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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. 6483 December 15, 1987 PHYSICIANS AND SURGEONS: Handling of a medical information card as unnecessary service A physician who prepares and furnishes to a patient a card containing important medical information concerning the patient is not providing an unnecessary service to the patient in violation of the Public Health Code, MCL 333.16221(1)(e)(iii); MSA 14.15(16211)(1)(e)(iii). Honorable William A. Sederburg State Senator The Capitol Lansing, Michigan 48909 You have requested my opinion concerning the marketing of a health information card by physicians. An organization wishes to introduce a medical information card which would be marketed through physicians' offices. Your question is: Does the reimbursement of expenses to a physician for the handling of a medical information card constitute "promotion for personal gain of an unnecessary service" in violation of MCL 333.16221(1)(e)(iii); MSA 14.15(16221)(1)(e)(iii)? You have advised me that this card is intended to be carried by an individual and will contain information concerning that person's medical history and condition. Primarily, it is designed for individuals who suffer from chronic illnesses and whose medical conditions require the availability of immediate medical information in an emergency or other situations when the patient's regular physician is not available or cannot be contacted. Applications for this card will be made available at a physician's office. The physician will be responsible for preparing the application which will contain important medical information concerning the patient. The application, along with a fee, will then be submitted by the patient to the sponsoring organization. A plastic wallet-size card, containing the medical information, will be returned to the patient, who can then carry it with him or her. Physicians who participate in this program are to be reimbursed by the sponsoring organization for preparing the application as well as maintaining an inventory of the blank applications in the office. It is anticipated that the reimbursement to the physician will be nominal. Based upon the above facts, you have requested an opinion concerning whether a physician participating in this program as described in your letter would violate the Public Health Code, 1978 PA 368, Sec. 16221(1)(e)(iii); MCL 333.16221(1)(e)(iii); MSA 14.15(16221)(1)(e)(iii), and thereby be subject to disciplinary action by the Board of Medicine. MCL 333.16221; MSA 14.15(16221), provides in pertinent part: "(1) The department may investigate activities related to the practice of a health profession by a licensee, a registrant, or an applicant for licensure or registration. The department may hold hearings, administer oaths, and order relevant testimony to be taken and shall report its findings to the appropriate board or appropriate task force. The board shall proceed under section 16226 when the board finds that any of the following grounds exist: ".... "(e) Unprofessional conduct, consisting of any of the following: ".... "(iii) Promotion for personal gain of an unnecessary drug, device, treatment, procedure, or service." The above section must be construed and interpreted so as to give effect to the intent of the Legislature. Crawford v School Dist No 6, 342 Mich 564; 70 NW2d 789 (1955). This provision constitutes an attempt by the Legislature to deal with the problem of overutilization of health services by providing for disciplinary sanctions against physicians who promote unnecessary medical services. OAG, 1979-1980, No 5498, p 186 (June 8, 1979). To constitute a violation of this section, two elements are required. First, the physician must promote for personal gain a "service," and second, the "service" must be unnecessary. To determine whether a medical service is unnecessary is largely dependent upon the particular factual circumstances of each situation which is presented. Only after an evaluation of all the facts can a determination be made as to whether the "service" is unnecessary. In the facts presented in your letter, it appears that the service relates to the providing of important medical information regarding patients who suffer from chronic illnesses and conditions. The availability of this information quickly in an emergency may mean the difference between life and death. Clearly, this is not an "unnecessary" service. There exists the potential that the conduct described in your letter, since it involves payment by the sponsoring organization to the physician, could constitute a kickback. See OAG, 1977-1978, No 5229, p 234 (September 30, 1977). Sufficient facts have not been provided in your letter to make such a determination. However, if the arrangement results in the physician receiving payment intended to be a kickback, such arrangement is not lawful and could result in disciplinary proceedings provided for by MCL 333.16221(1)(d)(ii); MSA 14.15(16221)(1)(d)(ii). It is my opinion, therefore, that a physician who prepares and furnishes to a patient a card containing important medical information concerning the patient is not providing an unnecessary service to the patient in violation of the Public Health Code, MCL 333.16221(1)(e)(iii); MSA 14.15(16221)(1)(e)(iii). Frank J. Kelley Attorney General
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