Volume XXIII, No. 28, October 19, 2011
From the Law Offices of Garan Lucow Miller, P.C.
From the Co-Editors
James L. Borin & Simeon R. Orlowski
THE HOFMANN RULE ON COMPENSABILITY OF CHIROPRACTIC CARE HAS BEEN LEGISLATIVELY REVERSED
CONTRIBUTOR – M. SEAN FOSMIRE
Chiropractic is a health discipline that (like podiatry and physical therapy) has a limited-scope practice. Unlike allopathic or osteopathic medicine, which can cover just about anything in the diagnosis or treatment of human ailments, chiropractic is limited to the scope of practice defined under statute. Each state defines the scope of chiropractic practice by legislation. In Michigan, the definition is found in §16401 of the Public Health Code, MCL §333.16401.
When a chiropractor provides a service that goes beyond the scope of practice as defined in Michigan, is that service compensable under the No-fault Act? The answer to that question has been governed in the last 15 years by the decision of the Michigan Court of Appeals in Hofmann v Auto Club Ins Association, 211 Mich App 55 (1995).
The primary ruling in Hofmann was that a particular treatment or activity by a chiropractor can be reimbursable under the No-Fault Act even if it falls outside the scope of chiropractic practice as defined under §16401. So long as the activity is not illegal for the chiropractor to provide (because it falls within the exclusive scope of another practice, such as medicine, osteopathic medicine, etc.), under the ruling a no-fault insurer was not permitted to deny coverage solely on the basis that it was not included within the scope of chiropractic as defined in §16401. The scope of chiropractic, the court said, was not intended to be the exclusive scope within which chiropractors were permitted to treat patients. Even if a particular treatment were to be found to be outside the scope of chiropractic, it could be reimbursable under the No-Fault Act if it was found to be reasonably necessary for the care of the person entitled to benefits, unless it was within the exclusive scope of practice of another discipline.
The court in Hofmann noted that the fact that a particular activity is not authorized under the statute does not make it unlawful. It came to this determination based on the following comment made by the Supreme Court in a previous case, Attorney General v Beno, 422 Mich 293; 373(1985):
“The purpose of the licensing statute is not to prohibit the doing of those acts that are excluded from the definition of chiropractic, but to make it unlawful to do without a license those things that are within the definition.”
As a result of legislative changes made in 2009, that part of the Hofmann ruling has now been reversed.
After many years of advocacy by the Michigan Chiropractic Association, a change in the statute defining the scope of chiropractic was enacted in 2009. Public Act 223 (2009) was signed by the governor and given immediate effect as of January 5, 2010. That Act amended §16401, defining the term “practice of chiropractic”. The most significant changes were the expansion of the scope of diagnosis from the spine to “the human musculoskeletal and nervous systems” and the scope of treatment via chiropractic adjustment from “spinal subluxations or misalignments that produce nerve interference” to “subluxations, misalignments, and joint dysfunction”.
Public Act 223 was tie-barred to several other bills. House Bill 5105, adopted as Public Act 222 (2009), added §3107b(b) to the No-fault Act. That new provision, which became effective January 5, 2010, states:
“Sec. 3107b – Reimbursement or coverage for expenses within personal protection insurance coverage under section 3107 is not required for either of the following:
* * *
“(b) A practice of chiropractic service, unless that service was included in the definition of practice of chiropractic under section 16401 of the public health code, 1978 PA 368, MCL 333.16401, as of January 1, 2009.”
The same provision is essentially found in all of the bills that were tie-barred. All provide that there is no requirement that any insurer provide coverage for the expanded scope of chiropractic under the Public Health Code. Instead, only those treatments and activities which were included in the definition of practice of chiropractic under the old version of §16401 as it existed in January 2009 are required to be reimbursable by insurers. (Of course, any insurer is free to expand its coverage beyond legislative minimums to meet the new scope of practice provisions.)
This was presumably the result of a legislative compromise. Chiropractors were given an expanded scope in which to work, but no insurer would be required to pay for these new services if it did not choose to do so.
This legislative change, perhaps unintentionally, effectuated a reversal of the primary holding of the Hofmann case.
Under Hofmann, a treating activity by a chiropractor could be compensable under no-fault if it was reasonably necessary, even if it fell outside the defined scope of chiropractic practice, so long as it did not constitute unlawful practice of another health discipline or otherwise constitute an illegal act by the chiropractor. Now, since the addition of §3107b(b), it must be established that the activity in question is within the defined scope of the practice of chiropractic, as defined in the Act prior to the 2010 amendment, for it to be reimbursable by no-fault carriers as a matter of mandatory PIP coverage.
WINDY CITY SEMINAR
NOVEMBER 10, 2011
CHICAGO MARRIOTT SUITES O’HARE
6155 North River Rd. | Rosemont | Illinois 60018
To Register email: email@example.com
8:30 – 8:55 A.M. CONTINENTAL BREAKFAST / REGISTRATION
8:55 – 9:00 A.M. WELCOME AND INTRODUCTION
Speaker: DAVID A. COUCH
9:00 – 10:00 A.M. MICHIGAN FIRST PARTY NO-FAULT (PIP) UPDATES
Speaker: JUDITH A. MOSKUS
10:00 – 10:20 A.M. UPDATE ON USING SOCIAL NETWORKING SITES AS A DISCOVERY TOOL
Speaker: DAVID A. COUCH
10:20 – 10:30 A.M. BREAK
10:30 – 11:30 A.M. TIPS & TRICKS OF LITIGATING/TRYING CATASTROPHIC CASES
Speaker: JOHN J. GILLOOLY
11:30 – 12:00 P.M. MICHIGAN THIRD PARTY AUTOMOBILE NEGLIGENCE UPDATES
Speaker: DAVID A. COUCH
12:00 – 12:30 P.M. PANEL DISCUSSION ON DEPOSITION STRATEGIES & TIPS FOR TESTIFYING EFFECTIVELY
Moderator: DAVID A. COUCH
12:30 – 1:00 P.M. QUESTION AND ANSWER SESSION
Return Evaluation Forms
Comprehensive written materials will be distributed to all program attendees. To register please contact Eileen Carty at firstname.lastname@example.org
NEW DATE FOR TROY BREAKFAST SEMINAR
Based on the pending No-Fault legislation which may or may not have been enacted by late October, Garan Lucow Miller, is re-scheduling the Troy Breakfast Seminar for April 19, 2012.