B-161852, JULY 14, 1967, 47 COMP. GEN. 54

B-161852, JULY 14, 1967, 47 COMP. GEN. 54

MEDICAL TREATMENT - OFFICERS AND EMPLOYEES - IMMUNIZATION AGAINST DISEASES UNDER 5 U.S.C. 7901, AUTHORIZING THE HEAD OF AN AGENCY TO ESTABLISH HEALTH SERVICE PROGRAMS BY CONTRACT OR OTHERWISE, WITHIN THE LIMITS OF AVAILABLE APPROPRIATIONS IF IN THE INTEREST OF THE UNITED STATES, IMMUNIZATION AGAINST SPECIFIC DISEASES WITHOUT CHARGE TO THE EMPLOYEE MAY BE APPROVED, SECTION 7901 (C) (4) PRESCRIBING PREVENTIVE PROGRAMS RELATING TO HEALTH, UPON THE RECORDING, PURSUANT TO BUDGET BUREAU CIRCULAR NO. A- 72, BY THE APPROPRIATE OFFICIAL OF A REASONABLE BASIS TO SUPPORT THE DETERMINATION FOR THE IMMUNIZATION OF EMPLOYEES. HOWEVER, THE PROBABILITY OF SUBSTANTIAL SAVINGS TO THE GOVERNMENT THROUGH PREVENTING LOSS OR IMPAIRMENT OF SERVICES IS MORE EVIDENT IN THE CASE OF INFLUENZA IMMUNIZATIONS THAN IMMUNIZATIONS FOR TETANUS AND SMALLPOX.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JULY 14, 1967:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 19, 1967, IN WHICH YOU REQUEST A DECISION AS TO WHETHER, UNDER THE PROVISION OF 5 U.S.C. 7901, AN AGENCY HEAD HAS AUTHORITY TO PROVIDE IMMUNIZATIONS TO EMPLOYEES WITHOUT CHARGE WHENEVER HE DECIDES THAT IT WILL BE TO THE GOVERNMENT'S INTEREST TO DO SO; OR IF NOT WHAT THE LIMITS OF HIS AUTHORITY WOULD BE.

AS STATED IN YOUR LETTER THE DECISIONS OF THIS OFFICE HAVE GENERALLY HELD THAT THE EXPENSES OF MEDICAL EXAMINATION OR TREATMENT INCLUDING INOCULATION OR VACCINATION, MAY BE PAID FROM APPROPRIATED FUNDS WHEN PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT RATHER THAN THE EMPLOYEE. COMP. GEN. 387; ID. 531, CITED IN YOUR LETTER, AS WELL AS THE CASES CITED IN THOSE DECISIONS MAKE THIS CLEAR. THEY ALSO MAKE CLEAR THAT THE FURNISHING OF MEDICAL TREATMENT FOR CIVILIAN EMPLOYEES OF THE GOVERNMENT IS PERSONAL TO THE EMPLOYEE AND THAT THE PAYMENT THEREOF FROM APPROPRIATED FUNDS IS UNAUTHORIZED UNLESS PROVIDED FOR IN THE CONTRACT OF EMPLOYMENT OR BY STATUTORY ENACTMENT OR BY VALID REGULATION.

THOSE DECISIONS HAD THEIR ORIGIN LONG PRIOR TO THE ENACTMENT OF THE ACT APPROVED AUGUST 8, 1946, PUBLIC LAW 658, 79TH CONGRESS, 60 STAT. 903, ORIGINALLY CODIFIED AS 5 U.S.C. 150 AND NOW CODIFIED AND REENACTED AS 5 U.S.C. 7901 WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) THE HEAD OF EACH AGENCY OF THE GOVERNMENT OF THE UNITED STATES MAY ESTABLISH, WITHIN THE LIMITS OF APPROPRIATIONS AVAILABLE, A HEALTH SERVICE PROGRAM TO PROMOTE AND MAINTAIN THE PHYSICAL AND MENTAL FITNESS OF EMPLOYEES UNDER HIS JURISDICTION.

(B) A HEALTH SERVICE PROGRAM MAY BE ESTABLISHED BY CONTRACT OR OTHERWISE, BUT ONLY---

(1) AFTER CONSULTATION WITH THE PUBLIC HEALTH SERVICE AND CONSIDERATION OF ITS ECOMMENDATIONS; AND

(2) IN LOCALITIES WHERE THERE ARE A SUFFICIENT NUMBER OF EMPLOYEES TO WARRANT PROVIDING THE SERVICE.

(C) A HEALTH SERVICE PROGRAM IS LIMITED TO---

(1) TREATMENT OF ON-THE-JOB ILLNESS AND DENTAL CONDITIONS REQUIRING EMERGENCY ATTENTION;

(2) PREEMPLOYMENT AND OTHER EXAMINATIONS;

(3) REFERRAL OF EMPLOYEES TO PRIVATE PHYSICIANS AND DENTISTS; AND

(4) PREVENTIVE PROGRAMS RELATING TO HEALTH.

(D) THE PUBLIC HEALTH SERVICE, ON REQUEST, SHALL REVIEW A HEALTH SERVICE PROGRAM CONDUCTED UNDER THIS SECTION AND SHALL SUBMIT COMMENT AND RECOMMENDATIONS TO THE HEAD OF THE AGENCY CONCERNED.

THIS PROVISION OF LAW SPECIFICALLY LIMITS THE HEALTH SERVICE PROGRAM TO (1) TREATMENT OF ON-THE-JOB ILLNESS AND DENTAL CONDITIONS REQUIRING EMERGENCY ATTENTION; (2) PREEMPLOYMENT AND OTHER EXAMINATIONS; (3) REFERRAL OF EMPLOYEES TO PRIVATE PHYSICIANS AND DENTISTS; AND (4) PREVENTIVE PROGRAMS RELATING TO HEALTH.

YOUR LETTER REFERS TO ITEM NO. (4) AND IT SEEMS CLEAR THAT THESE IMMUNIZATION PROGRAMS CANNOT QUALIFY UNDER ITEMS (1), (2) AND (3). THE LITERAL LANGUAGE OF ITEM (4), HOWEVER, IS SUFFICIENTLY BROAD TO ENCOMPASS IMMUNIZATIONS, AND THE LEGISLATIVE HISTORY OF THE ACT MAKES IT CLEAR THAT ONE ELEMENT OF THE PREVENTIVE PROGRAMS IS "CONTROL OF COMMUNICABLE DISEASES.' SEE H. REPT. NO. 516 AND S. REPT. NO. 743, 79TH CONG., ON H.R. 2716 WHICH WAS ENACTED AS PUBLIC LAW 658, SUPRA.

BUREAU OF THE BUDGET CIRCULAR NO. A-72 OF JUNE 18, 1965, TO WHICH YOU ALSO REFER IN YOUR LETTER HAS AS ITS SUBJECT FEDERAL EMPLOYEES OCCUPATIONAL HEALTH SERVICE PROGRAMS. IT ESTABLISHES CRITERIA TO BE FOLLOWED BY THE HEADS OF EXECUTIVE BRANCH DEPARTMENTS AND AGENCIES IN PROVIDING PROGRAMS OF HEALTH SERVICES UNDER THE 1946 ACT AND IN RELATING THEM TO PROGRAMS ESTABLISHED TO PROVIDE MEDICAL AND OTHER SERVICES AND TO ELIMINATE HEALTH RISKS UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT. THE SCOPE OF OCCUPATIONAL HEALTH SERVICE AUTHORIZED TO BE PROVIDED AT EACH WORK LOCATION AS DETERMINED BY THE HEAD OF THE DEPARTMENT OR AGENCY ACCORDING TO THE WORKING CONDITIONS AND NUMBER OF EMPLOYEES AT THE WORK LOCATION INCLUDES PREVENTIVE SERVICES "WITHIN THE COMPETENCE OF THE PROFESSIONAL STAFF * * * TO PROVIDE SPECIFIC DISEASE SCREENING EXAMINATIONS AND IMMUNIZATIONS AS THE DEPARTMENT OR AGENCY HEAD DETERMINES TO BE NECESSARY.'

THE CIRCULAR ALSO PROVIDES THAT THE "BASIS FOR ANY DETERMINATION MADE BY DEPARTMENTS AND AGENCIES AS TO * * * THE NEED FOR IN-SERVICE EXAMINATIONS, SCREENING EXAMINATIONS, AND IMMUNIZATION * * * WILL BE RECORDED.'

YOU HAVE BEEN SPECIFICALLY ASKED ABOUT IMMUNIZATION FOR INFLUENZA, TETANUS AND SMALLPOX. AS STATED IN YOUR LETTER THE PROBABILITY OF SUBSTANTIAL SAVINGS TO THE GOVERNMENT THROUGH PREVENTING LOSS OR IMPAIRMENT OF SERVICES IS MOST EVIDENT IN THE CASE OF INFLUENZA IMMUNIZATIONS.

IT IS OUR CONCLUSION THAT AN AGENCY HEAD HAS AUTHORITY UNDER 5 U.S.C. 7901 TO PROVIDE IMMUNIZATION AGAINST SPECIFIC DISEASES WITHOUT CHARGE TO EMPLOYEES WHENEVER HE DECIDES THAT IT WILL BE TO THE GOVERNMENT'S INTEREST TO DO SO AND RECORDS A REASONABLE BASIS TO SUPPORT SUCH DETERMINATION AS REQUIRED BY BUDGET CIRCULAR NO. A-72.