Secretary of Health, Education, and Welfare, B-160806
|08 March 1967
|THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE
|Comptroller General of the United States
Details - states, municipalities, etc. - state license fees the state license fees imposed on medical doctors employed by the public health service (PHS) who are detailed to states or local health agencies May not be reimbursed to the employees detailed to carry out state functions, absent statutory authority for the use of federal funds to defray the cost of a license fee, 42 U.S.C. 215, although authorizing the detail of personnel and providing for the use of appropriated funds and credit for the state service as though performed for PHS failing to include authority for the payment of a license fee, and 42 U.S.C. 246 (F), enacted to facilitate the interchange of medical personnel with state agencies excluding reference to a license fee in the enumeration of reimburseable items of cost, an omission inferred as intentional under the rule of statutory construction of a provision that designates persons and things.
Letter dated January 31, 1967, together with staff memorandum, from the acting secretary, concerns the use of appropriated funds to pay state license fees for medical doctors employed by the public health service (PHS), who are detailed or assigned to work with state or local health agencies.
The acting secretary states that:
When medical doctors employed by the public health service are detailed to work with state or local health agencies state law May require that they be licensed to practice medicine in the state to which they are so detailed. Many of these doctors are already licensed to practice medicine in another state and the additional license is of no personal benefit. Heretofore, this department has advised the doctors that, under decisions of your office, they must bear the expense of such medical licensure. The amendment of section 314 (F) of the public health service act, 42 U.S.C. Sec. 246 (F), by p.L. 89-749, is intended to facilitate and increase the interchange of medical personnel with state agencies. This increase will in turn increase the number of occasions on which public health doctors will be required to purchase medical licenses.
The staff memorandum prepared by your office of general counsel considers our decisions on the subject and advances a justification for the propriety of use of appropriated funds for the payment of such license fees in the circumstances described. The acting secretary asks reconsideration of our decisions that license fees May not be paid from appropriated funds, and, on the basis of the memorandum, requests that we approve such payments.
Pertinent facts and circumstances as well as your department's views in the matter, as disclosed by the memorandum, are set forth below.
Officers and employees of the public health service, both commissioned officers of the PHS commissioned corps and civil service employees, May be detailed to state or local health agencies under the authority of 42 U.S.C. 215 and 246 (F), the latter section as amended by section 3 of the comprehensive health planning and public health service amendments of 1966, public law 89-749, 80 Stat. 1180, 42 U.S.C. 246. These officers and employees May work in a program financed in whole or in part by a PHS grant or contract, or in a program financed and directed wholly by the state or local agency. In either case while the public health service is aware of the general nature of the state or local program, the specific duties given the officers or employees are determined by the state or local agency. Medical doctors so assigned May be given duties which, under state law or the policies of the agency to which assigned, require that they be licensed to practice medicine in the state to which they are assigned.
In many cases the detailed doctor is already licensed to practice in another state and (if a member of the commissioned corps fulfilling his military obligation) May intend to practice in the state in which he was so first licensed, or (if a career commissioned officer or civil service employee) May not intend to practice privately in the immediate future. Successive details May subject the doctor to repeated licensure requirements in the course of his public health service career. Commissioned officers are subject to orders and have no control over the nature or location of their assignments. The average cost of such licensure, for one already licensed, is $50 to $100.
It is pointed out in the memorandum that in several decisions we have disallowed payment of state license fees from appropriated funds on two independent grounds: (1) that the state May not lawfully require a license, under johnson v Maryland, 254, U.S. 51 (1920), and (2) that even if the license requirements is lawful the employee must bear the expense of qualifying for his position. 3 Comp.Gen. 663; 6 Id. 432; 31 Id. 81.
Your department agrees that appropriated funds May not be used to purchase a license which the united states supreme court has ruled the states May not lawfully require. It is pointed out in the memorandum that in the case of PHS detailed medical personnel, however, officers and employees of the public health service assigned to state or local health agencies work under wholly non-federal supervision. The view is expressed therein that in these cases the doctrine of johnson v. Maryland does not seem applicable because, when an employee is primarily engaged in carrying out a state function, the licensure requirement cannot be said to burden the performance of a federal function.
It is stated in the memorandum that while there remains the rule that an employee must bear the expense of qualifying for his position, this rule dates back at least to 1913 (66 m.S Comp. Dec. 247), and that your department has found only one decision applying it to a proposed purchase of a license where there was not the additional objection that the license constituted a state-imposed burden on the performance of a federal...
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