B-159325, FEB 28, 1972, 51 COMP GEN 536

B-159325, FEB 28, 1972, 51 COMP GEN 536

VETERANS ADMINISTRATION - EMPLOYEES - MEDICAL AND SURGERY - QUALIFICATIONS - LICENSING THE USE BY THE VETERANS ADMINISTRATION'S DEPARTMENT OF MEDICINE AND SURGERY OF PHYSICIANS WHO HAVE BEEN GRANTED A TEMPORARY OR LIMITED LICENSE TO PRACTICE MEDICINE, SURGERY, OR OSTEOPATHY, FROM A STATE WHERE THE APPROPRIATE STATE BOARD HAS MADE A DETERMINATION THAT THE APPLICANT IS PROFESSIONALLY QUALIFIED TO PRACTICE IN THAT STATE, BUT DOES NOT QUALIFY FOR A REGULAR LICENSE, BECAUSE HE HAS NOT COMPLIED WITH VARIOUS TECHNICAL REQUIREMENTS - EITHER STATUTORY OR ADMINISTRATIVE - SUCH AS RESIDENCY OR CITIZENSHIP REQUIREMENTS, MAY BE CONTINUED FOR A PERIOD NOT TO EXCEED 18 MONTHS IN VIEW OF THE INABILITY OF THE DEPARTMENT TO HIRE MEDICAL PERSONNEL WITH PERMANENT OR UNRESTRICTED LICENSES, PROVIDED THAT THE VA ALSO DETERMINES IN ACCORDANCE WITH 38 U.S.C 4106(A) THAT THE INDIVIDUAL INVOLVED IS PROFESSIONALLY QUALIFIED TO PRACTICE MEDICINE, SURGERY OR OSTEOPATHY.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, FEBRUARY 28, 1972:

YOUR LETTER OF DECEMBER 17, 1971, WITH ENCLOSURES, REQUESTS OUR ADVICE AS TO WHETHER PHYSICIANS WHO HAVE BEEN GRANTED TEMPORARY OR LIMITED MEDICAL LICENSES, MAY BE CONSIDERED TO BE LICENSED TO PRACTICE AS REQUIRED BY 38 U.S.C. 4105, WHICH PROVIDES:

(1) PHYSICIAN -

HOLD THE DEGREE OF DOCTOR OF MEDICINE OR OF DOCTOR OF OSTEOPATHY FROM A COLLEGE OR UNIVERSITY APPROVED BY THE ADMINISTRATOR, HAVE COMPLETED AN INTERNSHIP SATISFACTORY TO THE ADMINISTRATOR, AND BE LICENSED TO PRACTICE MEDICINE, SURGERY, OR OSTEOPATHY IN A STATE ***

(A) ANY PERSON TO BE ELIGIBLE FOR APPOINTMENT TO THE FOLLOWING POSITIONS IN THE DEPARTMENT OF MEDICINE AND SURGERY MUST HAVE THE APPLICABLE QUALIFICATIONS:

THE PERTINENT FACTS, AS DESCRIBED IN YOUR LETTER, ARE:

THERE ARE A NUMBER OF STATES WHICH GRANT FORMS OF TEMPORARY OR LIMITED LICENSES WITHOUT HAVING REQUIRED THE PHYSICIAN TO PASS A PROFESSIONAL EXAMINATION, EXAMPLES OF WHICH ARE WEST VIRGINIA AND CALIFORNIA. *** AFTER THE APPROPRIATE STATE BOARD HAS MADE A DETERMINATION THAT THE INDIVIDUAL APPLICANT IS, IN FACT, PROFESSIONALLY QUALIFIED TO PRACTICE MEDICINE, IT WILL ISSUE HIM A LICENSE TO PRACTICE MEDICINE IN A PARTICULAR VA HOSPITAL, AS IN THE CASE OF WEST VIRGINIA, OR IT WILL ISSUE HIM LICENSE TO PARTICIPATE IN THE PROFESSIONAL ACTIVITIES OF THE APPROVED MEDICAL SCHOOL AND IN THE PROGRAMS OF THE AFFILIATED HOSPITALS CONDUCTED BY THE MEDICAL SCHOOL, AS IN THE CASE OF CALIFORNIA. THE APPLICANT HAS NOT YET TAKEN THE STATE MEDICAL LICENSE EXAMINATION, USUALLY BECAUSE HE HAS NOT COMPLIED WITH VARIOUS TECHNICAL REQUIREMENTS, EITHER STATUTORY OR ADMINISTRATIVE, SUCH AS A PRESCRIBED PERIOD OF RESIDENCY IN THE STATE, OR A REQUIREMENT OF U.S. CITIZENSHIP.

YOU REFER TO OUR DECISION OF AUGUST 1, 1966, B-159325, WHEREIN WE HELD THAT A CERTIFICATE OF REGISTRATION ISSUED UNDER THE PROVISIONS OF 2 D.C. CODE 133 COULD NOT BE CONSIDERED A LICENSE TO PRACTICE MEDICINE IN THE DISTRICT OF COLUMBIA FOR THE PURPOSES OF 38 U.S.C 4105. WE STATED THEREIN THAT:

*** THIS IS SO BECAUSE THE ACT DOES NOT PROVIDE THAT THE CERTIFICATE IS A LICENSE TO PRACTICE MEDICINE BUT MERELY THAT CERTIFICATES MAY BE ISSUED TO MEDICAL OFFICERS OF THE FEDERAL GOVERNMENT AS EVIDENCE OF THE FACT THAT THE LAW PERMITS THEM TO PRACTICE MEDICINE IN THEIR OFFICIAL CAPACITY IN THE DISTRICT OF COLUMBIA WITHOUT A DISTRICT OF COLUMBIA LICENSE.

YOU STATE THAT YOUR DEPARTMENT OF MEDICINE AND SURGERY HAS HIRED A NUMBER OF INDIVIDUALS WITH TEMPORARY OR LIMITED LICENSES IN AREAS WHERE PHYSICIANS WITH PERMANENT UNRESTRICTED LICENSES COULD NOT BE OBTAINED. YOU SUGGEST THAT OUR 1966 DECISION MAY BE DISTINGUISHED FROM THE INSTANT SITUATION ON THE BASIS THAT THE STATES HERE INVOLVED HAVE DETERMINED THAT THE INDIVIDUAL APPLICANT IS, IN FACT, PROFESSIONALLY QUALIFIED TO PRACTICE MEDICINE, WHEREAS IN OUR 1966 CASE, THE PHYSICIAN'S QUALIFICATIONS WERE NOT CONSIDERED OR EXAMINED PRIOR TO THE ISSUANCE OF THE CERTIFICATE OF REGISTRATION.

YOU ASK WHETHER THIS OFFICE WOULD BE REQUIRED TO OBJECT TO THE VETERANS ADMINISTRATION (VA) CONTINUING INDIVIDUALS, WHO HAVE BEEN GRANTED TEMPORARY OR LIMITED LICENSES, ON ITS ROLLS FOR A PERIOD NOT TO EXCEED 18 MONTHS TO ENABLE THEM TO COMPLETE THE STATUTORY REQUIREMENTS FOR PERMANENT OR UNRESTRICTED LICENSES OR UNTIL THEY CAN BE REPLACED WITH FULLY LICENSED INDIVIDUALS IN A FEASIBLE MANNER WHICH WILL NOT SERIOUSLY AFFECT THE VA'S ABILITY TO CONTINUE TO TREAT VETERANS IN STATES WHERE FULLY LICENSED PHYSICIANS ARE DIFFICULT TO RECRUIT.

WE AGREE THAT THE INSTANT SITUATION IS DISTINGUISHABLE FROM OUR 1966 DECISION IN THAT THE STATES INVOLVED HAVE DETERMINED THAT THE INDIVIDUAL APPLICANT, IS IN FACT, PROFESSIONALLY QUALIFIED TO PRACTICE MEDICINE, ETC., WHEREAS IN OUR 1966 CASE THE PHYSICIAN'S QUALIFICATIONS WERE NOT EXAMINED PRIOR TO THE ISSUANCE OF THE CERTIFICATE OF REGISTRATION. ALSO, AS DISTINGUISHED FROM THE PRACTICE OF THE DISTRICT OF COLUMBIA, SOME STATES ISSUE TEMPORARY OR LIMITED LICENSES TO INDIVIDUALS WISHING TO PRACTICE IN A HOSPITAL (OR ELSEWHERE) OPERATED BY OTHER THAN THE VA OR OTHER FEDERAL AGENCY, SO THAT IT IS CLEAR THAT SUCH LICENSES ARE NOT ALWAYS ISSUED SOLELY BECAUSE THE PHYSICIAN IS EMPLOYED BY THE UNITED STATES.

ALSO WE HAVE CONSIDERED IN CONNECTION WITH THE MATTER 38 U.S.C. 4106(A), WHICH PROVIDES:

(A) APPOINTMENT OF PHYSICIANS, DENTISTS, AND NURSES SHALL BE MADE ONLY AFTER QUALIFICATIONS HAVE BEEN SATISFACTORILY ESTABLISHED IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE ADMINISTRATOR, WITHOUT REGARD TO CIVIL- SERVICE REQUIREMENTS.

CONSIDERING THE FOREGOING, WE WOULD HAVE NO OBJECTION TO THE VA CONTINUING ON ITS ROLLS FOR A PERIOD NOT TO EXCEED 18 MONTHS, PHYSICIANS WHO HAVE BEEN GRANTED A TEMPORARY OR LIMITED LICENSE TO PRACTICE MEDICINE, SURGERY OR OSTEOPATHY, FROM A STATE WHERE THE APPROPRIATE STATE BOARD HAS MADE A DETERMINATION THAT THE APPLICANT IS, IN FACT, PROFESSIONALLY QUALIFIED TO PRACTICE MEDICINE, ETC., IN THAT STATE, BUT DOES NOT QUALIFY FOR A REGULAR LICENSE, BECAUSE HE HAS NOT COMPLIED WITH VARIOUS TECHNICAL REQUIREMENTS - EITHER STATUTORY OR ADMINISTRATIVE - SUCH AS RESIDENCY OR CITIZENSHIP REQUIREMENTS, PROVIDED THAT THE VA ALSO DETERMINES - IN ACCORDANCE WITH 38 U.S.C. 4106(A) - THAT THE INDIVIDUAL INVOLVED IS PROFESSIONALLY QUALIFIED TO PRACTICE MEDICINE, SURGERY OR OSTEOPATHY.

THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.