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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. 6439 May 29, 1987 SOCIAL SERVICES: Manner of request to provider for medical records of persons receiving medical services Authority to require originals of medical records The Director of the Department of Social Services may request medical records from a provider of medical services relating to a claim for reimbursement for services rendered without first adopting, after consultation with providers, a form upon which such request shall be made. The Director of the Department of Social Services may require a provider of medical services to furnish original medical records, but may accept verifiable photocopies of those records in lieu of the originals. Honorable Shirley Johnson State Representative The Capitol Lansing, Michigan 48913 You have requested my opinion on two questions relating to the authority of the Director of the Department of Social Services to secure medical records from medical service providers submitting claims for reimbursement by the state. Your first question is: In order to obtain medical records from a provider of medical services for the prepayment review authorized by MCL 400.111a(7); MSA 16.490(21a)(7), is the Director of the Department of Social Services required to use a form adopted after consultation with providers of the sort described by MCL 400.111a(3); MSA 16.490(21a)(3)? 1980 PA 321 amended the Social Welfare Act, 1939 PA 280, MCL 400.1 et seq; MSA 16.401 et seq, in part, to add Secs. 111a and 111b, MCL 400.111a and 400.111b; MSA 16.490(21a) and 16.490(21b), to confer authority upon the Department of Social Services "to enforce ... current policy regarding Medicaid provider fraud and abuse." House Legislative Analysis, HB 5868 (June 17, 1980). Both sections were amended by 1982 PA 461 and last amended by 1986 PA 227. Act 280, Sec. 111a(3), imposes a duty upon the Director of the Department of Social Services to: "develop, after appropriate consultation with affected providers in accordance with guidelines, forms and instructions to be used in administering the program. Forms developed by the director shall be, to the extent administratively feasible, compatible with forms providers are required to file with 1 or more other third party payers or with 1 or more regulatory agencies and, to the extent administratively feasible, shall be designed to facilitate use of a single form to satisfy requirements imposed on providers by more than 1 payer, agency, or other entity. The forms and instructions shall relate, at a minimum, to standards of performance by providers, conditions of participation, methods of review of claims, and administrative requirements and procedures that the director considers reasonable and proper to assure all of the following: (a) That claims against the program are timely, substantiated, and not false, misleading, or deceptive. (b) That reimbursement is made for only medically appropriate services. (c) That reimbursement is made for only covered services. (d) That reimbursement is not made to those providers whose services, supplies, or equipment cost the program in excess of the reasonable value received. (e) That the state is a prudent buyer. (f) That access and availability of services to the medically indigent are reasonable." (Emphasis added.) Subsection (7)(e) of Act 280, Sec. 111a, in pertinent part, provides: "(e) Notwithstanding any other provisions of this act, before payment of claims, identify for examination for compliance with the program of medical assistance, including but not limited to medical necessity, the claims submitted by a particular provider based upon a determination that the provider's claims for disputed services exceed the average program dollar amount or volume of the same type of services, submitted by the same type of provider, performed in the same setting, and submitted during the same period. In order to carry out the authority conferred by this subdivision, the director shall notify the provider in the form of registered mail, receipted by the addressee, or by proof of service to the provider, or representative of the provider, of the state department's intent to impose specific conditions and controls prior to authorizing payment for specific claims for services. The notice shall contain all of the following: "(ii) A request for specific medical records and ... any other relevant supporting information that fully discloses the basis and extent to which the disputed practice or practices were rendered." (Emphasis added.) As part of the prepayment review of claims of providers for payment, the Department of Social Services has devised computer codes to automatically withhold payment for certain claims until the provider has complied with the requirements of the statute. In performing this function, the Department may request the provider to submit certain information, including specific medical records as set forth in Act 280, Sec. 111a(7)(e)(ii). A review of Act 280, Secs. 111a and 111b, reveals that where the Legislature intended that certain information be furnished by the provider on forms developed by the Director of the Department of Social Services after consultation with the provider, the Legislature has made its intent clear in this regard. Act 280, Sec. 111b(10), states that the provider shall submit all claims for services on a "form"; subsection (13) states that a provider shall submit information on estimated costs and charges on a "form"; and subsection (19) imposes a duty upon a provider to furnish information relative to ownership interest "on disclosure forms." Act 280, Secs. 111a and 111b, contain no comparable requirement for the Department of Social Services to make a request for medical records upon a form adopted after appropriate consultation with providers. The primary rule of statutory construction is to ascertain and give effect to the intention of the Legislature. City of Grand Rapids v. Crocker, 219 Mich 178, 182; 189 NW 221 (1922). The intent may be gathered by reading the statute in connection with other pertinent provisions of the statute. Roberts Tobacco Co v. Dep't of Revenue, 322 Mich 519, 530; 34 NW2d 54 (1948). The express mention of one thing in a statute implies the exclusion of other similar things. Sebewaing Industries, Inc v. Village of Sebewaing, 337 Mich 530, 545; 60 NW2d 444 (1953). Reading Act 280, Secs. 111a and 111b together, the intent of the Legislature is manifest that the duty of the Director of the Department of Social Services to adopt forms, after consultation with affected providers, relates to information to be furnished by providers of medical services, to the extent administratively feasible, upon forms compatible with the forms such providers are required to file with other regulatory agencies. Had the Legislature intended to require the Director to adopt a form for requesting medical records from a provider, it could have readily done so. Instead, it required only that the notice be given by registered mail, receipted by the addressee. It follows that the Director of the Department of Social Services is authorized to request medical records as part of the audit process of claims for payment of medical services submitted by the providers of the medical services. The Director of the Department of Social Services, however, is not required by the Legislature to adopt a form, after consultation with providers, to be utilized by the director in making the request. It is my opinion, in answer to your first question, that the Director of the Department of Social Services may request medical records from a provider of medical services relating to a claim for medical services rendered without first adopting after consultation with providers a form upon which such request by the director shall be made. Your second question is: Can the Director of the Department of Social Services require originals of the "specific medical records" requested under MCL 400.111a(7)(e)(ii); MSA 16.490(21a)(7)(e)(ii)? Act 280, MCL 400.111b(6); MSA 16.490(21b)(6), states that a provider shall retain each record necessary to document fully the extent of the cost of services, supplies, or equipment provided to a medically indigent person. In Act 280, MCL 400.111b(7); MSA 16.490(21b)(7), the Legislature has required the provider to make available such records "for examination and photocopying" by agents of the Director of the Department of Social Services, the Department of Attorney General, and federal authorities. Thus, the Director of the Department of Social Services may accept photocopies of medical records in response to notice requesting the medical record, as along as the originals are available to ensure that no alteration has occurred. It is my opinion, in answer to your second question, that the Director of the Department of Social Services can require original medical records to be furnished by the providers, but may accept verifiable photocopies of those records in lieu of the originals. Frank J. Kelley Attorney General
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