B-166217, APRIL 21, 1969, 48 COMP. GEN. 681

B-166217, APRIL 21, 1969, 48 COMP. GEN. 681

FEES--PHYSICIANS--COURT APPOINTED--EXAMINE NARCOTICS ADDICTS WHEN A FEDERAL COURT AUTHORIZED TO EITHER APPOINT PRIVATE PHYSICIANS OR USE THE OFFICE OF THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) TO EXAMINE PERSONS WHO ARE VOLUNTARILY COMMITTED AS NARCOTICS ADDICTS UNDER TITLE III OF THE NARCOTIC ADDICT REHABILITATION ACT OF 1966 (42 U.S.C. 3411-3426), APPOINTS AND SELECTS PRIVATE PHYSICIANS, THE COMPENSATION OF THE COURT APPOINTED PRIVATE PHYSICIANS IS PAYABLE FROM THE APPROPRIATION APPEARING IN ANNUAL JUDICIARY ACTS UNDER THE HEADING "TRAVEL AND MISCELLANEOUS EXPENSES," FOR ALTHOUGH HEW BEARS THE COST OF EXAMINATIONS PERFORMED BY REGULAR OR CONTRACT PHYSICIANS OF THE SURGEON GENERAL'S OFFICE, THEIR APPROPRIATIONS ARE NOT AVAILABLE FOR THE PAYMENT OF COURT SELECTED PRIVATE PHYSICIANS OVER WHOM THEY HAVE NO CONTROL.

TO THE ATTORNEY GENERAL, APRIL 21, 1969:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 13, 1969 (AND ENCLOSURES), FROM THE DIRECTOR, OFFICE OF BUDGET AND ACCOUNTS, ADMINISTRATIVE DIVISION, DEPARTMENT OF JUSTICE, REQUESTING A DECISION AS TO WHAT APPROPRIATION IS AVAILABLE TO PAY PHYSICIANS APPOINTED BY FEDERAL COURTS TO EXAMINE PERSONS WHO MAY BE VOLUNTARILY COMMITTED AS NARCOTICS ADDICTS UNDER TITLE III OF THE NARCOTIC ADDICT REHABILITATION ACT OF 1966 (ACT), 80 STAT. 1444, 42 U.S.C. 3411-3426.

ENCLOSED WITH THE DIRECTOR'S LETTER WAS A MEMORANDUM PREPARED BY THE OFFICE OF LEGAL COUNSEL SETTING FORTH YOUR DEPARTMENT'S VIEWS IN THE MATTER. WE HAVE ALSO RECEIVED AND CONSIDERED THE VIEWS OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) AND THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.

EACH OF THE ABOVE MENTIONED FEDERAL AGENCIES HAS EXPRESSED THE VIEW THAT ITS APPROPRIATIONS ARE NOT AVAILABLE TO PAY PRIVATE PHYSICIANS APPOINTED BY FEDERAL COURTS UNDER TITLE III OF THE ABOVE-CITED ACT TO EXAMINE PERSONS WHO MAY BE DRUG ADDICTS. IN YOUR DEPARTMENT'S MEMORANDUM IT IS POINTED OUT THAT THE ACT PROVIDES THAT THE EXAMINING PHYSICIANS SHALL BE PAID "OUT OF SUCH FUNDS AS MAY BE PROVIDED BY LAW," BUT THAT THERE IS NO SUGGESTION IN THE ACT OR ITS LEGISLATIVE HISTORY AS TO WHICH AGENCY'S FUNDS SHOULD BE USED FOR THE PURPOSE IN QUESTION.

THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS APPEARS TO BE OF THE VIEW THAT HEW SHOULD BEAR THE COST OF THE EXAMINATION REQUIRED BY SECTION 303 WHETHER THE EXAMINATION IS CONDUCTED BY THE SURGEON GENERAL OR BY COURT APPOINTED PRIVATE PHYSICIANS. THE DEPARTMENT OF JUSTICE EXPRESSES THE VIEW THAT WHILE AUTHORITY MAY BE INFERRED FROM THE APPROPRIATIONS FOR HEW AND FOR THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, THE LATTER AGENCY'S APPROPRIATION MAY BE THE BETTER SOURCE OF FUNDS.

TITLE III OF THE NARCOTIC ADDICT REHABILITATION ACT OF 1966, RELATES TO PERSONS NOT CHARGED WITH ANY OFFENSE WHO SUBMIT THEMSELVES (OR ARE SUBMITTED BY RELATIVES) TO FEDERAL JURISDICTION AND REQUEST COMMITMENT FOR TREATMENT OF DRUG ADDICTION. SECTION 303 OF THE ACT, 42 U.S.C. 3413, READS AS FOLLOWS:

THE COURT SHALL IMMEDIATELY ADVISE ANY PATIENT APPEARING BEFORE IT PURSUANT TO AN ORDER ISSUED UNDER SUBSECTION (C) OF SECTION 3412 OF HIS RIGHT TO HAVE (1) COUNSEL AT EVERY STAGE OF THE JUDICIAL PROCEEDINGS UNDER THIS SUBCHAPTER AND THAT, IF HE IS UNABLE BECAUSE OF FINANCIAL REASONS TO OBTAIN COUNSEL, THE COURT WILL, AT THE PATIENT'S REQUEST, ASSIGN COUNSEL TO REPRESENT HIM; AND (2) PRESENT FOR CONSULTATION DURING ANY EXAMINATION CONDUCTED UNDER THIS SECTION, A QUALIFIED PHYSICIAN RETAINED BY SUCH PATIENT, BUT IN NO EVENT SHALL SUCH PHYSICIAN BE ENTITLED TO PARTICIPATE IN ANY SUCH EXAMINATION OR IN THE MAKING OF ANY REPORT REQUIRED UNDER THIS SECTION WITH RESPECT TO SUCH EXAMINATION. THE COURT SHALL ALSO ADVISE SUCH PATIENT THAT IF, AFTER AN EXAMINATION AND HEARING AS PROVIDED IN THIS SUBCHAPTER, HE IS FOUND TO BE A NARCOTIC ADDICT WHO IS LIKELY TO BE REHABILITATED THROUGH TREATMENT, HE WILL BE CIVILLY COMMITTED TO THE SURGEON GENERAL FOR TREATMENT; THAT HE MAY NOT VOLUNTARILY WITHDRAW FROM SUCH TREATMENT; THAT THE TREATMENT (INCLUDING POST HOSPITALIZATION TREATMENT AND SUPERVISION) MAY LAST FORTY-TWO MONTHS; THAT DURING TREATMENT HE WILL BE CONFINED IN AN INSTITUTION; THAT FOR A PERIOD OF THREE YEARS FOLLOWING HIS RELEASE FROM CONFINEMENT HE WILL BE UNDER THE CARE AND CUSTODY OF THE SURGEON GENERAL FOR TREATMENT AND SUPERVISION UNDER A POST HOSPITALIZATION PROGRAM ESTABLISHED BY THE SURGEON GENERAL; AND THAT SHOULD HE FAIL OR REFUSE TO COOPERATE IN SUCH POST HOSPITALIZATION PROGRAM OR BE DETERMINED BY THE SURGEON GENERAL TO HAVE RELAPSED TO THE USE OF NARCOTIC DRUGS, HE MAY BE RECOMMITTED FOR ADDITIONAL CONFINEMENT IN AN INSTITUTION FOLLOWED BY ADDITIONAL POST HOSPITALIZATION TREATMENT AND SUPERVISION. AFTER SO ADVISING THE PATIENT, THE COURT SHALL APPOINT TWO QUALIFIED PHYSICIANS, ONE OF WHOM SHALL BE A PSYCHIATRIST, TO EXAMINE THE PATIENT. FOR THE PURPOSE OF THE EXAMINATION, THE COURT MAY ORDER THE PATIENT COMMITTED FOR SUCH REASONABLE PERIOD AS IT SHALL DETERMINE, NOT TO EXCEED THIRTY DAYS, TO THE CUSTODY OF THE SURGEON GENERAL FOR CONFINEMENT IN A SUITABLE HOSPITAL OR OTHER FACILITY DESIGNATED BY THE COURT. EACH PHYSICIAN APPOINTED BY THE COURT SHALL, WITHIN SUCH PERIOD SO DETERMINED BY THE COURT, EXAMINE THE PATIENT AND FILE WITH THE COURT, A WRITTEN REPORT WITH RESPECT TO SUCH EXAMINATION. EACH SUCH REPORT SHALL INCLUDE A STATEMENT OF THE EXAMINING PHYSICIAN'S CONCLUSIONS AS TO WHETHER THE PATIENT EXAMINED IS A NARCOTIC ADDICT AND IS LIKELY TO BE REHABILITATED THROUGH TREATMENT. UPON THE FILING OF SUCH REPORTS, THE PATIENT SO EXAMINED SHALL BE RETURNED TO THE COURT FOR SUCH FURTHER PROCEEDINGS AS IT MAY DIRECT UNDER THIS SUBCHAPTER. COPIES OF SUCH REPORTS SHALL BE MADE AVAILABLE TO THE PATIENT AND HIS COUNSEL.

IN YOUR DEPARTMENT'S MEMORANDUM IT IS STATED THAT THE APPOINTMENT OF PHYSICIANS TO CONDUCT EXAMINATIONS UNDER TITLE III IS A MATTER FOR THE PARTICULAR FEDERAL COURT. IT FURTHER STATED THAT IT IS THE COURT WHICH DECIDES WHETHER TO UTILIZE THE SERVICES OF THE SURGEON GENERAL TO CONDUCT THE EXAMINATION OR TO APPOINT PRIVATE PHYSICIANS FOR THAT PURPOSE AND THAT IT IS THE COURT WHICH -- IF IT DECIDES ON PRIVATE PHYSICIANS -- SELECTS THE PRIVATE PHYSICIANS. THUS, IT APPEARS THAT SECTION 303 IS INTERPRETED AS AUTHORIZING THE COURT TO UTILIZE THE FACILITIES AND PHYSICIANS OF THE SURGEON GENERAL'S OFFICE (PUBLIC HEALTH SERVICE) OF HEW FOR THE PURPOSE OF CONDUCTING THE EXAMINATION REQUIRED BY SECTION 303 OR TO APPOINT PRIVATE PHYSICIANS TO CONDUCT SUCH EXAMINATION. ALSO, WE ARE ADVISED THAT IF PHYSICIANS OF THE SURGEON GENERAL'S OFFICE ARE USED TO CONDUCT THE EXAMINATION, HEW BEARS THE COST THEREOF. HOWEVER, AS INDICATED ABOVE, IN CASES WHERE THE COURT APPOINTS PRIVATE PHYSICIANS TO CONDUCT THE REQUIRED EXAMINATION THERE IS DISAGREEMENT AMONG THE THREE AGENCIES INVOLVED AS TO WHOSE APPROPRIATIONS ARE AVAILABLE TO PAY THE FEES OF THE PRIVATE PHYSICIANS.

SECTION 313 OF THE ACT, 42 U.S.C. 3423, PROVIDES THAT:

PHYSICIANS APPOINTED BY THE COURT TO EXAMINE ANY PERSON PURSUANT TO THIS SUBCHAPTER AND COUNSEL ASSIGNED BY THE COURT TO REPRESENT ANY PERSON IN JUDICIAL PROCEEDINGS UNDER THIS SUBCHAPTER SHALL BE ENTITLED TO REASONABLE COMPENSATION, IN AN AMOUNT TO BE DETERMINED BY THE COURT, TO BE PAID, UPON ORDER OF THE COURT, OUT OF SUCH FUNDS AS MAY BE PROVIDED BY LAW.

IT IS CLEAR FROM SECTION 313 THAT IF PRIVATE PHYSICIANS ARE APPOINTED BY THE COURT TO CONDUCT THE EXAMINATION REQUIRED BY SECTION 303, THE AMOUNT OF COMPENSATION TO BE PAID SUCH PHYSICIANS IS TO BE DETERMINED BY THE COURT AND THAT THE SURGEON GENERAL WOULD HAVE NO AUTHORITY TO FIX SUCH COMPENSATION. MOREOVER, WHILE SECTION 313 PROVIDES THAT THE COMPENSATION AUTHORIZED THERIN SHALL BE PAID "UPON ORDER OF THE COURT," THERE IS NOTHING IN THE STATUTE INVOLVED, OR ITS LEGISLATIVE HISTORY, TO INDICATE THAT THE COURT MAY ORDER THE SURGEON GENERAL TO MAKE THE REQUIRED PAYMENT.

IT IS CLEAR FROM WHAT IS STATED ABOVE THAT THE DECISION WHETHER TO APPOINT PRIVATE PHYSICIANS OR UTILIZE THE SURGEON GENERAL'S OFFICE TO CONDUCT THE EXAMINATION REQUIRED BY SECTION 303 RESTS WITH THE COURT AND NOT HEW. FURTHER, WHILE SECTION 314 (B) AUTHORIZES THE SURGEON GENERAL TO ENTER INTO ARRANGEMENTS WITH ANY PUBLIC OR PRIVATE AGENCY OR ANY PERSON, ON A REIMBURSABLE BASIS OR OTHERWISE, FOR THE EXAMINATION OR TREATMENT OF INDIVIDUALS PURSUANT TO TITLE III, IT IS OUR VIEW THAT SECTION 314 (B) IS APPLICABLE ONLY IN CASES WHERE THE SURGEON GENERAL IS RESPONSIBLE FOR EXAMINING OR TREATING THE PERSON INVOLVED, I.E; APPLICABLE ONLY TO THE FUNCTIONS OF THE SURGEON GENERAL. IN OTHER WORDS SECTION 314 (B) AUTHORIZES THE SURGEON GENERAL TO CONTRACT OUT SERVICES OR FUNCTIONS WHICH THE SURGEON GENERAL WOULD BE RESPONSIBLE FOR PERFORMING OR PROVIDING UNDER TITLE III. ALSO, WHILE THE CURRENT HEW APPROPRIATIONS ACT (PUBLIC LAW 90- 557) APPROPRIATES FUNDS TO HEW FOR EXPENSES NECESSARY FOR CARRYING OUT "* * * TO THE EXTENT NOT OTHERWISE PROVIDED * * * THE NARCOTIC ADDICT REHABILITATION ACT OF 1966 * *," IT IS AGAIN OUR VIEW THAT THIS APPROPRIATION IS AVAILABLE ONLY FOR EXPENSES ARISING OUT OF, OR WHICH ARE A NECESSARY OR PROPER INCIDENT OF, THE FUNCTIONS VESTED IN THE SURGEON GENERAL UNDER TITLE III OF THE ACT.

AS INDICATED ABOVE, IT IS THE COURT WHICH DECIDES WHETHER TO UTILIZE THE SERVICES OF THE SURGEON GENERAL OR PRIVATE PHYSICIANS TO CONDUCT THE EXAMINATION REQUIRED BY SECTION 303, AND, IF THE COURT DECIDES ON PRIVATE PHYSICIANS, IT SELECTS SUCH PHYSICIANS AND (UNDER SECTION 313) DETERMINES THE AMOUNT THEY ARE TO BE PAID FOR THE EXAMINATION. ACCORDINGLY, AND IN THE ABSENCE OF ANY STATUTORY LANGUAGE INDICATING THE APPROPRIATION TO BE USED TO PAY THE COSTS IN QUESTION, IT IS OUR VIEW THAT IF THE COURT APPOINTS PRIVATE PHYSICIANS TO CONDUCT THE EXAMINATION REQUIRED BY SECTION 303, THEIR COMPENSATION (FOR THE EXAMINATION) SHOULD BE PAID FROM THE APPROPRIATION APPEARING IN ANNUAL JUDICIARY APPROPRIATION ACTS UNDER THE HEADING "TRAVEL AND MISCELLANEOUS EXPENSES." FOR THE FISCAL YEAR 1969 THIS APPROPRIATION PROVISION READS, IN PART, AS FOLLOWS: FOR NECESSARY TRAVEL AND MISCELLANEOUS EXPENSES, NOT OTHERWISE PROVIDED FOR, INCURRED BY THE JUDICIARY * * *. JUDICIARY APPROPRIATION ACT, 1969, PUB. L. 90-470, 82 STAT. 685. TO HOLD THAT HEW SHOULD PAY THE COMPENSATION OF THE PRIVATE PHYSICIANS WOULD REQUIRE HEW TO PAY EXPENSES OVER WHICH IT HAS NO CONTROL.

A COPY OF THIS LETTER IS BEING FURNISHED THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, AND THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.