February 16, 2016
Whether certain chiropractic services are reimbursable as an allowable expense under Michigan’s No-Fault Act has been the subject of ongoing debate. In 2009, the Michigan Legislature adopted an expanded definition of the scope of practice of chiropractic in Michigan. The No-Fault Act, however, was amended to include language exempting insurer from having to reimburse for procedures within the expanded scope. Thus, providers and patients have sought recovery for services under the Public Health Code’s broadened conception of “practice of chiropractic services.” MCL 333.16401, while carriers have continued to rely on the No-Fault Act which states that “practice[s] of chiropractic service” are reimbursable under MCL 500.3107b(b), assuming that the services fall within the Public Health Code definition of “practice of chiropractic” as it existed on January 1, 2009. A recent, published, Court of Appeals decision addresses this tension.
In Measel v Auto Club Group Insurance Company, __ Mich ___, ___ NW2d ____ (2016)(Docket No. 324261), the Court of Appeals addressed whether a new patient examination, ultrasound therapy and massage therapy fell within the scope of reimbursable chiropractic services under the No-Fault Act. The provider clinic billed Auto Club and Blue Cross Blue Shield for the treatments. Auto Club denied reimbursement explaining the services were outside the scope of chiropractic in Michigan and were therefore not allowable expenses.
Plaintiff Measel filed suit in District Court seeking payment by Auto Club for the services. Auto Club filed a motion for summary disposition arguing the new patient exam, massage therapy and ultrasound therapy fell outside the Public Health Code’s definition of “practice of chiropractic” as it existed on January 1, 2009 (MCL 333.1101 et seq), and were therefore excluded from reimbursement under MCL 500.3107b(b). Plaintiff argued the services fell under the new definition of “practice of chiropractic” provided by MCL 333.16401, effective January 5, 2010. Plaintiff also argued the services were reimbursable regardless because they were reasonably necessary for her accident-related care. The District Court refused to address whether the services fell under the “practice of chiropractic” and instead determined that the only issue was whether the services were lawfully rendered and reasonably necessary for plaintiff’s accident-related care. The District Court found this to be a question of fact for the jury and so denied Auto Club’s motion for summary disposition.
Auto Club and plaintiff stipulated that the services at issue were reasonably necessary for plaintiff’s care, and that the amounts charged were reasonable. Auto Club reserved the right to appeal the denial of its motion for summary disposition, however. On appeal to the Circuit Court, the Circuit Court found that the District Court erred by simply assuming the services fell outside the scope of chiropractic before considering whether they were lawfully rendered and reasonably necessary. Interestingly, although the Circuit Court concluded the ultrasound and massage therapies fell outside the “practice of chiropractic” as it existed on January 1, 2009, the Circuit Court nonetheless concluded that the services were reimbursable because they were lawfully rendered and reasonably necessary for plaintiff’s care. Auto Club sought further appellate review from the Michigan Court of Appeals.
The Court of Appeals first noted that if a service falls within PIP coverage under MCL 500.3107, but is a “practice of chiropractic service” under MCL 500.3107b(b), reimbursement is only required under the No-Fault Act if the service was included in the definition of “practice of chiropractic” under MCL 333.16401 as that statute existed on January 1, 2009. Based upon Auto Club’s admission that the services rendered were reasonably necessary for plaintiff’s care, the services fell within PIP coverage under MCL 500.3107. The Court then looked to whether each of the services was a “practice of chiropractic service” for purposes of MCL 500.3107b(b). The Court concluded that a service is only “[a] practice of chiropractic service” for purposes of MCL 500.3107b(b) if that service falls under the current definition of “practice of chiropractic” provided by MCL 333.16401.
Applying the terms of MCL 333.16401, the Court concluded that the new patient examination, ultrasound therapy, and massage therapy all fell within the current definition of “practice of chiropractic” under MCL 333.16401. Therefore, each of the services is “[a] practice of chiropractic service” for purposes of MCL 500.3107b(b). This conclusion remains true even if the services were performed by ultrasound technicians and massage therapists, rather than a licensed chiropractor. Pursuant to MCL 500.3107b(b), then, reimbursement by Auto Club was not required unless the service was included in the definition of “practice of chiropractic” provided by MCL 333.16401 as of January 1, 2009.
Applying the definition of “practice of chiropractic” provided by MCL 333.16401 as of January 1, 2009, the Court concluded that because the chiropractor’s new patient examination considered plaintiff’s “whole body system”, and not just the spinal source of plaintiff’s subluxations or misalignments, the examination exceeded the scope of the definition of “practice of chiropractic” in that former statute. With regard to the ultrasound treatment, the Court noted that Attorney General v Beno, 422 Mich 293 (1985) specifically held the use of ultrasound devices for therapeutic services was outside the scope of chiropractic service because it showed an intent to treat areas other than just the human spine. Finally, the Court concluded the massage therapy was not reimbursable because the massages were not limited to the neck and spine and thus exceeded the scope of chiropractic practice as contemplated by the former statute.
The significance of the Measel decision is that it illustrates the higher courts’ continued intention to strictly interpret the No-Fault Act. It remains to be seen whether Measel leads to legislative action to amend MCL 500.3107b(b) to achieve harmony with the Public Health Code, or whether the Michigan’s Supreme Court will be asked to provide further appellate review of this issue.
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