B-82456, MARCH 18, 1949, 28 COMP. GEN. 528

B-82456, MARCH 18, 1949, 28 COMP. GEN. 528

MEDICAL TREATMENT - PRIVATE - OSTEOPATHIC TREATMENT ARMY APPROPRIATIONS FOR MEDICAL TREATMENT ARE NOW TO BE REGARDED AS AVAILABLE FOR PAYMENTS OTHERWISE PROPER, FOR THE SERVICES OF PROFESSIONALLY QUALIFIED OSTEOPATHS IN CASE WHERE ARMY PERSONNEL ON DUTY, FURLOUGH, OR LEAVE OF ABSENCE AT PLACES NOT HAVING GOVERNMENT MEDICAL AND HOSPITALIZATION FACILITIES AVAIL THEMSELVES OF SUCH SERVICES FOR NECESSARY MEDICAL CARE OR TREATMENT. 1 COMP. GEN. 730, AND OTHER PRIOR INCONSISTENT DECISIONS, NO LONGER WILL BE FOLLOWED.

DECISION BY ASSISTANT COMPTROLLER GENERAL YATES, MARCH 18, 1949:

THERE ARE BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIMS OF E. W. KOESTER, DOCTOR OF OSTEOPATHY, 37068 HURON RIVER DRIVE, NEW BOSTON, MICHIGAN, AND RIVERSIDE OSTEOPATHIC HOSPITAL, 165 GEORGE STREET, TRENTON, MICHIGAN, IN THE SUMS OF $36 AND $32.20, RESPECTIVELY, FOR PROFESSIONAL SERVICES AND HOSPITALIZATION RENDERED PRIVATE SIDNEY SNODDY, UNITED STATES ARMY, DURING THE PERIOD SEPTEMBER 15 TO 23, 1947, WHEN HE WAS SUFFERING FROM AN ILLNESS DIAGNOSED AS " BRONCHIAL ASTHMA, CHRONIC, WITH SUPERIMPOSED ALLERGIC PHENOMENA SYMPTOMS FROM RAGWEED POLLEN, ACUTE," IT APPEARING THAT SUCH ILLNESS BEGAN WHILE THE ENLISTED MAN WAS ON FURLOUGH FROM MD, 1257TH ASU, TILTON GENERAL HOSPITAL, FORT DIX, NEW JERSEY, SEPTEMBER 3 TO 17, 1947, AND THAT THE TREATMENT GIVEN HIM INCLUDING THE ADMINISTRATION OF OXYGEN AND DRUGS. THE DEPARTMENT OF THE ARMY TRANSMITTED SUCH CLAIMS TO THIS OFFICE FOR DIRECT SETTLEMENT BECAUSE OF DECISION OF THIS OFFICE DATED JUNE 10, 1922, 1 COMP. GEN. 730, WHEREIN IT WAS HELD THAT OSTEOPATHIC TREATMENT, PROCURED WITHOUT SPECIFIC OR GENERAL AUTHORITY, IS NOT SUCH MEDICAL TREATMENT AS IS AUTHORIZED TO BE PROCURED AT PUBLIC EXPENSE FROM PRIVATE PRACTITIONERS BY PERSONNEL OF THE ARMY ON DUTY WHERE MEDICAL SERVICE OF THE ARMY IS NOT AVAILABLE. IN SUCH DECISION IT WAS STATED THAT:

* * * PRACTITIONERS OF OSTEOPATHY ARE NOT APPOINTED IN THE MEDICAL CORPS OF THE ARMY AND OSTEOPATHIC TREATMENT IS NOT FURNISHED BY THE MEDICAL DEPARTMENT OF THE ARMY. IT IS ONLY MEDICAL CARE AND TREATMENT OF A KIND OR CHARACTER FURNISHED BY THE MEDICAL DEPARTMENT OF THE ARMY THAT IS AUTHORIZED BY THE REGULATION WITHOUT THE PRIOR APPROVAL OF THE SURGEON GENERAL--- THE EQUIVALENT OF THE SERVICE WHICH THE GOVERNMENT FURNISHES THROUGH THE MEDICAL DEPARTMENT. TREATMENT OTHER THAN THAT MUST, UNDER THE REGULATIONS, BE AUTHORIZED IN ADVANCE BY THE SURGEON GENERAL BEFORE THE GOVERNMENT IS OBLIGATED TO PAY THEREFOR, THAT HE MAY DETERMINE THE NECESSITY THEREFOR AND WHETHER EXISTING ARMY FACILITIES MAY SUPPLY ADEQUATE TREATMENT.

THE SURGEON GENERAL OF THE ARMY HAS REPORTED THAT INVESTIGATION HAS REVEALED DR. KOESTER IS A DOCTOR OF OSTEOPATHY, AND THAT CONDITIONS IN THE ARMY WITH REGARD TO OSTEOPATHIC PRACTITIONERS ARE NOW ESSENTIALLY THE SAME AS THEY WERE AT THE TIME THE SAID DECISION WAS RENDERED. HOWEVER, THE VOUCHERS COVERING BOTH OF THE CLAIMS HERE INVOLVED BEAR CERTIFICATES, SIGNED BY AN OFFICER OF THE MEDICAL SERVICE CORPS, U.S. ARMY, TO THE EFFECT THAT TREATMENT BY A CIVILIAN AGENCY WAS NECESSARY BECAUSE NO GOVERNMENT ( ARMY, NAVY, VETERANS' ADMINISTRATION, PUBLIC HEALTH SERVICE, OR INDIAN) FACILITY FOR TREATMENT WAS AVAILABLE.

WHILE THE PROVISIONS IN THE MILITARY APPROPRIATION ACTS FOR THE FISCAL YEARS 1948 AND 1949 (ACT OF JULY 30, 1947, 60 STAT. 560, AND ACT OF JUNE 24, 1948, 62 STAT. 657) FOR MEDICAL CARE AND TREATMENT OF ARMY PERSONNEL ARE NOT MATERIALLY DIFFERENT, INSOFAR AS THE PRESENT QUESTION IS CONCERNED, THEN THE COMPARABLE APPROPRIATION PROVISION CONSIDERED IN THE ABOVE-CITED DECISION OF JUNE 10, 1922, OTHER STATUTORY PROVISIONS, ENACTED SINCE 1922, TOGETHER WITH CHANGES IN CONDITIONS AND CIRCUMSTANCES WHICH HAVE OCCURRED SINCE THAT TIME, SEEM TO JUSTIFY A REEXAMINATION OF THE QUESTION WHETHER OR NOT MILITARY APPROPRIATIONS MAY BE CONSIDERED AVAILABLE FOR THE PAYMENT OF OSTEOPATHS FOR TREATMENT OF MILITARY PERSONNEL.

THE ACT OF AUGUST 2, 1946, IN SECTION 41 THEREOF, 60 STAT. 858, AUTHORIZES " THE PRESIDENT, IN HIS DISCRETION * * * TO APPOINT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, GRADUATES OF REPUTABLE SCHOOLS OF OSTEOPATHY AS COMMISSIONED MEDICAL OFFICERS IN THE NAVY.' LIKEWISE, SECTION 5 OF THE ACT OF FEBRUARY 28, 1948, 62 STAT. 40, PROVIDES THAT " GRADUATES OF COLLEGES OF OSTEOPATHY WHOSE GRADUATES ARE ELIGIBLE FOR LICENSURE TO PRACTICE MEDICINE OR OSTEOPATHY IN A MAJORITY OF THE STATES OF THE UNITED STATES * * * SHALL BE ELIGIBLE * * * FOR APPOINTMENT AS COMMISSIONED MEDICAL OFFICERS IN THE PUBLIC HEALTH SERVICE," AND SECTION 1 OF THE ACT OF JUNE 5, 1942, 56 STAT. 314, AUTHORIZES THE EMPLOYMENT IN THE MEDICAL DEPARTMENT OF THE ARMY OF INTERNES WHO ARE GRADUATES OF, OR HAVE SUCCESSFULLY COMPLETED AT LEAST FOUR YEARS' PROFESSIONAL TRAINING, IN REPUTABLE SCHOOLS OF MEDICINE OR OSTEOPATHY. WHILE OTHER STATUTORY PROVISIONS OF A SOMEWHAT SIMILAR CHARACTER HAVE BEEN ENACTED BY THE CONGRESS IN RECENT YEARS, THE CITED PROVISIONS SUFFICE TO INDICATE THE LEGISLATIVE POLICY RESPECTING THE APPOINTMENT OR EMPLOYMENT OF OSTEOPATHS IN THE MILITARY AND QUASI MILITARY SERVICES.

WHEN THE DECISION OF JUNE 10, 1922, WAS RENDERED, THE TREATMENT AT GOVERNMENT EXPENSE OF ARMY OFFICERS AND ENLISTED MEN IN PRIVATE HOSPITALS, OR BY CIVILIAN PHYSICIANS, WAS SPECIFICALLY PROHIBITED IF SUCH PERSONNEL WERE ON FURLOUGH WHEN RECEIVING THE TREATMENT AND, BY ANALOGY, SUCH PROHIBITION WAS EXTENDED TO OTHER SERVICES. HOWEVER, A PROVISION CONTAINED IN THE ACT OF APRIL 28, 1942, 56 STAT. 228, AND REPEATED IN SIMILAR TERMS IN SUBSEQUENT MILITARY APPROPRIATION ACTS, MARKED A REVERSAL OF THE PRIOR LEGISLATIVE POLICY BY PROVIDING "FOR NECESSARY MEDICAL CARE AND TREATMENT IN PRIVATE HOSPITALS OF MILITARY PERSONNEL WHETHER ON DUTY OR ON FURLOUGH OR LEAVE OF ABSENCE EXCEPT WHEN ELECTIVE MEDICAL TREATMENT HAS BEEN OBTAINED BY MILITARY PERSONNEL IN CIVILIAN HOSPITALS OR FROM CIVILIAN PHYSICIANS OR DENTISTS.' IN RECOGNITION OF THAT CHANGE IN LEGISLATIVE POLICY, THE RULE THERETOFORE APPLIED, BY ANALOGY, TO ENLISTED MEN OF THE NAVY WAS MODIFIED TO CONFORM TO THE STATUTORY AUTHORIZATIONS FOR PRIVATE MEDICAL TREATMENT OF ARMY PERSONNEL WHILE ON LEAVE OR FURLOUGH. SEE 23 COMP. GEN. 980, THE SYLLABUS OF WHICH IS AS FOLLOWS:

PRIOR DECISIONS OF THE ACCOUNTING OFFICERS NEGATIVING THE ALLOWANCE OF THE COST OF CIVILIAN MEDICAL CARE AND TREATMENT OF NAVY ENLISTED MEN SOLELY BECAUSE THEY WERE ON LEAVE OR LIBERTY AT THE TIME--- WHICH DECISIONS WERE BASED ON THE GENERAL LEGISLATIVE POLICY EXEMPLIFIED BY PROVISIONS IN ANNUAL ARMY APPROPRIATION ACTS PROHIBITING ALLOWANCE OF SUCH EXPENSES INCURRED BY ARMY OFFICERS OR ENLISTED MEN--- ARE NOT TO BE REGARDED AS APPLICABLE OR CONTROLLING SUBSEQUENT TO THE ENACTMENT OF THE ACT OF APRIL 28, 1942, WHICH MARKED A REVERSAL OF SUCH LEGISLATIVE POLICY BY AUTHORIZING PAYMENT FOR MEDICAL CARE OR TREATMENT OF ARMY PERSONNEL "WHETHER ON DUTY OR ON FURLOUGH OR LEAVE OF ABSENCE.'

PURSUANT TO THE PROVISIONS OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 495, WHICH ESTABLISHED THE NATIONAL MILITARY ESTABLISHMENT, THE MEDICAL AND HOSPITAL FACILITIES OF EACH OF THE MILITARY SERVICES ARE NOW AVAILABLE UNDER CONTROLLED CONDITIONS TO THE PERSONNEL OF THE OTHER SERVICES. WHILE IT IS UNDERSTOOD THAT THE MEDICAL DEPARTMENT OF THE ARMY HAS NOT UTILIZED THE SERVICES OF OSTEOPATHS AS COMMISSIONED MEDICAL OFFICERS IN THE ARMY, THE SERVICES OF OSTEOPATHS APPARENTLY ARE AVAILABLE TO ARMY PERSONNEL IN OTHER GOVERNMENT INSTALLATIONS AND FACILITIES.

FOR SUCH REASONS, IT IS CONCLUDED THAT ARMY APPROPRIATIONS FOR MEDICAL TREATMENT ARE NOW TO BE REGARDED AS AVAILABLE FOR PAYMENTS, OTHERWISE PROPER, FOR THE SERVICES OF PROFESSIONALLY QUALIFIED OSTEOPATHS IN CASES WHERE ARMY PERSONNEL ON DUTY OR FURLOUGH OR LEAVE OF ABSENCE AT PLACES WHERE GOVERNMENT MEDICAL AND HOSPITAL FACILITIES ARE NOT AVAILABLE MAY AVAIL THEMSELVES OF SUCH SERVICES FOR NECESSARY MEDICAL CARE OR TREATMENT. HENCE, THE CLAIMS HERE INVOLVED, IF CORRECT IN OTHER RESPECTS, WILL BE ALLOWED.

TO THE EXTENT THAT PRIOR DECISIONS OF THIS OFFICE (INCLUDING 1 COMP. GEN. 730, SUPRA), ARE INCONSISTENT WITH THE FOREGOING THEY WILL NOT BE FOLLOWED HEREAFTER.