B-257150.2 December 1, 1994

B-257150.2 December 1, 1994

Part-time Veterans Administration employee (psychiatrist), who was a provider under the Civilian Health and Medical Plan for the Uniformed Services (CHAMPUS), is advised that jurisdiction for consideration of CHAMPUS claims rests with the Secretary of Defense and not the General Accounting Office under provisions of 10 U.S.C. Sec. 1073 (1988), pursant to regulations published by the Secretary in 32 C.F.R. Part 199. CHAMPUS regulations prohibit government employees from participating as providers in CHAMPUS program and such regulations promulgated pursant to statutory authority have the force and effect of law and may not be waived.

Robert J. Daniell 1810 Homestead Avenue, N.E. Atlanta, Georgia 30306

Dear Mr. Daniell:

We refer to your letter of June 22, 1994, in which you again raise certain issues concerning the application of the "Dual Compensation Statute," 5 U.S.C. Secs. 5531-5537 (1988). You have also presented claims for reimbursement for services you provided under the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS).

Although you have now presented a money claim, this Office does not have the authority to settle CHAMPUS claims. As we advised you in our letter of May 9, 1994, the Secretary of Defense has the authority to administer the CHAMPUS program for the Armed Forces under the provisions of 10 U.S.C. Sec. 1073 (1988). The Secretary has also been authorized to promulgate regulations pertaining to the administration of the CHAMPUS program pursuant to statutory authority in 10 U.S.C. Secs. 1079, 1086 (1988), and has done so in 32 C.F.R. Part 199 (1993). Therefore, any claims for reimbursement for services provided to CHAMPUS providers must be made pursant to those regulations.

You say that you were terminated as a CHAMPUS provider retroactive to 1985, and told to repay the Federal government about $30,000 because of a policy that prohibits government employees from being CHAMPUS providers. This prohibition against government employees participating in the CHAMPUS program is more than a policy. The CHAMPUS regulations in 32 C.F.R. Part 199 specifically prohibit civilian employees, including part-time or intermittent, from receiving additional compensation from the government above their normal pay and allowances. 32 C.F.R. Sec. 199.9(e) (1992). A similar provision has been in effect in the CHAMPUS regulations since 1985. See, 32 C.F.R. Sec. 199.12(a) (3) (1985). Since this regulation was issued pursant to statutory authority, it has the force and effect of law and may not be waived. See, Woods Psychiatric Institute v. United States, 20 Cl. Ct. 324, at 334, 335 (1990); aff'd, 925 Fed.2d. 1454 (1991).

The record also shows that you have exhausted your administrative remedies. The Office of CHAMPUS denied your request for a hearing by letter of January 27, 1993, based on CHAMPUS regulations pertaining to appeal and hearing procedures which provide that an appeal cannot challenge the propriety, equity, or legality of a provision of law or regulation. See, 32 C.F.R. Sec. 199.10(a) (1993). As previously stated, you are specifically prohibited by regulation form participating in the CHAMPUS program. Therefore, since you have been precluded by regulation from pursing your claims administratively, your only recourse would be to file an action at law in the District Court or Court of Federal Claims, whichever is appropriate.

Accordingly, we are returning the file you have provided, and are closing our files in this matter.