STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6523

June 9, 1988

CHIROPRACTORS: Provision of services for crippled children's or Medicaid programs

HEALTH MAINTENANCE ORGANIZATIONS: Provision of services for Medicaid recipients

PUBLIC HEALTH, DEPARTMENT OF: Crippled children's program services by chiropractors

SOCIAL SERVICES, DEPARTMENT OF: Medicaid services by chiropractors

WORDS AND PHRASES: 'Other providers'

The Legislature has not authorized the Department of Public Health to approve chiropractors to provide medical diagnosis, management, and treatment for crippled children under the crippled children's program, but the Department of Public Health is authorized to approve chiropractors as 'other providers' to provide appropriate services if ordered by medical or surgical specialists.

A health maintenance organization is not in violation of its Medicaid services contract with the Department of Social Services when medically necessary Medicaid services based upon a preferred treatment as determined by the primary physician are provided by a health professional other than a chiropractor where several acceptable treatments are appropriate.

Honorable Doug Carl

State Senator

The Capitol

Lansing, MI

You have requested my opinion whether the Department of Public Health (Department) is failing to comply with the law by refusing to approve chiropractic providers for participation in the crippled children's program. Specifically you ask whether chiropractors are authorized to participate in this program 'under the category of other providers,' pursuant to MCL 333.5815(a); MSA 14.15(5815)(a).

The Public Health Code, 1978 PA 368, Sec. 5801 et seq, MCL 333.5801 et seq; MSA 14.15(5801) et seq, requires the Department to establish and administer a program of services for crippled children and children who are suffering from conditions which lead to crippling. MCL 333.5815; MSA 14.15(5815). A 'crippled child' refers to an individual under 21 years of age 'whose activity is or may become so restricted by disease or deformity as to reduce the individual's normal capacity for education and self-support.' MCL 333.5801(1); MSA 14.15(5801)(1).

The program must be carried out for the purposes of 'providing medical and physical care for crippled children and for making them self-sustaining in whole or in part rather than dependent on the public for support.' MCL 333.5805(2); MSA 14.15(5805)(2). It must include services for providing medical, surgical, corrective, nutritional, and other services and care, including aftercare when necessary, and facilities for diagnosis and hospitalization of crippled children. If a child is deemed medically and financially eligible for the program, some or all of the cost of treatment is paid out of a special crippled children's fund. MCL 333.5841; MSA 14.15(5841).

In implementing the program of services to crippled children, the Department must promulgate rules:

The Department has both promulgated rules, 1979 AC, R 722.601 et seq and R 722.1 et seq, and developed a plan, entitled the Locally Based Services Manual, to implement the crippled children's program. 1979 AC, R 722.641, provides:

In its plan, the Department describes the procedures for locating crippled children and for the diagnostic evaluation of crippled children by an approved clinic or physician specialist. When a child is determined to be both economically and medically eligible for crippled children services, the Department refers the child to a speciality physician ⁽¹⁾ which it has approved. Referrals are made to specific approved specialists depending on the diagnosis and assessment of the child's needs. These referrals are made on a non-discriminatory basis, in accordance with MCL 333.5825; MSA 14.15(5825), which, inter alia, prescribes that 'in making referrals under this part the department shall not discriminate against health professionals qualified to render care.' The specialist is responsible for the overall management of the case, assessment of the child's needs, and determination of the course of treatment.

The Department has not approved chiropractors for referrals for either diagnosis or treatment of crippling conditions. Nor does the Department approve for such referrals any other health care provider who is not a physician specialist. However, as set out in its plan, if other services are prescribed by the physician specialist managing the case, the Department will approve and authorize payment to other providers who provide such services. For example, the Department authorizes reimbursement of pharmacies, shoe stores, dentists, physical therapists and medical and optical suppliers when their services are prescribed by the physician specialist managing the case. Department representatives advise that chiropractors would likewise be approved and authorized to receive payment for their services where the physician specialist prescribes chiropractic services.

Since the Department will approve and authorize payment to chiropractors when chiropractic services are prescribed by the managing physician specialist, it appears that your question concerns the Department's refusal to approve chiropractors for diagnostic referrals or to serve as the health provider in charge of the management of the child's treatment. In determining the legality of the Department's approval of physician specialists, but not chiropractors, for these purposes, two issues must be addressed: first, whether the Department is required by the Public Health Code to approve chiropractors for diagnosis and case management/treatment purposes; and second, if the statute does not require such approval, whether it impermissibly discriminates against chiropractors in a manner constituting a denial of equal protection.

In interpreting a statute, the legislative intent in enacting the provisions must be ascertained. To do this, the language of the statute itself must be examined. All provisions of the enactment in question must be considered and read together in light of the general purpose to be accomplished, giving effect to the act as a whole. Michigan Life Ins Co v Comm'r of Ins, 120 Mich App 552, 557-558; 328 NW2d 82 (1982).

The purpose of the Public Health Code is to provide medical and physical care for crippled children. MCL 333.5805(2); MSA 14.15(5805)(2). While there is no explicit requirement in the Public Health Code that medical and physical care be provided by any particular type of health care provider, the Legislature has specifically required that the Department prescribe requirements for approval of 'medical and surgical specialists.' MCL 333.5815(a); MSA 14.15(5815)(a). The Legislature has additionally provided for approval of hospitals for the rendering of services to crippled children which maintain on their staff 'attending medical ans surgical specialists approved by the department.' MCL 333.5826; MSA 14.15(5826).

There are also references in the Public Health Code to 'physician or surgeon approved by the department.' MCL 333.5828 and 333.5831; MSA 14.15(5828) and 14.15(5831). 'Physician' is defined under the laws governing the licensure of health care professionals as a person licensed to engage in the practice of medicine or the practice of osteopathic medicine and surgery. MCL 333.17001(1)(b) and 333.17501(1)(b); MSA 14.15(17001)(1)(b) and 14.15(17501)(1)(b). As to the term 'surgeon,' under the licensing statutes, doctors of medicine and doctors of osteopathy are authorized to engage in surgery; doctors of chiropractic are prohibited from performing surgical procedures. MCL 333.16401(b)(iii), 333.17001(1)(c), and 333.17501(1)(c); MSA 14.15(16401)(b)(iii), 14.15(17001)(1)(c), and 14.15(17501)(1)(c). See also Isaacson v Wisconsin Casualty Ass'n, 187 Wis 25, 30; 203 NW 918, 920 (1925). Further, while the Legislature has not specifically defined 'medical and physical care' in the crippled children provisions, it has limited the definition of 'medical care services' under the licensing laws to services within the scope of practice of alleopathic and osteopathic physicians. MCL 333.17001(1)(a) and 333.17501(1)(a); MSA 14.15(17001)(1)(a) and 14.15(17501)(1)(a).

By comparison, the Legislature has not specifically referenced 'chiropractors' anywhere in the provisions governing the crippled children's program, nor has the Legislature referenced 'chiropractic services.' The specific references to 'medical and surgical specialists' and 'medical care' and the absence of any specific reference to 'chiropractors' or 'chiropractic services' indicates that the Legislature intended that the Act's purpose be implemented through the use of physician specialists.

You question whether the Legislature intended that chiropractors be approved to treat crippled children as 'other providers' under MCL 333.5815(a); MSA 14.15(5815)(a), which requires the Department '[t]o prescribe requirements for the approval of facilities and treatment centers, medical and surgical specialists, and other providers.' (Emphasis added.) As discussed above, the Department does approve and authorize payment to other providers for services prescribed by the physician specialist managing the case. Nothing in this provision indicates that the Legislature intended that chiropractors be approved for diagnostic, case management, and treatment purposes. In light of the purpose of the Act, the nature of medical care required by crippled children, the specific references in the Act to medical and surgical specialists, and the scope of practice of chiropractors, it must be concluded that the Legislature did not intend that chiropractors be approved for these purposes.

The scope of chiropractic practice is very limited. The practice of chiropractic is described in MCL 333.16401(1); MSA 14.15(16401)(1), which provides, in pertinent part:

Thus, chiropractors may only diagnose and treat spinal subluxations or misalignments. Attorney General v Beno, 422 Mich 293; 373 NW2d 544 (1985). See generally Anno: Scope of Practice of Chiropractic, 16 ALR4th 58. Chiropractors are not authorized to conduct physical examinations or laboratory tests to diagnose and discover maladies and diseases which are not spinal subluxations or misalignments. Therapeutic procedures which are beyond the treatment of spinal subluxations or misalignments, or are invasive in nature, are also not authorized. Nutritional advice and recommendations or dispensing of vitamins or food supplements are likewise limited to a program to correct a subluxation or misalignment of the spine. A chiropractor is prohibited from performing surgery or prescribing drugs or medicine, regardless of the part of the body implicated.

In light of the above, chiropractors are prohibited from comprehensively examining and evaluating a child to determine whether the child is crippled within the meaning of the Public Health Code, or to assess the needs of the child and define a plan of treatment for making the child 'self-sustaining in whole or in part.' MCL 333.5805(2); MSA 14.15(5805)(2). A chiropractor also lacks the authority to implement the plan of treatment for the crippling condition (unless the condition requires only the treatment of subluxation or misalignment of the spine). Unlike chiropractors, allopathic and osteopathic physicians are authorized to diagnose any medical condition and treat any part of the body employing a full range of techniques and procedures. MCL 333.17001(1)(c) and 333.17501(c); MSA 14.15(17001)(1)(c) and 14.15(17501)(c). Osteopaths, as well as allopaths, are qualified to render 'medical and surgical treatments' under the then-existing Afflicted Children Act, MCL 722.301 et seq; MSA 25.422(1) et seq, and may be paid for their services. 2 OAG, 1956, No 2754, p 642 (November 7, 1956).

Diagnosis and treatment of crippled children would necessarily require chiropractors to exceed the scope of medical practice authorized by the Legislature.

The Legislature is presumed to know of and legislate in harmony with existing laws. People v Cash, 419 Mich 230, 241; 351 NW2d 822 (1984). The Legislature did not intend that the Department approve chiropractors to render services which exceed their legal scope of practice under licensing laws.

Thus, the Legislature has not authorized the Department of Public Health to approve chiropractors for the diagnosis, treatment and management of crippled children.

Turning to whether this classification impermissibly discriminates against chiropractors in a manner constituting denial of equal protection, the decision in California Chiropractic Ass'n v Human Relations Agency, 91 Cal App 3d 141, 147-148; 154 Cal Rptr 255; 8 ALR4th 1043 (1979), is instructive. The California Court of Appeals upheld provisions of that state's Medicaid program which limited coverage for chiropractic services, and summarized the standards for reviewing challenges to social welfare legislation based on equal protection grounds:

See also Katz v New Mexico Dep't of Human Services, 95 NM 530; 624 P2d 39 (1981), where the court rejected equal protection challenges to denial of Medicaid benefits for chiropractic services.

In light of the limited scope of chiropractic services, the exclusion of chiropractors as providers which must be approved for diagnostic and case management and treatment of crippled children is rationally related to the purpose of the statute, namely to provide medical and physical care to crippled children to enable them to be as self-sustaining as possible. Neither the Legislature nor the Department has provided for specific services to crippled children which would fall within a chiropractor's limited scope of practice. Thus, this situation is unlike that in 2 OAG, 1956, No 2775, p 654 (November 9, 1956), wherein the Crippled Children Commission established a program to provide for the purchase of eye glasses for children enrolled in the crippled children's program. The opinion concluded that officials and staff involved with the program acted illegally by referring children to ophthalmologists, but not optometrists, when licensing provisions clearly authorized optometrists to perform the needed services.

It is my opinion, in answer to your first question, that the Legislature has not authorized the Department of Public Health to approve chiropractors to provide medical diagnosis, management, and treatment for crippled children under the crippled children's program, but the Department of Public Health is authorized to approve chiropractors as 'other providers' to provide appropriate services if ordered by medical or surgical specialists.

Your second question relates to the provision of chiropractic care to Medicaid recipients by health maintenance organization (HMOs) who are under contract with the Department of Social Services. Your question is:

Title XIX of the Social Security Act, 42 USC 1396 et seq, provides for the establishment of a cooperative federalstate program, commonly called 'Medicaid,' to provide payments for necessary medical services rendered to certain needy individuals whose income and resources are insufficient to meet the costs of these services. 42 USC 1396; Schweiker v Hogan, 457 US 569, 571; 102 S Ct 2597; 73 L Ed 2d 227 (1982); Schweiker v Gray Panthers, 453 US 34; 101 S Ct 2633; 69 L Ed 2d 460 (1981). States are not required to institute and administer a Medicaid program, but if they choose to do so, the federal government will reimburse them for a portion of the costs incurred in providing certain types of medical care and services to needy persons who are qualified recipients. 42 USC 1396b; 42 CFR 447.1 et seq. Michigan has decided to institute and administer a Medicaid program. The Michigan Department of Social Services administers the program for the state.

In order to qualify for federal matching funds under Title XIX, a state must submit a 'state plan' which meets the conditions specified in the Act and implementing federal regulations. See 42 USC 1396a; Harris v McRae, 448 US 297, 301; 100 S Ct 2671, 65 L Ed 2d 784 (1980). Michigan has submitted a state plan which has been approved.

The Health Care Financing Administration administers the Medicaid program at the federal level and is responsible for assuring that states operate their programs in accordance with their approved plans and in compliance with all applicable requirements. However, within the parameters set by the federal requirements, it is the states which have responsibility for establishing the level of reimbursement for institutions and individuals providing medical services, for determining the conditions under which these providers may participate in the program, for entering into provider agreements, for assuring that recipients receive the proper level of care, for establishing the scope of services to be offered under the particular state's program, and for affording fair hearings. See generally 42 USC 1396a.

Participating states must cover as 'categorically needy' all recipients of cash assistance under the aid to families with dependent children (AFDC) program of Title IV-A, 42 USC 601 et seq, and (subject to an exception not relevant here) under the program of supplemental security income for the aged, blind, and disabled (SSI), Title XVI of the Social Security Act, 42 USC 1381 et seq. 42 USC 1396a(a)(10)(A)(i). A state must provide certain minimum services to all 'categorically needy' beneficiaries. Id. States also have the option to provide Medicaid benefits to certain other individuals as 'categorically needy' persons if they meet financial criteria which are related to those used to determine eligibility for cash assistance. See 42 USC 1396a(a)(10)(A)(ii). The Medicaid regulations promulgated by the Secretary of Health and Human Services provide that the financial eligibility requirements of a state's AFDC plan are to be used to determine which individuals are eligible as 'categorically needy' because of their eligibility for AFDC. 42 CFR 435.711.

A state may also choose to cover as 'medically needy' certain individuals who meet the requirements of the AFDC or SSI cash assistance programs' eligibility standards except when their income exceeds the amount permitted under those programs' eligibility standards. 42 USC 1396a(a)(10)(C) and 1396d(a); 42 CFR 435.301(a). The State of Michigan has a 'medically needy' program. In such a program persons whose income exceeds the standard for financial eligibility must be allowed to 'spend down' the excess income by incurring medical expenses equal to or greater than the excess and may become eligible as medically needy thereafter.

Generally, the Department of Social Services enters into a contract with health care providers to furnish health care to Medicaid recipients. The Medicaid recipient then may obtain covered health care from any health care provider participating in the Medicaid program. ⁽²⁾ This system developed because the federal Medicaid program requires that a recipient be given a freedom of choice as to where medical care is to be obtained. 42 CFR 431.51.

The Department of Social Services, recognizing the change in the delivery of health care by HMOs, has entered into contracts with a number of HMOs. The federal government has authorized such methods of providing health care for Medicaid recipients. 42 USC 1396b(m).

An HMO is an organization that provides for the medical needs of an individual for the payment of a fixed fee to pay all covered medical services. An HMO is responsible for all covered health care for enrolled individuals. An enrolled individual may not receive care elsewhere unless he/she pays for that care. The theory supporting an HMO is that health care may be made more economic by utilizing preventive medicine to keep its patient population healthier.

There are three types of HMO models. The first is a clinic model that hires health care practitioners as employees who provide the patient care in a clinic setting. Some specialities may be contracted out. The second model is an HMO that contracts for all of its health care. The HMO is an administrative office that administers the program. The HMO member is restricted to seeing physicians who participate in the program. The third model would be a hybrid between the two. All the types of HMOs generally require that one physician be responsible for being a primary physician, usually of the patient's choice. Hospitalization is also part of the fixed fee cost paid by the member so that the HMO will pay the hospital bills for covered services.

The Department of Social Services permits Medicaid recipients to enroll in an HMO that has a Medicaid provider contract. The HMO is responsible for all covered health care for the individual. Similar to a private employer or individual, the Medicaid program pays the HMO a monthly fixed fee for each enrolled Medicaid recipient to provide all covered medical care, including hospitalization.

Enrollment in an HMO by a Medicaid recipient is voluntary. Once a recipient enrolls, however, the recipient has exercised his or her right of freedom of choice for all items included under the HMO contract. A Medicaid recipient may terminate the enrollment in an HMO at any time if dissatisfied.

A typical contract between the Department of Social Services and an HMO contains:

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You have expressed a concern that HOMs under contract with the Department of Social Services are not providing chiropractic services to Medicaid recipients, even though the above-quoted contract provision specifies chiropractic coverage. Thus, you ask whether there may be a violation of law and the contract.

The HMO, by contract, must provide or arrange to provide practitioners' services such as those provided by a chiropractor. OAG, 1979-1980, No 5503, p 223 (July 5, 1979), tho which you refer in your opinion request, concluded that chiropractic services be provided by a chiropractor and not a doctor of medicine or a doctor of osteopathic medicine and surgery. The opinion made reference to MCL 333.21008(2)(g) and 333.21034(d); MSA 14.15(21008)(2)(g) and 14.15(21034)(d). These sections, which included chiropractic services as a supplemental health care service which must be provided by HMOs three years after initial licensure, were repealed by 1982 PA 354. Therefore, by law, an HMO need not provide chiropractic services. However, such services by contract with the Department of Social Services must be provided by an HMO if the primary physician determines they are medically necessary. This opinion also observed that a doctor of medicine or osteopathy may lawfully treat the same ailments in accordance with the standards of their respective profession. It should be noted the contract between the HMO and the Department of Social Services does not require that a chiropractor be on the staff of the HMO, but provides that such services be arranged if medically necessary. Chiropractic services may be provided by referral, sub-contract or otherwise. Generally, if chiropractic services are found by the primary physician to be medically necessary, the contract requires a referral to a chiropractor for services covered under the Medicaid program. The HMO would pay for those chiropractic services as part of the fixed fee paid to the HMO by the Medicaid program.

The Department of Social Services does not dictate or recommend to an HMO how medical care is to be given or how a given condition is to be treated. The HMO makes the decision for the necessity and type of medical care. The Department of Social Services monitors HMOs to assure that medically appropriate and quality treatment or care for a condition is given or provided. It does not attempt to define which of several acceptable courses of treatment is to be the preferred treatment. The Department of Social Services' basic role is that of bill payer and processer under the Medicaid program and not the provider of medical care. Where several medically acceptable treatments are appropriate, medical judgment and treatment rests in the judgment of the primary physician.

It is my opinion, in answer to your second question, that a health maintenance organization is not in violation of its Medicaid services contract with the Department of Social Services when medically necessary Medicaid services based upon a preferred treatment as determined by the primary physician are provided by a health professional other than a chiropractor where several acceptable treatments are appropriate.

Frank J. Kelley

Attorney General