B-69616 November 19, 1947

B-69616: Nov 19, 1947

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In carrying out the foregoing the Surgeon General is authorized to. To individuals for such research projects as are recommended by the National Advisory Health Council. Their approval is subject to recommendation by the National Advisory Mental Health Council. That he is authorized. There is authorized for this purpose the making of research grants in aid to "public institutions.". In which it was held that grants under said section 301 are not limited to grants for research projects. Such as are specifically authorized by subsection (d). To adopt such "additional means" as he deems necessary or appropriate grants may be made as well for other purposes determined by the Surgeon General to be necessary to carry out the purposes for which grants are to be made.

B-69616 November 19, 1947

The Administrative, Federal Security Agency.

My dear Mr. Ewing:

Consideration has been given to your letter of September 15, 1947, referring to section 301 of the Public Health Services Act, which, as amended by the National Mental Health Act, 60 Stat. 423 42 U.S.C.A. 241, provides, in relevant part, as follows:

"The Surgeon General shall conduct in the Service, and encourage, cooperate with, and render assistance to other appropriate public authorities, scientific institutions, and scientists in the conduct of, and promote the coordination of, research, investigations, experiments, demonstrations, and studies relating to the causes, diagnosis, treatment, control, and prevention of physical and mental diseases and impairments of man, including water purification, sewage treatment, and pollution of lakes and streams. In carrying out the foregoing the Surgeon General is authorized to--

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"(d) Make grants in aid to universities, hospitals laboratories and other public or private institutions, and to individuals for such research projects as are recommended by the National Advisory Health Council, or, with respect to cancer, recommended by the National Advisory Cancer Council, or, with respect to mental health, recommended by the National Advisory Mental Health Council;

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"(g) Adopt, upon recommendation of the National Advisory Health Council, or, with respect to cancer, upon recommendation of the National Advisory Cancer Council, or, with respect to mental health, upon recommendation of the National Advisory Mental Health Council, such additional means as he deems necessary or appropriate to carry out the purposes of this section."

Your letter states that the Public Health Service has received applications for research projects from the Department of Health of the District of Columbia, and expects to receive similar applications from State and municipal health departments; that the requests from the District of Columbia involve the operation of clinics for persons suffering from mental disorders and would be considered by the Service to be eligible for consideration as research projects only if conducted under controls necessary for the accumulation of data of scientific validity, and that, as research projects, their approval is subject to recommendation by the National Advisory Mental Health Council, as provided in section 301(d) of the Public Health Service Act, supra.

Your letter states further that said section 301 constitutes broad authority to the Surgeon General for the conduct in the Service of research and related activities; that he is authorized, also, to render assistance to "other appropriate public authorities" in the conduct of similar activities, and that, under subsection (d) thereof, there is authorized for this purpose the making of research grants in aid to "public institutions." You suggest that the health department of a State of a political subdivision of a State and, also, the Department of Health of the District would constitute "public authorities" within the meaning of the term as used above, but express a doubt that such health departments would constitute "public institutions" within the meaning of subsection (d), so as to make them eligible applicants for grants thereunder. You refer to the decision of this Office dated June 23, 1947, B-66327, in which it was held that grants under said section 301 are not limited to grants for research projects--such as are specifically authorized by subsection (d)--but that, in view of the authority vested in the Surgeon General under subsection (g) of section 301, to adopt such "additional means" as he deems necessary or appropriate grants may be made as well for other purposes determined by the Surgeon General to be necessary to carry out the purposes for which grants are to be made, it is also not exclusive as to the type of bodies to which grants may be made for research purposes, and that it would seem to follow that research grants might be made, pursuant to the procedures prescribed by subsection (g), to a State or local health department regardless of whether these are or are not to be regarded as "institutions."

Your letter states that it would follow also, so far as appears from the Public Health Services Act, as amended, that grants might be made to departments and institutions of the Federal Government, which are in a position to conduct research in the mental health field, and to the District of Columbia. You point out that a distinguishing feature applicable to Federal and District agencies and institutions is that their activities also are financed by moneys which are made available for expenditure by Federal appropriates, and that this was one of the factors considered in the decision of this Office published in 23 Comp. Gen. 694, in which it was held that funds appropriated under the nurse training act of June 15, 1943, 57 Stat. 153, as amended, were not available for grants to Federal Institutions. However, it is suggested that, in said case, the allotment of funds would have served to augment the appropriations made directly for the operation of the schools of nursing in the Federal institutions, and the pattern of the act as a whole and its history seemed to negative an intent to provide for grants to such institutions. You state that grants for specific research projects, which are made only upon recommendation of a national advisory council, and for the purposes specified in section 301 of the Public Health Service Act, would not seem to be open to the same objection as grants for the operation of health services which are directly and regularly provided for by congressional appropriation; that section 301 provides a means for evaluating meritorious research project, and that the objectives of the section would, in the opinion of the Surgeon General, be forwarded if agencies of the several States, the Federal Government and the District are not excluded from making application.

Your letter requests to be advised whether this Office would be required to object to grants for research projects, otherwise proper, for carrying out the purpose of section 301 of the Public Health Service Act, as amended, to be made

(1) to the health (or other) department of a State of a subdivision of a State,

(2) to the Department of Health (or other branch of the Government) of the District of Columbia

(3) to any department of any institution of the Federal Government for specific projects within the authority of such department or institution but for which no specific appropriation is available.

Aside from the fact that judicial precedent would seem to support the view that State and municipal health departments, as organized activities created or established by law or public authority, are "public institutions" within the meaning of section 301(d), supra (see State v. Clausen, 148 P. 28, holding that a State highway department, the fisheries department, and the State fair are public institutions), I think that the cited decision of this Office dated June 23, 1947, B-66327, constitutes ample precedent for the proposed grants to State and municipal health departments. That is to say, the board general power vested in the Surgeon General by subsection (g) of said section 301 to adopt, with respect to mental health, upon the recommendation of the National Advisory Mental Health Council, "such additional means as he deems necessary or appropriate to carry out the purposes of this section," provides a substantial basis for the view that grants of funds are not required to be restricted to the classes specified in subsection (d)of section 301, but that grants may be made to similar classes in any case where it is determined by the Surgeon General that such section is necessary to carry out the purposes and objectives of section 301.

Accordingly, and in view of the broad purpose of the National Mental Health Act, as stated in section thereof, 60 Stat. 421--to assist and foster research activities relating to the cause, diagnosis and treatment of psychiatric disorders by public agencies--I have to advise that, if it be determined by the Surgeon General that the proposed grant of funds to State or municipal health departments is necessary to carry out the purposes of section 301, with respects to mental health, no objection will be interposed to the payment thereof from available appropriations.

With respect to the making of such a grant to the Department of Health of the District of Columbia, since there can be no doubt that said Department is an instrumentality of the District of Columbia and not a Federal institution operated with Federal funds (compare 24 Comp. Gen. 796), grants for research projects likewise may be made to said Department of Health upon the same basis.

However, examination of the terms of the Public Health Service Act, as amended, and study of its legislative history, does not disclose any provision or a single decisive fragment of evidence that grants or assistance of any kind to departments or agencies of the Federal Government were intended and, such being the case, I am constrained to the view that grants to such departments or agencies are not authorized under the law, irrespective of whether or not specific appropriations for such purposes have been made available to said departments or agencies.

Respectfully,

LINDSEY C. WARREN Comptroller General of the United States