                VA’s Authority to Fill Certain Prescriptions
                      Written by Non-VA Physicians
The Department of Veterans Affairs is authorized to fill prescriptions written by non-VA physicians for
  veterans placed on VA waiting lists.

                                                                                         July 3, 2003

                  MEMORANDUM OPINION FOR THE GENERAL COUNSEL
                        DEPARTMENT OF VETERAN AFFAIRS

   You have asked us whether the Department of Veterans Affairs (“VA”) is
barred by statute from generally filling prescriptions written by non-VA physi-
cians for veterans on VA’s lengthy waiting list. For the reasons stated below, we
conclude that VA is not so barred.

                                                  I.

   You have advised us that the number of veterans who have requested care from
the VA is greatly in excess of the number that VA can care for at the present time.
As a result, the number of veterans who have to wait more than six months before
they can receive care in a VA facility has recently been above 200,000 and
remains very high. Some of these veterans have received care from non-VA
physicians and then sought to obtain the prescription medication benefits included
in VA’s uniform benefit package. But in light of legal opinions of VA’s Office of
General Counsel dating back to 1983, VA has generally declined to fill prescrip-
tions written by non-VA physicians. Instead, VA has required veterans with such
prescriptions to schedule examinations in the backlogged VA facilities. Such
examinations typically involve a months-long wait and impose additional burdens
on the VA system.
   In 1991, VA’s Office of General Counsel reissued as a “Precedent Opinion” an
opinion that it had previously issued in 1983. In that opinion, your Office deter-
mined that the provision then codified at 38 U.S.C. § 612(h) (1982)—and now
revised and codified at 38 U.S.C. § 1712(d) (2000)—was “the exclusive legal
authority for providing a veteran with drugs and medicines prescribed by the
veteran’s private physician, when the VA has no involvement, fee basis or
otherwise, in the treatment of the veteran.” Vet. Aff. Op. Gen. Couns. Prec. 41-91
(Mar. 11, 1991), 1991 VAOPGCPREC LEXIS 1183, at *14 (“1991 VA Opin-
ion”). In 2002, your Office considered whether intervening changes in the law—
particularly, the Veterans’ Health Care Eligibility Reform Act of 1996, Pub. L.
No. 104-262, 110 Stat. 3177 (1996) (“Eligibility Reform Act”)—altered the con-
clusion of your 1991 opinion and determined that they did not. Your Office
reaffirmed its position that “VA does not have legal authority to furnish veterans
with medications prescribed by private physicians when VA has no other in-



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         VA’s Authority to Fill Certain Prescriptions Written by Non-VA Physicians


volvement in the care of the veteran.” Vet. Aff. Op. Gen. Couns. Adv. 19-02
(2002) (“2002 VA Opinion”).

                                                II.

    Title 38 confers on the VA Secretary broad authority to determine the services
provided to veterans. Paragraphs (1) and (2) of section 1710(a) provide that the
Secretary “shall furnish” to particular classes of veterans those “medical services”
“which the Secretary determines to be needed.” 38 U.S.C. § 1710(a)(1), (2)
(2000). Paragraph (3) further provides that for any veteran not covered by
paragraphs (1) and (2), the Secretary “may . . . furnish . . . medical services . . .
which the Secretary determines to be needed.” Id. § 1710(a)(3). The statutory
definition of “medical services” includes, among other things, “medical examina-
tion, treatment, and rehabilitative services,” 38 U.S.C. § 1701(6) (Supp. I 2002).
    We believe that, except insofar as otherwise barred, the Secretary’s general
statutory authority is plainly broad enough to enable VA to fill prescriptions
written by non-VA physicians for veterans who have been placed on VA’s waiting
list for examinations. First, the filling of prescriptions is, or can reasonably be
determined to be, a “medical service” because it constitutes “treatment.” Compan-
ion provisions in this same statutory scheme recognize that medications are
“furnished . . . for the treatment of” disabilities and conditions, 38 U.S.C.
§ 1722A(a)(1) (2000), and that “such drugs and medicines as may be ordered on
prescription of a duly licensed physician” are part of the “treatment of [an] illness
or injury,” id. § 1712(d). Indeed, VA’s Office of General Counsel has itself stated
that “provision of drugs and medicines is medical treatment.” 1991 VA Opinion
at *6.1 Second, the Secretary has discretion to determine “to be needed” the filling
of prescriptions written by non-VA physicians for those veterans on VA’s waiting
list. Such a determination would (in the absence of any other bar) trigger the
Secretary’s duty under paragraphs (1) and (2) of section 1710(a), and his power
under paragraph (3) of that section, to have VA fill the prescriptions. Third, in
light of the existing backlog of veterans seeking VA care, a decision by the
Secretary to authorize VA to fill prescriptions written by non-VA physicians for
those veterans on VA’s waiting list would be consistent with the statutory
directive that “the Secretary shall, to the extent feasible, design, establish and
manage health care programs in such a manner as to promote cost-effective
delivery of health care services in the most clinically appropriate setting.” 38
U.S.C. § 1706(a) (2000).
    Your Office has suggested several possible reasons why this result might not
follow. First, invoking the maxim expressio unius est exclusio alterius, your Of-

   1
     Notwithstanding this statement, the 1991 VA Opinion relied on the absence of legislative history
and the expressio unius maxim discussed below to conclude that provision of drugs and medicines
ordered by private non-VA physicians is not medical treatment.




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                     Opinions of the Office of Legal Counsel in Volume 27


fice has read section 1712(d) as providing “the exclusive legal authority for
providing a veteran with drugs and medicines prescribed by the veteran’s private
physician, when the VA has no involvement, fee basis or otherwise, in the
treatment of the veteran.” 1991 VA Opinion at *6–*7, *14. We do not believe that
this is the best reading of section 1712(d). Section 1712(d) provides in part:

        The Secretary shall furnish to each veteran who is receiving addi-
        tional compensation or allowance under chapter 11 of this title, or
        increased pension as a veteran of a period of war, by reason of being
        permanently housebound or in need of regular aid and attendance,
        such drugs and medicines as may be ordered on prescription of a du-
        ly licensed physician as specific therapy in the treatment of any ill-
        ness or injury suffered by such veteran.

38 U.S.C. § 1712(d). In short, section 1712(d) specifically requires the filling of
prescriptions written by private physicians for certain classes of veterans. We note,
however, that it does not expressly provide that it sets forth the exclusive circum-
stances in which the Secretary is required to fill such prescriptions, much less the
exclusive circumstances in which the Secretary is allowed to fill such prescrip-
tions. Moreover, given the broad authority that section 1710(a) confers on the
Secretary, we do not think that the expressio unius canon applies here to require
that section 1712(d) be read as somehow implicitly limiting that broad authority.2
    Second, your Office has pointed to legislative history associated with the Eligi-
bility Reform Act—specifically, to a statement in the committee report of the
House bill that was merged with a Senate bill when the Act was passed. In the
context of refuting projections by the Congressional Budget Office (“CBO”) that
provisions of the bill would result in substantial new demand for VA medical
services and benefits, the House report stated: “It is critical to note that H.R. 3118,
like existing law, would not permit VA simply to serve as a veterans’ ‘drug store’,
providing medications, prosthetic devices, or other medical supplies prescribed by
a private physician who has no affiliation or contractual relationship with the VA.”
H.R. Rep. No. 104-690, at 17 (1996). This legislative history might be thought to
indicate that Congress did not intend section 1710(a) to authorize the Secretary to
provide the prescription services at issue.
    We do not find this legislative history probative of the meaning of section
1710(a). Insofar as it might be thought to mean that the Secretary may not provide
the prescription services at issue, we do not think that it can be squared with the
expansive text of section 1710(a). See Circuit City Stores, Inc. v. Adams, 532 U.S.

    2
      The fact that section 1712(d), unlike section 1710(a), appears to require filling of prescriptions
whether or not the Secretary determines the filling of the prescriptions to be necessary further suggests
that the obligation imposed under section 1712(d) is not of the same class or type as the obligations and
powers under section 1710(a). This would provide an additional reason why the expressio unius canon
would not apply.




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         VA’s Authority to Fill Certain Prescriptions Written by Non-VA Physicians


105, 119 (2001) (“As the conclusion we reach today is directed by the text of § 1,
we need not assess the legislative history of the exclusion provision.”); Ratzlaf v.
United States, 510 U.S. 135, 147–48 (1994) (“we do not resort to legislative
history to cloud a statutory text that is clear”). We note, further, that the statement
in the House report is not specifically addressed to section 1710(a) (or to any other
provision of the Act) but is instead designed to counter CBO’s $3 billion projec-
tions of the House bill’s costs. See H.R. Rep. No. 104-690, at 15, 17, 19. We
therefore consider it especially suspect. In any event, the prescription authorization
at issue here does not fit the “drug store” analogy. The prescription services at
issue here would be authorized only for “waiting list” veterans and only for drugs
“which the Secretary determines to be needed,” not for any veteran who wanted to
fill a prescription.
    Third, the 2002 opinion argues that the provision of law stating that the “prima-
ry function of the [Veterans Health] Administration is to provide a complete
medical and hospital service for the medical care and treatment of veterans,” 38
U.S.C. § 7301(b) (2000), “has historically been interpreted to mean that Congress
intended VA to furnish services needed to treat an eligible veteran through VA
facilities and personnel.” 2002 VA Opinion ¶ 8. Because VA would be providing
the “medical service” at issue—i.e., filling the prescriptions—through VA
facilities and personnel, we do not see how this argument has any bearing here.
    Finally, your Office has suggested that it would be anomalous for the Secretary
to be required to charge a copayment amount for medication furnished the veteran
“on an outpatient basis for the treatment of a non-service-connected disability or
condition,” 38 U.S.C. § 1722A(a)(1), but not to be required to be charged a
copayment for medication prescribed by a non-VA physician for such a disability
or condition. But any such anomaly vanishes if, as seems to us permissible,3 the
Secretary may regard the VA’s filling of a prescription issued by a non-VA
physician to be service “on an outpatient basis” for which a copayment would be
required under section 1722A(a)(1). In any event, even if that anomaly were to
remain, we would not see it as providing a sufficient basis for overriding our
reading of section 1710(a).

                                                      M. EDWARD WHELAN III
                                                    Acting Assistant Attorney General
                                                         Office of Legal Counsel




    3
      The VA regulations appear to contemplate only two broad categories of care or service: “inpatient
hospital care” and “outpatient medical care.” See 38 C.F.R. § 17.108(a)–(c). Since VA clearly would
not be furnishing the prescriptions in question on an “inpatient” basis, it is reasonable to conclude that
they are furnished on an “outpatient” basis.




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