Michigan Court of Appeals; Docket Nos.150304, 151033, and 151268; Published
Judges Kelly, McDonald, and Griffin; Unanimous; Per Curiam
Official Michigan Reporter Citation: 211 Mich App 55; Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses for Medical Treatment [§3107(1)(a)]
Allowable Expenses: Reasonable Necessity Requirement [§3107(1)(a)]
One-Year Back Rule Limitation [§3145(1)]
Applicability of Limitations Period to Claims by Insurers Against Injured Persons [§3145]
Providers Entitled to Charge Reasonable Amount for Services [§3157]
Prohibition Against Charging No-Fault Insurers More Than Uninsured Patients [§3157]
TOPICAL INDEXING:
Revised Judicature Act – Miscellaneous Provisions
CASE SUMMARY:
In this unanimous published per curiam Opinion, the Court of Appeals addressed numerous issues raised under Michigan's no-fault act, and the Public Health Code relative to the practice of chiropractic treatment, in order to determine whether the expenses for various health care products and services that were provided by plaintiff chiropractors to Auto Club's insureds during the course of chiropractic care are subject to payment as a no-fault benefit The court addressed numerous individual items of care and products provided during the course of plaintiff s chiropractic treatment and ultimately affirmed, reversed and remanded on each individual item.
Auto Club in 1984 made a policy decision that it would no longer pay for certain products and services that were being provided by chiropractors to its insureds, for the reason that the products and services were believed by Auto Club to be outside the permissible scope of chiropractic practice in Michigan, and, therefore, not subject to payment as a no-fault benefit Additionally, Auto Club filed counterclaims alleging that plaintiffs had violated §3157 of the no-fault act by charging more for products and services in cases involving no-fault insurance than they customarily charged in cases not involving insurance. Additionally, Auto Club alleged that plaintiffs violated §3157 by charging and receiving amounts in excess of what plaintiffs had already received from Blue Cross/Blue Shield of Michigan.
After a 32-day bench trial, the trial court issued a written opinion containing rulings both favorable and unfavorable to each side on the above issues. The trial court determined that eight specific products and services were within the scope of chiropractic practice in Michigan: (1) orthopaedic and neurological exams, (2) nutritional analysis and nutritional supplements, (3) cervical supports, cervical pillows and lumbar supports, the use of which constitutes "rehabilitative exercise," (4) cervical, spinal and intersegmental traction, the use of which constitutes rehabilitative exercise, (5) hot/cold packs, (6) SOT blocking and wedges, (7) reevaluation x-rays, and (8) pelvic x-rays. The court concluded that two items of service were outside of the scope of chiropractic licensure, specifically (a) extended care as a separate, unitary concept, and (b) the use of thermographic devices.
Additionally, the trial court found violations with regard to overcharging for products and services in violation of §3157. And finally, the trial court ordered that Auto Club's right of reimbursement for alleged overcharges was limited to a one year statute of limitations period as set forth in §3145(1).
In analyzing the approach of the trial court the Court of Appeals noted initially that while it agreed that the expense for an activity, if included within the scope of chiropractic, may be subject to payment as a no-fault benefit, the court disagreed with the trial court's conclusion that no-fault benefits necessarily are not payable for any expense relating to an excluded activity. The Court of Appeals held that under Attorney General v Beeno, 422 Mich 293 (1985), the Michigan Supreme Court made it clear that the purpose of the licensing statute for chiropractors is not to prohibit the doing of those acts that are excluded from the definition of chiropractic, but was to make it unlawful to do without a license those things that are within the definition. Thus, according to the Court of Appeals herein, to the extent that plaintiffs are found to have engaged in the exercise of a health care activity that is excluded from the statutory scope of chiropractic, that mere fact of exclusion does not, by itself, lead to the conclusion that the activity was unlawfully rendered. The chiropractic statute does not prohibit the exercise of any non-chiropractic health care activity. It only defines chiropractic and requires a person who practices it to be licensed. Beeno, supra, at pages 303-304.
Therefore, with respect to those items which the trial court concluded were not payable because they were not within the scope of chiropractic, the Court of Appeals reversed and remanded for consideration as to whether or not the services or products were "unlawful." If it is determined that the exercise of an excluded activity is not otherwise unlawful, then the trial court was instructed to consider whether the expense was otherwise payable as a no-fault benefit. The test for determining whether a particular service or product is payable as an allowable expense under §3107 is set forth in the no-fault act. The act requires that benefits are payable for expenses "consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery, or rehabilitation." The court noted that nothing in the language of §3107 suggests that a product or service must be provided by a licensed health care provider in order to constitute an allowable expense. Section 3157 expressly indicates that no-fault . benefits may be payable for charges by a "physician, hospital, clinic, or other person." Previous decisions have expressly allowed payment of such expenses for accommodations provided by family members and for the cost of modifying a van for a paraplegic. See, Reed v Citizens Insurance Co, 198 Mich App 443 (1993) and Davis v Citizens Insurance Co, 195 Mich App 323 (1992).
The court then analyzed the scope of chiropractic as statutorily defined in MCLA 333.1640(1 )(b). That statute states:
b. The practice of chiropractic means that discipline within the healing arts which deals with the nervous system and its relationship to the spinal column and its interrelationship with other body systems...
With respect to several specific items challenged by Auto Club, the Court of Appeals determined the following to be within the definition of the practice of chiropractic: (1) pelvic x-rays, (2) cervical pillows, cervical collars, lumbar belts and lumbar supports, (3) cervical and intersegmental traction when used for purposes of correcting a subluxation or misalignment of the vertebral column or related bones and tissues, but excluded when used for therapeutic treatment purposes, (4) SOT blocking (an adjustment procedure used to correct the alignment of the pelvis), (5) the use of hand-held derma thermography instruments when limited to the analysis of the spine.
Conversely, the court concluded that the following services and products were not within the scope of chiropractic licensure: (1) orthopaedic and neurological examinations of non-spinal areas, (2) hot and cold packs, (3) liquid crystal thermography and infrared thermography except for hand-held instruments limited to the analysis of the spine as described above.
With regard to the claim of §3157 overcharges, the Court of Appeals upheld the trial court determination that plaintiffs violated §3157 with regard to non x-ray services. The record established that each plaintiff charged a higher fee for their products and services in cases where no-fault insurance was available than they did in cases not involving insurance. Whether there has been an impermissible §3157 overcharge is determined by looking to the provider's customary charge in cases not involving insurance. The court held that the record established that plaintiffs indeed charged more than their customary charge for non-insurance cases when no-fault insurance was available. Consequently, the trial court finding of overcharge for non x-ray services was upheld.
With regard to x-ray charges, Auto Club took the position that the amounts that plaintiffs were reimbursed by Blue Cross/Blue Shield for x-ray services were to be treated as the "customary charge" for x-rays, rather than the amounts that plaintiffs submitted to Blue Cross as payable charges. In essence, Auto Club was asking the court to establish a rule that in situations where other health or accident insurance coverage does not exist, the obligation of a no-fault carrier must be limited to what a health insurer would have had to pay if health insurance existed, notwithstanding that the health insurer's obligation might be controlled by contract, whereas the no-fault carrier's is not The Court of Appeals rejected this position, and held that since Auto Club did not present evidence of plaintiffs' customary charges for x-rays in other cases, it was constrained to conclude that Auto Club failed to establish a §3157 overcharge violation with respect to x-ray services.
Finally, the Court of Appeals held that Auto Club's counterclaims for overcharges were governed by the six year statute of limitations period described by §5813 of the no-fault act.
