONTEMPLATED IN REGULAR PART-TIME EMPLOYMENT AND ALLOWING FEES FOR OTHER SERVICES, THE ENTIRE ARRANGEMENT PRESENTLY IS ACTUALLY ONE RESULTING FROM BARGAINING, I.E. A CONTRACT ARRANGEMENT.

YOU ARE REQUESTED TO ADVISE THEREFORE AS TO WHETHER YOUR OFFICE WOULD BE REQUIRED TO OBJECT---

(1) TO THE PAYMENT, AS AT PRESENT, OF COMPENSATION ON A FIXED ANNUAL BASIS RATHER THAN ON AN HOURLY BASIS TO PHYSICIANS IN CHARGE AT PART-TIME STATIONS OF THE PUBLIC HEALTH SERVICE, REGARDLESS OF WHETHER FEES FOR SERVICES OF AN IRREGULAR OR EMERGENCY NATURE ARE PROVIDED FOR IN ADDITION?

(2) TO PAYMENTS, PURSUANT TO CONTRACTS FOR THE PERFORMANCE OF SERVICES, OF EITHER AN ANNUAL FIXED FEE AGREED UPON PAYABLE IN 12 MONTHLY INSTALMENTS OR SPECIFIC FEES FOR EACH TYPE OF SERVICE ACCORDING TO A FEE SCHEDULE AGREED UPON, BUT STIPULATING ALSO THE FURNISHING OF INCIDENTAL OFFICE SPACE, EQUIPMENT, OR SUPPLIES, SUCH CONTRACTS TO BE WITHOUT REGARD TO THE PROVISIONS OF THE CIVIL SERVICE LAWS AND CLASSIFICATION ACT OF 1923, AS AMENDED, AND WITHOUT ADVERTISING FOR BIDS?

YOUR ATTENTION IS CALLED TO SECTION 208 (C) OF THE PUBLIC HEALTH SERVICE ACT WHICH AUTHORIZES THE APPOINTMENT OF SPECIAL CONSULTANTS TO ASSIST AND ADVISE IN THE OPERATIONS OF THE SERVICE. BECAUSE OF THEIR CONTINUING ADMINISTRATIVE DUTIES, THE PHYSICIANS IN CHARGE OF THE PART TIME STATIONS HAVE NOT BEEN REGARDED AS WITHIN THE SCOPE OF THIS PROVISION.

SECTION 604 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 303, 304, PROVIDES:

SEC. 604. (A) IT SHALL BE THE DUTY OF THE HEADS OF THE SEVERAL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS AND AGENCIES IN THE EXECUTIVE BRANCH, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, TO ESTABLISH AS OF THE EFFECTIVE DATE OF THIS ACT, FOR ALL FULL-TIME OFFICERS AND EMPLOYEES IN THEIR RESPECTIVE ORGANIZATIONS, IN THE DEPARTMENTAL AND THE FIELD SERVICES, A BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS, AND TO REQUIRE THAT THE HOURS OF WORK IN SUCH WORKWEEK BE PERFORMED WITHIN A PERIOD OF NOT MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS.

(D) (1) HEREAFTER, FOR ALL PAY COMPUTATION PURPOSES AFFECTING OFFICERS OR EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH, THE JUDICIAL BRANCH, OR THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, BASIC PER ANNUM RATES OF COMPENSATION ESTABLISHED BY OR PURSUANT TO LAW SHALL BE REGARDED AS PAYMENT FOR EMPLOYMENT DURING FIFTY-TWO BASIC ADMINISTRATIVE WORKWEEKS OF FORTY HOURS.

(2) WHENEVER FOR ANY SUCH PURPOSE IT IS NECESSARY TO CONVERT A BASIC MONTHLY OR ANNUAL RATE TO A BASIC WEEKLY, DAILY, OR HOURLY RATE, THE FOLLOWING RULES SHALL GOVERN:

(A) A MONTHLY RATE SHALL BE MULTIPLIED BY TWELVE TO DERIVE AN ANNUAL RATE;

(B) AN ANNUAL RATE SHALL BE DIVIDED BY FIFTY-TWO TO DERIVE A WEEKLY RATE;

(C) A WEEKLY RATE SHALL BE DIVIDED BY FORTY TO DERIVE AN HOURLY RATE; AND (D) A DAILY RATE SHALL BE DERIVED BY MULTIPLYING AN HOURLY RATE BY THE NUMBER OF DAILY HOURS OF SERVICE REQUIRED.

IN THE DECISION OF AUGUST 22, 1945, B-51571, 25 COMP. GEN. 212, 216, IMMEDIATELY PRECEDING THE PORTION THEREOF QUOTED IN YOUR LETTER, IT WAS STATED:

* * * THAT REGULATION (SCHEDULE A, PART 1, PARAGRAPH 6, OF THE CIVIL SERVICE RULES AND REGULATIONS) FIXES MERELY A LIMITATION UPON THE SALARY OF PART-TIME EMPLOYEES WHO MAY BE APPOINTED WITHOUT COMPETITIVE EXAMINATION AND DOES NOT PRESCRIBE THE FORMULA FOR FIXING PER ANNUM SALARY RATES OF PART-TIME EMPLOYEES. NEITHER IS THERE ANY STATUTE HERE APPLICABLE THAT DOES SO. HOWEVER, FOR MANY YEARS THIS OFFICE HAS RECOGNIZED IN DECISIONS THAT PART-TIME SALARY RATES OF EMPLOYEES OCCUPYING POSITIONS SUBJECT TO THE CLASSIFICATION ACT MAY BE FIXED UPON A PER ANNUM BASIS WITH A PROPORTIONATE CREDIT FOR SUNDAYS AND HOLIDAYS ON WHICH NO WORK IS PERFORMED BY FULL-TIME EMPLOYEES. ALSO, THERE HAS BEEN STATED IN THE DECISIONS THE FORMULA FOR COMPUTING THE PER ANNUM PART-TIME SALARY RATE AND, ALSO, FOR INCREASING SUCH RATES UNDER THE PROVISIONS OF THE OVERTIME LAWS IN EFFECT PRIOR TO JULY 1, 1945. SEE, PARTICULARLY, 22 COMP. GEN. 1043. THE UNDERLYING REASON FOR THOSE DECISIONS WAS THAT COMPENSATION PRIOR TO JULY 1, 1945, WAS PAID FOR EVERY DAY OF THE YEAR INCLUDING SUNDAYS AND HOLIDAYS AND OTHER NONWORK DAYS FOR FULL-TIME EMPLOYEES AND, UPON THAT BASIS, IT WAS CONCLUDED THAT A PART-TIME EMPLOYEE SHOULD RECEIVE A PROPORTIONATE BENEFIT FOR COMPENSATION WHICH A FULL-TIME PER ANNUM EMPLOYEE WOULD HAVE RECEIVED ON SUNDAYS, HOLIDAYS, AND OTHER NONWORK DAYS ON WHICH NO WORK WAS PERFORMED. HOWEVER, SECTIONS 201 AND 604 OF THE NEW PAY STATUTE, 59 STAT. 296, 303, EFFECTIVE JULY 1, 1945, PROVIDING FOR DIVISION OF AN ANNUAL SALARY RATE INTO UNITS OF WEEKS AND HOURS OF EMPLOYMENT WITH NO CREDIT ALLOWED FOR ANY TIME NOT WORKED OR NOT OTHERWISE IN A LEAVE WITH PAY STATUS--- WHICH LATTER STATUS A PART-TIME EMPLOYEE CANNOT HAVE--- THERE NO LONGER EXISTS ANY REASONABLE BASIS FOR CONTINUING THE COMPUTATION AND PAYMENT OF PART-TIME SALARY RATES UPON A PER ANNUM BASIS. * * * AND IT WAS CONCLUDED THAT, IN THE ABSENCE OF A STATUTE PROVIDING OTHERWISE, COMPENSATION FOR ALL PART TIME EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, SHOULD BE PAID UPON THE BASIS OF THE NUMBER OF HOURS ACTUALLY EMPLOYED- - THE HOURLY RATE TO BE ASCERTAINED BY DIVIDING THE APPLICABLE PER ANNUM RATE ACCORDING TO THE FORMULA PRESCRIBED BY SECTION 604 (D), SUPRA.

PRIOR TO THE ENACTMENT OF THE PUBLIC HEALTH SERVICE ACT, APPROVED JULY 1, 1944, 58 STAT. 682, REFERRED TO IN YOUR LETTER, COMPENSATION FOR ALL PART- TIME FIELD EMPLOYEES OF THE PUBLIC HEALTH SERVICE--- OTHER THAN THOSE EMPLOYED ON A PER DIEM OR FEE BASIS--- WAS AUTHORIZED UNDER A PROVISION IN THE TREASURY DEPARTMENT APPROPRIATION ACT, 1938, APPROVED MAY 14, 1937, 50 STAT. 137, 148, WHICH READ AS FOLLOWS:

HEREAFTER FIELD EMPLOYEES OF THE PUBLIC HEALTH SERVICE, EXCEPT THOSE EMPLOYED ON A PER DIEM OR FEE BASIS, WHO RENDER PART-TIME DUTY AND ARE ALSO SUBJECT TO CALL AT ANY TIME FOR OTHER SERVICES, MAY BE PAID ANNUAL COMPENSATION FOR SUCH PART-TIME DUTY AND, IN ADDITION, SUCH FEES FOR SUCH OTHER SERVICES AS THE SECRETARY OF THE TREASURY MAY DETERMINE: PROVIDED, THAT THE TOTAL AMOUNT PAID TO ANY SUCH EMPLOYEE FOR ANY FISCAL YEAR SHALL IN NO CASE EXCEED THE AMOUNT OF THE MINIMUM ANNUAL SALARY RATE OF THE CLASSIFICATION GRADE OF THE EMPLOYEE.

IN HOUSE REPORT NO. 256, ACCOMPANYING H.R. 4720, WHICH SUBSEQUENTLY BECAME THE ACT OF MAY 14, 1937, SUPRA, IT WAS STATED AS FOLLOWS WITH RESPECT TO THE ABOVE-QUOTED PROVISION:

A PARAGRAPH IS RECOMMENDED TO MEET A DECISION OF THE COMPTROLLER GENERAL WITH RESPECT TO PART-TIME EMPLOYEES OF THE PUBLIC HEALTH SERVICE, EXCEPT THOSE EMPLOYED ON A PER DIEM OR FEE BASIS. THE PURPOSE OF THE LEGISLATION IS TO PERMIT THE CONTINUANCE OF A PRACTICE LONG IN VOGUE IN THE SERVICE OF HIRING ON AN ANNUAL BASIS, AT LESS THAT REGULAR ANNUAL RATES FOR FULL-TIME EMPLOYEES, PERSONNEL WHO RENDER ONLY PART TIME DUTY BUT WHERE SOMEONE MUST BE ON CALL AT ALL TIMES. THE PRACTICE IS AN ECONOMICAL ONE INVOLVING THE RETAINER FOR ALL SERVICES RENDERED OR THE RETAINER FOR CERTAIN STATED CLASSES OF SERVICES PLUS FEES FOR SPECIAL SERVICES. ALSO, ON PAGES 772, ET SEQ., OF THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, ON BILL H.R. 4720, THERE APPEAR THE FOLLOWING STATEMENTS RESPECTING THE QUOTED PROVISION:

DR. DRAPER. THAT ADDITIONAL LANGUAGE IS RECOMMENDED IN ORDER TO MEET THE OBJECTIONS OF THE GENERAL ACCOUNTING OFFICE AND HAS TO DO WITH THE PRACTICE THAT WE HAVE HAD IN VOGUE FOR A LONG TIME IN THE EMPLOYMENT OF CERTAIN TYPES OF PERSONNEL. THE STATIONS OF THE SERVICE, SUCH AS THE SMALLER QUARANTINE STATIONS FIND IT NECESSARY TO HAVE SOMEONE ON DUTY AND SUBJECT TO CALL ALL THROUGH THE DAY THROUGHOUT THE YEAR, WHERE THE AMOUNT OF WORK IS REALLY NOT SUFFICIENT TO JUSTIFY THE EMPLOYMENT OF FULL-TIME PERSONNEL. FOR EXAMPLE, AT ONE OF THE SMALL STATIONS ON THE SOUTH ATLANTIC COAST IT IS NECESSARY THAT A MEDICAL OFFICER BE AVAILABLE FOR THE CARE AND TREATMENT OF COAST GUARD PERSONNEL, AND SO ON, AND TO ACT ALSO AS QUARANTINE OFFICER. THIS OFFICER WOULD BE ON CALL AT ANY TIME TO PERFORM NECESSARY DUTIES AND, ON OCCASIONS IT MIGHT BE NECESSARY FOR HIM TO BE ON DUTY 24 HOURS A DAY AND ON OTHER DAYS THERE MIGHT BE NO ACTIVE DUTY FOR HIM TO PERFORM AT ALL. I HAVE A NUMBER OF ILLUSTRATIONS OF THAT SORT.

THE ONLY ECONOMICAL AND DESIRABLE WAY OF HANDLING THESE CASES IS THE PAYMENT OF AN ANNUAL SALARY COVERING ALL OF THE SERVICES RENDERED, OR PAYMENT OF ANNUAL SALARY PLUS FEES FOR SPECIAL SERVICES.

MR. LUDLOW. THAT WOULD BE IN THE NATURE OF AN ANNUAL RETAINER AND THEN IN THE CASE OF SPECIAL SERVICES CERTAIN FEES IN ADDITION TO THE RETAINER? IS THAT THE IDEA?

DR. DRAPER. YES, SIR. BUT THIS PRACTICE WHICH HAS BEEN FOLLOWED FOR A CONSIDERABLE TIME HAS RECENTLY NOT MET WITH THE APPROVAL OF THE GENERAL ACCOUNTING OFFICE. IT IS JUST AN EFFORT TO ENABLE US TO CONTINUE THE PRACTICE WE HAVE FOLLOWED IN THE PAST.

IN THE LIGHT OF THE FOREGOING, IT CLEARLY APPEARS THAT THE 1937 STATUTE WAS INTENDED TO AUTHORIZE COMPENSATION UPON AN ANNUAL BASIS FOR ALL PART- TIME EMPLOYEES OF THE PUBLIC HEALTH SERVICE OTHER THAN THOSE PAID UPON A PER DIEM OR FEE BASIS, REGARDLESS OF THE FACT THAT SOME OF SUCH EMPLOYEES MIGHT NOT BE PAID, IN ADDITION TO ANNUAL COMPENSATION, FEES FOR EXTRA OR EMERGENCY SERVICES WHICH THEY MIGHT BE REQUIRED TO PERFORM. SEE 17 COMP. GEN. 303. THAT STATUTE HAVING BEEN REPEALED BY THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944, AND THERE HAVING BEEN ENACTED IN SUBSTITUTION THEREFOR SECTION 209 (F) OF THE LATER ACT, 58 STAT. 687, WHICH, AS STATED IN HOUSE REPORT 1364, QUOTED IN PART IN YOUR LETTER, WAS TAKEN FROM THE 1937 STATUTE WITH NO CHANGE OTHER THAN THAT AUTHORIZING THE SURGEON GENERAL RATHER THAN THE FEDERAL SECURITY ADMINISTRATOR TO FIX FEES FOR ADDITIONAL SERVICES, IT FOLLOWS THAT, WHILE THE LANGUAGE OF THE TWO STATUTES IS NOT IDENTICAL IN ALL OTHER RESPECTS, THE PROVISIONS OF THE LATER ACT MUST BE VIEWED AS COVERING THE SAME CLASSES OF EMPLOYEES AS THOSE COVERED BY THE EARLIER ACT. HENCE, THE VIEW EXPRESSED IN YOUR LETTER THAT SECTION 209 (F) OF THE 1944 STATUTE AUTHORIZES COMPENSATION ON A PER ANNUM BASIS FOR PART-TIME FIELD EMPLOYEES WHO ARE SUBJECT TO CALL AT ANY TIME FOR EMERGENCY OR PROFESSIONAL SERVICES--- IRRESPECTIVE OF THE FACT THAT NO PROVISION IS MADE FOR THE PAYMENT TO THEM OF FEES FOR SPECIAL SERVICES--- APPEARS CORRECT. CONSEQUENTLY, SINCE THERE EXISTS EXPRESS STATUTORY AUTHORITY FOR THE PAYMENT OF COMPENSATION ON AN ANNUAL BASIS FOR PART-TIME FIELD EMPLOYEES OF THE PUBLIC HEALTH SERVICE, SUCH AS REFERRED TO IN YOUR LETTER, SUCH EMPLOYEES ARE NOT WITHIN THE RULE STATED IN THE DECISION OF AUGUST 22, 1945, SUPRA, AND NO CHANGE IN THE PRACTICE HERETOFORE FOLLOWED ADMINISTRATIVELY IN THE PAYMENT OF THEIR COMPENSATION IS REQUIRED.

IT WOULD APPEAR FROM YOUR LETTER THAT THE METHOD OF PROCURING SERVICES OF PART-TIME PHYSICIANS BY CONTRACT IS SUGGESTED AS AN ALTERNATIVE TO THE METHOD PRESENTLY IN USE ONLY IN THE EVENT THAT THE PRESENT METHOD SHOULD BE FOUND TO BE OBJECTIONABLE BY THIS OFFICE. HOWEVER, IN THAT CONNECTION, IT MAY BE STATED THAT, SHOULD IT BE DETERMINED ADMINISTRATIVELY MORE ADVANTAGEOUS TO THE GOVERNMENT TO EMPLOY THE PART-TIME SERVICES OF PHYSICIANS UPON A CONTRACT BASIS UNDER THE CONDITIONS SET OUT IN YOUR LETTER, RATHER THAN UPON THE PRESENT PER ANNUM SALARY BASIS, THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, RESPECTING ADVERTISING WOULD NOT BE FOR APPLICATION. COMPARE 14 COMP. GEN. 909; 19 ID. 849. ACCORDINGLY, QUESTIONS (1) AND (2) ARE ANSWERED IN THE NEGATIVE.