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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. 5649 February 11, 1980 APPROPRIATIONS: Medicaid program SOCIAL SERVICES, DEPARTMENT OF: Provisions of chiropractic services CONSTITUTIONAL LAW: Equal protection and due process clauses 1979 PA 110, which appropriates monies to the Department of Social Services for the Medicaid program, does not appropriate any funds for chiropractic services for the fiscal year ending September 30, 1980. Elimination of optional chiropractic benefits under the Medicaid program does not violate the Equal Protection and Due Process Clauses of the United States Constitution. Honorable Joyce Symons Honorable Raymond Hood Honorable Bela Kennedy Honorable Barbara-Rose Collins Honorable Richard Fessler Honorable Ernest Nash State Respresentatives The Capitol Lansing, Michigan 48933 You have requested my opinion regarding certain boilerplate language in 1979 PA 110, Sec.68. (1) This Act appropriates funds for the Department of Social Services for the fiscal year ending September 30, 1980. 1979 PA 110, Sec. 68, supra, provides: 'Chiropractic services shall be reimbursed under the Medicaid program when funds are made available.' Your questions are: 1. Does this section require for its implementation that funds other than those provided for in 1979 PA 110, supra, be appropriated? 2. If so, is the legislature required to appropriate said funds? If the legislature is not required to appropriate funds, does that mean that there will be no payment for chiropractic services under the bill as now written? 3. If the answer to (1) is no, will chiropractic services then be paid for from funds appropriated in 1979 PA 110, supra? 4. If the bill makes no provision for the payment of chiropractic services and since the Federal Medicaid Aid provides for coverage of such services, is 1979 PA 110, Sec. 68, supra, in violation of the Federal Act? 5. If other health providers such as M.D.'s and D.O.'s are provided for under 1979 PA 110, supra, does the bill violate equal protection or due process of law by not similarly providing for chiropractors, who are also duly licensed health care providers? Your first three questions essentially ask whether 1979 PA 110, supra, precludes the Department of Social Services from providing reimbursement for chiropractic services under the Medicaid program and, therefore, a single answer will suffice for all three. The elimination of chiropractic benefits from the Medicaid program was recommended by the Directors of the Department of Social Services and Management and Budget, and this decision was concurred in by the Governor. This recommendation was made at a meeting held on May 21, 1979, to deal with Medicaid cost containment by a task force consisting of representatives from the Executive Branch, the House of Representatives and the Senate. (Copy of May 21, 1979 Medicaid Cost Containment Recommendations attached). The recommendation regarding the elimination of this benefit was ultimately accepted by the conference committee charged with the responsibility of resolving the differences in Substitute HB 4187 and the Senate substitute thereto, 1979 House Journal, No 76, p 1473, and resulted in the language contained in 1979 PA 110, Sec. 68, supra, 1979 House Journal, No 89, pp 31 and 32. As originally introduced, HB No 4187 proposed to appropriate $142,285,000 for physicians' services. (2) As Substitute HB No 4187 was approved by the House on the 20th day of June, 1979, the House had reduced this sum to $139,300,000. 1979 House Journal No 76, p 1458. The Senate substitute for HB No 4187 increased the appropriation for physicians' services to $147,161,300. 1979 Senate Journal No 79, p 1425. The Conference Committee report drastically reduced the latter amount to $118,561,000, 1979 House Journal No 89, p 1930; 1979 Senate Journal No 83, p 1887, and simultaneously the Conference Committee proposed to incorporate in HB No 4187, a section 68, 1979 House Journal No 89, p 1931, 1979 Senate Journal No 83, p 1888, which specified that chiropractic services shall be reimbursed under the medicaid program when funds are made available. The Conference Committee Report was approved without changes. 1979 House Journal No 89, p 1925; 1979 Senate Journal, No 83, p 1889. The Legislature has expressed, in 1979 PA 110, Sec. 68, supra, its intent that the funding for chiropractic services, which was removed from that appropriations act, be reinstated when monies became available. Thus, the authority for payment of chiropractic services must be by further legislature appropriation. Colombini v Department of Social Services, ---- Mich App ----; ---- NW2d ---- (Court of Appeals Docket No. 78-844, October 16, 1979). Therefore, in response to your first three questions, 1979 PA 110, supra, does not appropriate any funds for chiropractic services. In the fourth question, you ask if the elimination of coverage for chiropractic services violates federal law pertaining to the Medicaid program? Title XIX of the Social Security Act [42 USC 1396 et seq.] requires participating states submit for the review and approval of the United States Department of Health, Education and Welfare, a State Plan for Medical Assistance which in accordance with 42 USC 1396a(a)(13) must provide to eligible recipients, '. . . at least the care and services in clauses (1) through (5) of section 1905(a) [42 USC 1396d(a)(1)-(5)] . . .' These so-called 'mandatory' services are described in 42 USC 1396d(a)(1)-(5) as follows: '(1) inpatient hospital services (other than services in an institution for tuberculosis or mental diseases); (2) (A) outpatient hospital services, and (B) consistent with State law permitting such services, rural health clinic services (as defined in subsection (1)) and any other ambulatory services which are offered by a rural health clinic (as defined in subsection (1)) and which are otherwise included in the plan; (3) other laboratory and X-ray services; (4) (A) skilled nursing facility services (other than services in an institution for tuberculosis or mental diseases) for individuals 21 years of age or older (B) effective July 1, 1969, such early and periodic screening and diagnosis of individuals who are eligible under the plan and are under the age of 21 to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary; and (C) family planning services and supplies furnished (directly or under arrangements with others) to individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies; (5) physicians' services furnished by a physician (as defined in section 1861(r)(1) [42 USCA Sec. 1395x(r)(1)]), whether furnished in the office, the patient's home, a hospital, or a skilled nursing facility, or elsewhere;' (Emphasis added) Clearly, the statute does not contemplate the inclusion of chiropractic services as part of 'physician's services furnished by a physician (as defined in 1861(r)(1) [42 USCA Sec. 1395x(r)(1)]' since that provision includes only: '(1) a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which he performs such function or action . . .' Chiropractic services are included as part of one of the additional twelve (12) 'optional' services. Therefore, under Title XIX of the Social Security Act, the State is not mandated to provide coverage under the Medicaid program for chiropractic services and the elimination of such service is not prohibited by Title XIX but remains an option open to each State. In your last question, you ask if the elimination of chiropractic services coverage under Medicaid denies equal protection or due process of law to chiropractors since other medical services, some of which are performed by M.D.'s and D.O.'s, are still covered benefits. In Annie Green v John R. Cashman, et al, 605 F2d 945 (CA 6, 1979) the United States Court of Appeals for the Sixth Circuit noted: '. . . We do not find in the statute authorizing Medicare and Medicaid any legislative intention to provide financial assistance to providers of care for their own benefit. Rather, the statute is designed to aid the patients and clients of such facilities. Other courts have expressed the same point of view in similar situations. See Case v Weinberger, 523 F2d 602, 607 (2d Cir. 1975); Paramount Convalescent Center v Department of Health Care Services, 16 Cal 3d 489, 496-97, 125 Cal. Rptr. 265, 269, 542 P. 2d 1, 5, (1075). . . .' No provider of care or services, even those services which are reimbursed under Medicare or Medicaid, has a statutorily based right in the continuation of such reimbursement which could rise to constitutional dimensions. Therefore, where a service is not even covered under the Medicaid program, the providers of that particular service, whether M.D.'s, D.O.'s, chiropractors or other health care practitioners, lack standing to complain about the scope of patient benefits on constitutional grounds as none of their legally cognizable rights are impacted by the exclusion of a particular benefit from coverage. Further, the elimination of coverage for chiropractice services, while continuing to cover the services of M.D.'s and D.O.'s, also does not violate recipients' constitutional rights. In Dandridge v Williams, 397 US 471, 485; 90 S Ct 1153; 25 L Ed 2d 491 (1970), the United States Supreme Court rejected plaintiff's equal protection challenge to Maryland's maximum limitation on welfare grants stating: 'In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369. 'The problems of government are practical ones and may justify, if they do not require, rough accommodations--illogical, it may be, and unscientific.' Metropolis Theatre Co v City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443, 57 L.Ed. 730. 'A statutory discrimination will not be set aside if any state of facts reasonable may be conceived to justify it.' McGowan v Maryland, 366 US 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393.' An equal protection challenge brought by a group of podiatrists, whose services are also 'optional' under Title XIX of the Social Security Act, was dismissed in District of Columbia Podiatry Society v District of Columbia, 407 F Supp 1259 (D DC 1975), as insubstantial and wholly without merit. After finding that Congress intended to give states considerable latitude in designating their medicaid plans, that a state has the threshhold choice of whether to participate in the medicaid program at all, and that a participating state is free to choose which, if any, of the optional services it will include in its plan, the court concluded: 'Thus, '[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' From the discussion of the 'Scope of Services' and 'Fee Schedule' issues, it is clear that there is an obvious congressional desire to limit Medicaid expenditures. In order to do so, Congress may have determined that distinctions between podiatrists and physicians as to the scope of compensable services and amount of compensation were appropriate. It is not for the courts to question the wisdom of such a determination which may favor physicians at the expense of podiatrists. A classification does not offend the Constitution merely 'because in practice it results in some inequality." (Footnotes omitted.) 407 F Supp 1259, 1269. Thus, it is my opinion that where the Congress, in adopting the Medicaid program, has determined chiropractic services to be 'optional,' it is proper for the Legislature to determine what optional services will be provided in light of budgetary constraints. Under the Michigan scheme, all members of the class (medicaid recipients) are treated equally, that is, no medicaid payments are reimbursed to any recipient for chiropractic services. Accordingly, no discrimination among recipients is evidenced. The rational basis test has also been applied to substantive due process challenges under the Fifth Amendment of the United States Constitution and in Richardson v Belcher, 404 US 78, 81; 30 L Ed 2d 231; 92 S Ct 254 (1972) the Supreme Court noted: 'While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment's Equal Protection Clause, a classification that meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment. Cf Bolling v Sharpe, 347 US 497, 499, 98 L Ed 884, 886, 74 S Ct 693.' Therefore, it is my opinion that the elimination of chiropractic benefits under the Medicaid program is not unconstitutional. Frank J. Kelley Attorney General (1)
(2)
OAG 1969-1970, No. 4694, p 179 (September 16, 1970) held that chiropractic services are physicians' services as that term is used in 1939 PA 280, Sec. 109(b); MCLA 400.109(b); MSA 16.490(24).
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