[ Previous Page]  [ Home Page ]

The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6567

February 1, 1989

NONPROFIT HEALTH CARE CORPORATION REFORM ACT:

Reimbursement of specialty certified nurses for covered services

Blue Cross-Blue Shield of Michigan may not deny reimbursement to a licensed specialty nurse for covered services rendered within the scope of the respective specialty nurse certification and nursing license when such services can be lawfully rendered by the nurse without delegation and supervision of a licensed physician.

Blue Cross-Blue Shield of Michigan is not required to provide direct reimbursement for covered services rendered by a licensed specialty nurse when those services can only be rendered by the nurse upon delegation and supervision of a licensed physician.

Honorable Debbie Stabenow

State Representative

The Capitol

Lansing, Michigan

Honorable Mitch Irwin

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion whether 1980 PA 350, Sec. 502(3), permits Blue Cross-Blue Shield of Michigan (BCBSM) to deny reimbursement to specialty certified registered nurses for covered health care services, while accepting claims for the same services from other providers, generally physicians.

BCBSM operates subject to the Nonprofit Health Care Corporation Reform Act, 1980 PA 350 (Act 350); MCL 550.1101 et seq; MSA 24.660(101) et seq, which "represents an effort of the Legislature aimed at curbing the rise in health care costs by a unique statutory scheme which combines both free-market and government regulatory methods of control." BCBSM v Governor, 422 Mich 1, 18; 367 NW2d 1, reh den 422 Mich 1206, app dis 474 US 860; 106 S Ct 40; 88 L Ed 2d 33 (1985).

Under Act 350, individuals who are "health care providers" may contract with BCBSM to provide services to its subscribers. MCL 550.1105(4); MSA 24.660(105)(4), defines a "health care provider" as "a person licensed, certified, or registered under parts 161 to 182 of Act No. 368 of the Public Acts of 1978, as amended, being sections 333.16101 to 333.18237 of the Michigan Compiled Laws; ...."

"Health care services" are defined as "services provided, ordered, or prescribed by a health care provider, including health and rehabilitative services and medical supplies, medical and rehabilitative services and medical supplies, medical prosthetics and devices, and medical services ancillary or incidental to the provision of those services." MCL 550.1105(5); MSA 24.660(105)(5). Finally, a "health care benefit" is defined as the right under a certificate to have payment made by BCBSM for a specified health care service. MCL 550.1105(1); MSA 24.660(105)(1).

OAG, 1985-1986, No 6410, p 447, (December 22, 1986), concluded that a BCBSM subscriber had a right to receive covered eye care services either from an ophthalmologist or an optometrist licensed under the Public Health Code, 1978 PA 368, MCL 333.1101 et seq; MSA 14.15(1101) et seq, where an "overlap" area existed between the two professions and the scope of practice of either permitted lawful provision of the service. (1) OAG, 1985-1986, No 6410, relevantly states:

"While BCBSM may limit the health care benefits it will furnish and may divide those benefits it does furnish into classes or kinds, MCL 550.1401(2); MSA 24.660(401)(2), there is nothing in the Non-profit Health Care Corporation Reform Act which authorizes BCBSM to deny authorized services to its subscribers based upon their choice of the class of provider as long as the health care provider is licensed under the Public Health Code and legally qualified to provide the service." OAG, 1985-1986, No 6410, at p 448.

Therefore, assuming that the health care services at issue are authorized under the certificate and the services are within the scope of those that may lawfully be rendered by the licensed provider, a subscriber has the right to utilize the services of a qualified health care provider of the subscriber's choice. MCL 550.1502(3); MSA 24.660(502)(3).

The next determination is whether a specialty certified registered nurse is a "provider" within the meaning of Act 350. In MCL 550.1105(4); MSA 24.660(105)(4), the Legislature incorporated by reference as "providers" those individuals "licensed, certified, or registered" under parts 161 to 182 of the Public Health Code; MCL 333.16101-333.18237; MSA 14.15(16101)-14.15(18237), including nursing [MCL 333.17201-333.17242; MSA 14.15(17201-14.15(17242) ].

Considering together the definition of "health care provider" under Act 350 and the term "license" under the Public Health Code, (2) it appears clear that the Legislature intended that such persons who provide health care services within the scope of practice statutorily conferred by the license have a lawful right to seek reimbursement from BCBSM, assuming that provision of the service in question is specified in the health care certificate.

Part 172 of the Public Health Code; MCL 333.17201-333.17242; MSA 14.15(17201)-14.15(17242), regulates the practice of nursing. Section 17201(1)(a) provides:

" 'Practice of nursing' means the systematic application of substantial specialized knowledge and skill, derived from the biological, physical, and behavioral sciences, to the care, treatment, counsel, and health teaching of individuals who are experiencing changes in the normal health processes or who require assistance in the maintenance of health and the prevention or management of illness, injury, or disability."

"Registered professional nurse" or "r.n." is defined in Sec. 17201(1)(c) of the Public Health Code as

"an individual licensed under this article to engage in the practice of nursing which scope of practice includes the teaching, direction, and supervision of less skilled personnel in the performance of delegated nursing activities."

Section 17210 of the Public Health Code authorizes specialty certification for registered nurses possessing advanced training and demonstrated competency as nurse anesthetists, nurse midwives, and nurse practitioners. The specialty certification requirements are implemented by 1986 AACS, R 338.10401-338.10406. See also Sec. 16261(2) of the Public Health Code.

Section 17001(1)(c) of the Public Health Code defines the "practice of medicine" as

"the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts."

The "practice of medicine" is clearly broader than the "practice of nursing." See Attorney General v Beno, 422 Mich 293, 311, 325-327, 332; 373 NW2d 544 (1985). However, with respect to medical acts not within the "practice of nursing," a licensed physician may, under Sec. 16215(1) of the Public Health Code, delegate to a licensed nurse (which includes a certified specialist) "who is otherwise qualified by education, training, or experience the performance of selected acts, tasks, or functions where the acts, tasks, or functions fall within the scope of practice of the licensee's profession and will be performed under the licensee's supervision." In such instances, the delegatee nurse certified specialist would be lawfully performing delegated tasks under the supervision of a licensed physician.

Examination of opinions of the Attorney General on administering of anesthesia constituting the "practice of medicine" is instructive. OAG, 1937-1938, p 451-452 (March 9, 1938), concluded anesthetics may not be administered except under the direct supervision of a licensed physician, citing Frank v South, 175 Ky 416, 427-428; 194 SW 375, 380 (1917) (licensed nurse trained in anesthesia, acting under the direction and supervision of a licensed physician, not engaged in the unlawful practice of medicine). The Frank case was followed in Chalmers-Francis v Nelson, 6 Cal 2d 402; 57 P2d 1312 (1936), and in Bhan v NME Hospitals, Inc, 772 F2d 1467, 1471 (Ca 9, 1985), dism on remand 669 F Supp 998 (ED Cal, 1987), which stated, in reviewing California law, that "in administering anesthesia a nurse must act at the direction of, and under the supervision of, inter alia, a physician." OAG, 1939-1940, p 308 (November 14, 1939) (registered nurse may legally administer an anesthetic when under the supervision and direction of a licensed physician); 61 Am Jur 2d, Physicians, Surgeons, etc, Sec. 36, p 185. See OAG, 1941-1942, No 23624, p 600 (May 6, 1942).

Thus, a licensed nurse can lawfully perform those duties within the scope of practice specified in the nursing license, as well as other tasks not specified in the license upon the proper delegation of those tasks by a duly licensed physician. However, the status of being licensed as a nurse and possessing authorization from a licensed physician to perform selected medical acts, tasks or functions pursuant to delegation and supervision, is derivative and not the same as holding a license to practice medicine. Because the Act requires that reimbursement be made to those medical providers who are licensed to provide the services, only those nursing services performed that fall within the scope of practice of the nursing license must be reimbursed by BCBSM.

Should the service performed require medical delegation and supervision under the Public Health Code because the service is within the "practice of medicine," such as the administration of anesthesia, then direct reimbursement to the delegatee is not required to be made by BCBSM. The ultimate determination whether the service performed constitutes the "practice of medicine," the "practice of nursing," or practice in an "overlap area," is dependent on the facts and circumstances.

It is noted that this opinion specifically has not addressed reimbursement under the Medicaid program or Federal Medicare Act. See Mich Academy of Family Physicians v BCBSM, 728 F2d 326 (CA 6, 1984), aff'd on remand 757 F2d 91 (CA 6, 1985), aff'd sub nom Bowen v Michigan Academy of Family Physicians, 476 US 667; 106 S Ct 2133; 90 L Ed 2d 623 (1986).

It is my opinion, therefore, that Blue Cross-Blue Shield of Michigan may not deny reimbursement for covered services rendered by a speciality certified registered nurse within the scope of the respective speciality nurse certification and nursing license when such services can be lawfully rendered by the nurse without delegation and supervision of a licensed physician. It is my further opinion that when covered services can only be rendered by a nurse upon the delegation and supervision of a licensed physician, Blue Cross-Blue Shield of Michigan is not required to provide direct reimbursement to the licensed specialty nurse.

Frank J. Kelley

Attorney General

(1) See In re Carpenter's Estate, 196 Mich 561; 162 NW 963 (1917), and Hill v Highland Park Gen Hosp, 80 Mich App 334; 263 NW2d 362 (1977).

(2) " 'License' means an authorization issued under this article to practice where practice would otherwise be unlawful. It includes an authorization to use a designated title which use would otherwise be prohibited under this article and may be used to refer to a health profession subfield license, limited license, or a temporary license." MCL 333.16106(2); MSA 14.15(16106)(2).

 


[ Previous Page]  [ Home Page ]