We have had this report from the outside experts in the medical profession. We would now like to hear from labor and management, because of the direct connection between our Department and the maritime community.

Well, we did a study which has been distributed to the Congress, two volumes of it, and this is what I hold up here. We were allowed to survey the hospitals. I want to tell you just three things that happened on that survey. And we pointed this out to Senator Lister Hill and his committee this morning.

The Congress had appropriated funds for additional equipment in the hospitals for the operating room, that is, radiation treatment and so forth. We visited the Staten Island Hospital and found they couldn't install the equipment purchased by funds which the Congress had appropriated, because they couldn't put wires in the baseboards, they couldn't bring in heavier wiring in order to operate these machines.

Now the Staten Island Hospital has an overhanging roof, and this staff had improvised by going to the roof and dropping down over the sides, like spaghetti, these long cables and then bringing them in through the windows. All of this was because of this order which said no capital improvements, no major repairs.

At the Chicago hospital we found an emergency generator which had been purchased from the U.S. Air Force as surplus. It couldn't be utilized because they wanted to install it in a room where there were two old boilers that had not been used for 10 to 15 years, but to remove the boilers and renovate that room would be a capital improvement, so consequently they couldn't install the emergency generator.

Now we were told it is a must in operating room procedures to have emergency power so if the power goes off, you don't risk the life of a patient, and yet that is what we found in Chicago. They couldn't install it.

I am sure the distinguished chairman will recall that in Seattle the 11th floor of that building was vacant, when the University of Washington had a plan to develop the research program in connection with the hospital there, and they couldn't do it, because they couldn't rearrange the floor, they couldn't put in extra walls or tear down walls. That was a capital improvement. Consequently it wasn't until Senator Magnuson got hold of this thing and brought it to light that it was corrected.

Now this is the kind of deteriorating thing that has been practiced by the Bureau over these years, with the thought, I am sure, that eventually they want to relieve the Government of this whole responsibility.

Now I would like to turn to a reply made by the Bureau to the Honorable Senator Cooper, who wrote about this condition on June 3, 1958. Now this is the same identical year in which this order of the Bureau of the Budget was issued. But look what the Bureau says to Senator Cooper:

It is by no means the intention of the Bureau of the Budget to abolish the Public Health Service hospitals through the medium of budgetary attrition. The Bureau of the Budget does not intend to use the budgeting process to reduce or impair this level of care.

In a further response to Senator Cooper the Bureau of the Budget replied under date of July 11, 1958, as follows:

Under the law the Federal Government has an obligation to provide medical care for merchant seamen and we intend to see that this responsibility is carried out effectively and that seamen receive good medical and hospital care.

I submit that neither one of those replies is in accordance with the facts. Nor is it in accord with the action taken on April 16, 1958, when this order went out. Mr. Haddock and I were visiting the hospitals at that time, and we saw the deteriorating effects of this order all over the hospitals.

Now they may say today some of these hospitals may not deserve to be saved. Well, when Poland was overrun in the last war, and after it was raped and burned, the German Chancellor went over and looked at it and said "It is no longer worth saving." I don't mean to make that a plain and direct analogy, but it has its points.

If they continue, by these limiting orders-and the orders limited funds far beyond what this Congress gave; funds were appropriated by this Congress and were not used in many, many cases-then you cannot help but come up with this result. The intent here has been from the beginning to either do away with the marine hospitalization program or to get rid of the program by first transferring it into some other agency.

I think there is a more important issue here and that is where does the authority of the Congress end, and where does the authority of the Executive begin in this matter? May I remind you that the Honorable Warren G. Magnuson, chairman of the Committee on Independent Offices, a few years ago, I think only 2 or 3 years ago, held a hearing and this matter came up. He pointed out some of the deteriorating effects of what was going on at that time in these hospitals. His language was quite clear, and the language of the entire committee report which was adopted was quite clear. It indicated this should not continue, and used the words to the effect that

This is not a matter of abstract Executive determination, because it has been a longstanding policy of the Congress of the United States. It is not a purely abstract authority which resides with the executive department.

Well, that doesn't seem to have been followed very well. But even after that date, I want to point out what happened in the committee before whom we just now testified this morning, the Subcommittee on Appropriations, and I will read this statement. This is dated August 17, 1964, and reads as follows:

The U.S. Committee on Appropriations for the Departments of Labor, Health, Education, and Welfare, and related agencies, noted in 1964 that funds for repairs and maintenance of the Public Health Service hospitals were included in the 1965 estimates, but that the amounts and projects requested appear to reflect only the minimum necessary for emergency repairs to keep the hospitals in operation. Many of the Public Health Service hospitals are obsolete and overcrowded and in need of major modernization.

The committee then took an affirmative position. It stated:

The committee will therefore expect to be presented with a plan for the modernization of the entire Public Health Service hospital system before January 1, 1965, and expects the 1966 budget estimates will contain the funds necessary to initiate this plan.

Now that is from the U.S. Senate Committee on Appropriations for the Departments of Labor, Health, Education, and Welfare and related agencies, Report No. 1460, August 17, 1964, to accompany H.R. 10809, page 27.

Mr. Chairman, that was only last August. Now do we get a plan for modernizing hospitals as requested by the Appropriations Committee of the Senate? We do not. What we do get is an announcement on January 19 by the Secretary of Health, Education, and Welfare that he is closing 7 out of 12 hospitals. I mean, where does the Congress end and the executive department begin? I am confused, as a layman, as you will observe.

Now they talked about constitutionality a while ago. Is it constitutional when the Congress in 1798 adopted and adhered to a strong policy of marine hospitalization to have it practically eliminated by deterioration and a lack of support on the part of the executive? Is that constitutional? Is it constitutional for them to spin a wheel and say "We are going to eliminate seven and keep five"? What is the virtue of five and seven? It might well have been eight and four or six and six. There is no virtue in that. The hospitals should be examined on their merits. But apparently that is constitutional. Apparently it is constitutional to close Chicago and Memphis, when the whole House of Representatives told them not to do it. But yet in considering this law, you have to be very careful that you don't treat on the constitutionality of what the executive department happens to think is constitutional.

Now let me turn to one other thing. I hold here in my hand the report of the subcommittee of the House, the Honorable John Fogarty's Subcommittee on Appropriations, and I will make this brief. It will read only the pertinent clauses:

This proposal runs counter to the current effort to improve the health of the Nation by wider dissemination of medical skills and facilities. A net reduction over the next 2 years, under executive proposals, of approximately 3,000 beds in the veterans' hospitals, and Public Health Service combined is not the answer to the problem of improving the health of the Nation and certainly not the veterans and the merchant seamen for whom the Government has made special provision.

Now here is the real power to this report.

The committee can see no justification for closing any of the Public Health Service hospitals under current conditions and will look with extreme disfavor on any action to do so, unless a resurvey of this matter brings to light new information to support this action.

He didn't say "until." He said "unless." That report, Mr. Chairman, was approved by the full Committee on Appropriations in the House and the appropriation bill was passed by the House of Representatives.

Now that says they will look with "extreme disfavor." Maybe under the Constitution that is all you can do in the legislative, to look with "extreme disfavor." But I am glad they looked.

Now what happened as a result of this? Mr. Chairman, they immediately closed Chicago. They turned the key. The patients have gone, the staff has gone, and the door is locked. They are now closing Memphis. It will be closed I think before the middle of next week. This has been the answer to these three important positions taken by the Congress of the United States.

I don't know whether my information is completely accurate, but I think it is fairly so, when I tell you that Congressman Bonner, of

the Merchant Marine and Fisheries Committee of the House, who wrote a letter to the General Accounting Office on this. The reply from General Accounting Office was twofold: One, that maybe it is legal to close seven, and keep five open. I think this is questionable. We will file with your permission a statement on the law as developed by our counsel, and I hope you will see fit to let me insert that in the record.

Now the second thing that the General Accounting Office did was to say that seamen cannot be placed above non-service-connected disability cases. In other words, they can't be placed above any veteran. Now this is the crux of the whole case. The whole idea of the Bureau of the Budget was that they give seamen preference, because marine hospitalization must be, Mr. Chairman, turned to the needs of the shipper. You can't wait 6 weeks on a waiting list when you are expected to rejoin the ship on schedule. This is the crux of the whole case. If the seamen cannot be placed above non-service-connected disability cases, then where are the seamen going to be taken care of, because most of the veterans' hospitals have a long, long waiting list of non-service-connected disability cases. But here is the pinch. They have already closed Chicago.

Apparently they were depending on the fact that they can get preference for seamen, and now they can't. They closed Memphis depending on the same thing, and now they can't make good. So where do the seamen in the Midwest go now? Where do they go? This is a dilemma I can't answer. The executive could not wait as requested in accordance with the House action. It could not wait to determine what the will of the Congress was; they went ahead and closed these hospitals anyhow. Now they are stuck with a General Accounting Office ruling, and I don't know where constitutionality comes out on this one.

Mr. Chairman, I would like at this time, if the committee would permit it, to file the statement of legal position developed by our counsel on this whole subject in which he treats title 42, section 249, which is the basic law under which seamen get medical care. Senator BARTLETT. That will be included in the record. (The document mentioned follows:)

LABOR-MANAGEMENT MARITIME COMMITTEE,
Washington, D.C.

MAYER, KLINE & RIGBY, Washington, D.C., February 18, 1965.

GENTLEMEN: You have called my attention to a release by the Secretary of Health. Education, and Welfare dated January 19, 1965, whereby he proposed to phase out seven of the Public Health Service Hospitals and to modernize and expand the remaining five Public Health Service Hospitals, and the possible eventual transfer of these five remaining hospitals and the entire health program for American seamen from the Public Health Service to the Veterans' Administration. The question is whether this can be legally done by executive action without the approval of Congress and without the President utilizing his power under the Reorganization Act of 1939 to submit a plan to Congress proposing a change in executive function and responsibility such as the one here indicated.

Our particular concern is the proposed shift in responsibiltiy for the medical care and hospitalization of U.S. seamen from the Public Health Service to the Veterans' Administration.

The basic law providing for the medical care and treatment of seamen is 42 U.S.C. 249, which provides as follows:

"SEC. 249. Medical care and treatment of seamen and certain other persons; foreign seamen; certain quarantined persons; temporary treatment in emergency cases; authorization for outside treatment

"(a) The following persons shall be entitled, in accordance with regulations to medical, surgical, and dental treatment and hospitalization without charge at hospitals and other stations of the Service:

"(1) Seamen employed on vessels of the United States registered, enrolled, and licensed under the maritime laws thereof, other than canal boats engaged in the coasting trade;

"(2) Seamen employed on United States or foreign-flag vessels as employees of the United States through the War Shipping Administration;

"(3) Seamen, not enlisted or commissioned in the military or naval establishments, who are employed on State school ships or on vessels of the United States Government of more than five tons' burden;

"(4) Cadets at State maritime academies or on State training ships; "(5) Seamen on vessels of the Mississippi River Commission and, upon application of their commanding officers, officers and crews of vessels of the Fish and Wildlife Service;

"(6) Enrollees in the United States Maritime Service on active duty and members of the Merchant Marine Cadet Corps;

"(7) Employees and noncommissioned officers in the field service of the Public Health Service when injured or taken sick in line of duty; and

"(8) Persons who own vessels registered, enrolled, or licensed under the maritime laws of the United States, who are engaged in commercial fishing operations, and who accompany such vessels on such fishing operations, and a substantial part of whose services in connection with such fishing operations are comparable to services performed by scamen employed on such vessel or on vessels engaged in similar operations.

"(b) When suitable accommodations are available, seamen on foreign-flag vessels may be given medical, surgical, and dental treatment and hospitalization on application of the master, owner, or agent of the vessel at hospitals and other stations of the Service at rates fixed by regulations. All expenses connected with such treatment, including burial in the event of death, shall be paid by such master, owner, or agent. No such vessel shall be granted clearance until such expenses are paid or their payment appropriately guaranteed to the Collector of Customs.

"(c) Any person when detained in accordance with quarantine laws, or, at the request of the Immigration and Naturalization Service, any person detained by that Service, may be treated and cared for by the Public Health Service. "(d) Persons not entitled to treatment and care at institutions, hospitals, and stations of the Service may, in accordance with regulations of the Surgeon General, be admitted thereto for temporary treatment and care in case of emergency.

"(e) Persons entitled to care and treatment under subsection (a) of this section and persons whose care and treatment is authorized by subsection (c) of this section may, in accordance with regulations, receive such care and treatment at the expense of the Service from public or private medical or hospital facilities other than those of the Service, when authorized by the officer in charge of the station at which the application is made. July 1, 1944, c. 373, Title III, sec. 322, 58 Stat. 696; June 25, 1948, c. 654, sec. 3, 62 Stat. 1018; Aug. 13, 1964, Pub. L. 88-424, 78 Stat. 398."

It should be noted that subsection (a) provides for the medical, surgical, and dental treatment of seamen and certain other persons without charge at hospitals and other stations of the Service. By definition the "Service" referred to is the Public Health Service which for many years has had the sole responsibility for the medical care and hospitalization of U.S. seamen and other related per

sons.

It should be noted that subsection (e) provides that persons entitled to care and treatment under subsections (a) and (c) may, in accordance with regulations, receive such care and treatment at the expense of the Service from public or private medical or hospital facilities other than those of the Service, and authorized by the officer in charge of the station at which the application is made. It has been suggested that this section permits the Public Health Service to delegate its care and treatment of seamen function to some other agency of the Government, such as the Veterans' Administration, as now proposed. This was not the congressional intent, as is evident from the statement with regard