Gen. 81] 81 H EALTH O CC UPATIONS

) I NSURA NCE

) R EIMBURSEMENT OF A CUPUN CTURI STS September 3, 1996

The Honorable Paula C. Hollinger Maryla nd S enate You ha ve re que st edour opini on w h ether acupu ncturists are entitledto r eimbur sement from ins urers f or their servi ces based upon their stat us as li censees under

the Maryl and Acupuncture Act of 1994, Titl e 1A of the Healt h Occupations ( “HO”) Article , Maryland Code. In oth er w ords, d o licen sed a cupu ncturis ts no w have t he same right to reimbu rseme nt as physician s who perform acupu ncture? In a d diti on, you aske d w hethe r license d acu pun cturists a re entitled to reimbursement

und er the C om preh ensiv e Stan dard He alth B enefit Plan establ ished pur suant t o Subtitle 55 of Articl e 48A, the Insu ran ce C ode

. Our opinionis as follows: U nder the M aryland A cupun cture Ac t, a part of

the Health Occupati ons Articl e, acupunct urist s are now fully and independently li censed heal th care p rovi ders. Accordingly, they are ent itl ed to reimbursement by insur ance companies f or any me dicall y necessary service rende red within the lawful sco pe of their lice nsed practice. Insurers may no t deny reim burse me nt to acup unctu rists based si mply on their stat us and may not enforce policyprovisi ons that

purport to limit rei mbursement to physi cians only. However, the Gene ral Assembly has not identifi ed acup unctu re as a mandated benef it; theref ore, hea lth insurance pol icies are n ot re qui red to co ver acu pun ctur e se rvic es. As to the Comprehensive Stan dard Health Benefi t Plan, acupu ncture is a covered servi ce. Theref ore, i f acupunct

ure ser vices are prov id ed pursuant

to a smallgroup poli cy, the insur er may not deny reimbursem ent to licensed acupuncturis ts.82 [81 O p. Att’y

I Entit lement t o Reimbursement In Chap ter 578 of the L aws o f Ma ry lan d 1979, the General Ass em bly provided t

hatwhenever an insurance poli cy provided “ for reimbursement

for anyservi ce which is wit hin the l awful scope of practi ce of a duly l icensed health care p rovid er, the in sured ... shall be en titled to reimbursement for such servi ce.” I n Chapter 522 of the La ws of M arylan d 19 84, this b asic pr ovisio n w as ex tende d to coverall t

ype s of h ealth insurance poli cies, including group and indivi dual polici es and poli cies i ssued by nonprof it hea lth s ervice plans . The law, a s it now stand s, prov ides tha t:

[W]heneversuch poli cy, co nt ract, or certificate provides for re imbursement for any servi ce wh ich is within t he lawful s cope of practi ce of a health care provi der duly l icensed underthe Healt

h Occupations Article , the insure d, o r any other

person cover ed by, or entitle d to reimbursement under, t he polic y, contra ct, or certific ate, sha ll be en titled to reimbursement f

or such ser

vice. Article 48A , §470U (a). See also Articl e 48A, §§354Z and 490A-1.
Thus, under the Insurance Code, all medic al providers w ho are lice nsed under the Heal th Occupati ons Artic le and provi de a servi ce with in the lawful scope of their practi ce are ent itl ed to be re imbursed by insurers for t

hat service. A health i nsu ran ce company may not reser ve paym ent only for c hosen categories of provider s. To take but one ex amp le , l ic en se d c lini ca l s oc ia l wo rke rs provi de psychother apy for m ental d isorde rs. HO §19 -101 (f). Bec ause their scope of practice ext ends to t his ser vice, these s oc ial w orkers are entitled to reimbursementfor provi ding psychot herapy. Under the Insuranc e Co de, reim burse me nt m ay no t be de nied b y a he alth insure r solely because the treatment was perf ormed by a social wo rker in stead o f a psy chiatrist. In short, if the Ge neral A ssem bly h as de term ined th at a lice nsed hea lth ca re p rov ider is ab le to p erfo rm a giv en s erv ice, a nGen. 81] 83

1 Other licensees who perform acupuncture

)physicia

ns, dentists, and veterinarians

)are exempt from obtaining a license from the (continued...) insure r ma y no t deny reim burse me nt for th at serv ic e based on the licensing status of the p rovider.

II

The M aryland Acupuncture Act Acu puncture is a “f

orm of healt

h care, based on a theory of energ etic physiol ogy, that describes the interrel ations hip of t he body org ans or fun ctions w ith an a ssocia ted po int or co mb inatio n o f poi nts.” HO §1A -101(b). The practi ce of acupunct ure includes sti mulat ion of point s of the body by the ins erti on of needle s, t he applic ationof m oxib ustion (a form of he at thera py), an d “[m ]anu al, me chan ical, therm al, or elec trical thera pies o nly w hen p erform ed in acc ordance with the prin ciples o f orien tal acu pun cture m edic a l theories.” HO §1A -101(e)(2). In 1994, the Legi slatur e adop ted the M aryland A cupun cture Ac t, H O T itle 1A. T his Act crea ted the State A cupun cture Bo ard (“Board”) in the D epartm ent of H ealth a nd M ental H ygien e to oversee t he pract ice of a cupuncture

. Prior to 1994, acupuncturists were regist ered, not li cense d. See formerHO §14-506. Acupuncturis ts were not consider ed to be independent

health care pro viders but co uld perf o rm acu puncture “onl y unde r the gene ral s upervis ion of a l icensed phys ician.” Id

. They were regulated in c onjuncti on with physi cians by t he Board of Physi cian Q uality A ssuran ce. B ecau se acu pun cturists w ere no t fully lice nsed health care provi ders, insure rs were ent itl ed to, and appa rently did, routi nely deny re imbursement for servi ces rendered by nonphysician acupuncturists. In 199 4, two companion bill s, House Bil l 967 andSen ate B ill 78, were introduced in the General Assem bly to address th e lice nsing statu s of a cup unc turis ts. House Bill 967 eventual ly passe d and be came HO Title 1A , the M ary land Ac upu nctu re A ct. This Act spec ifically requir ed indivi duals who perf orm acupuncture to be l icensed by the State Acupuncture Board. HO §1A -301. 1 As a84 [81 O p. Att’y

1 (...continued) Acupuncture Board. SeeHO §1A-102. result, acupuncturists now meet the precise terms of the pertinent secti ons of

th e I ns ur an ce Cod e, wh ich re quire r eimbursement t o a “hea lth care provi der du ly li censed under t he Health Occupat ions Ar ticle.” See , Arti cle 48A, §§354Z, 470U and 490 A-1. Based on this langu ag e a lo ne , w e would conclude t hat acupunct

urist s meet the reimbursement s tandards of the I nsurance Code. The legis lative hist ory of t he Act co nf i rms this conclusi on and discl oses an un mista kabl e inten t to gran t acup unctu rists full, independent

lice nsing st atus. The Sen at e Economic and EnvironmentalAffair s Comm itt ee explai ned the conc ept of th e bill as follows: The practi ce of acupunct ure has evolved since 19 82 whe n i t was as si gn edt o the me dica l bo ard for over sight . Pati ents now bett er underst and what acupunctur e is an d p hysici ans are evi dencing gre ater a cceptanc e of acup uncture a s an eff ecti ve treatment modality. Experience ha s shown that continue d generalsupervi sion of acupu ncture treat ments by a physic ian is unnecessar y. Sen ate Bill 7 8 of 1 994, Bil l Analysi s. The House Environmenta l Ma tters Comm itt ee had a si milar vi ew of the gener al purpos e of the bill: Bill Ratio nale : Acupuncture has come to be

accepted by physici ans and pati ents al ike as an effective treat

ment met h od. This di scipl ine does not require physici an oversi ght, and will be bette r serve d by indivi duals who have experti se in acupunc ture. House Bill 967 of

1994, Bil l Summary. The clear p urpo se an d effec t of the A cupu ncture Ac t was to recogniz e licensed acupuncturists as fully capable of perfor ming acupu ncture without phys ician ov er sight . Accordingly, the Act cr eate d an independent

board of exper

ts i n the fi eld to regulat e theGen. 81] 85

2 The Board also has disciplinary authority over licensed acupuncturists. SeeHO §1A-309. ac tiv iti es of li censed acupunct urist s and to det ermine which practitioners mee t the statutory licensing st andards. 2 The creati on of this licensin g bo ard u nder the H ealth O ccup ati ons Ar ticl e and the removal of acu pun cturists from the super visi on of phy sicians clearly dem onstra te that it is now unlawful under t he Insurance Code for an insure r to de ny reimbursement to an acupuncturist based on that individual’s l icensure status. In sum, HO §1A-201 establ ishes t he State Ac upunc ture Boa rd to issue lice nses to practi ce acupuncture. HO §1A-305 defines t he scope of the l icense t hat authorizes the li censee to pr acti ce acupunctur e. As a result , the Maryland Insur ance Code requires reimbursement

to licensed acu puncturists for m edically nece ssary servi ces ren der ed w ithin the s cop e of their licen se. Ar ti cl e 4 8A, §§354 Z, 470U, and 490A-1. Reim burse me nt m ay no t be lim ited to ph ysi cianacupunctur ist s because of the ins urer’ s prefe rence for p ractiti oners with a medicaldegree. Insuranc e polic y terms to t he contrar y are unenforceable.

III Scope of Mandated Benefit Provi sio ns The secti ons of

the Ins urance Code that requir e reimburse ment for servic es render ed by a li censed acupunct urist apply only i f the insurance policy itself

“provides for re imbursement” for the servi ce. See Articl e 48A, §§354Z, 470U, 490A-1. For the reaso ns set fo rth in Parts Iand II abo ve, if a polic y “provides for re imbursement” for acupunctur e, then the Insuranc e Code would prohibi t an insure r from limiting reimburse men t to phy sician a cupu ncturis ts. Ho we ver, in creat ing the State Acupuncture Board, the GeneralAssembly did not ma ke ac upu ncture a sep arate m anda ted be nefit. Article 48A, §490M defines mandated benef it as a “stat

ute that re qui res a parti cular he alth c are ser vice, benefit , covera ge, or reimbursement

for cover ed healt

h care ser

vices to be pro vided or offer ed in a he alth insu rance policy or co ntract i ssued ordelive red in the State by a non-pro fit health service plan o r b y a co mm ercia l ins ur er.” Throughout the Insuranc e Code, the Legi slat ure has86 [81 O p. Att’y required he alth insurers to cover many diff erent t ypes of mandated benefits. See, e. g. , Arti cl e 48A, §§470 E (tr eat ment of mental illness), 470M (se rvi ces of a nu rse midw ife), 470Q (h ospice care services), 470T (servi ces of a nurse anes thetist), an d 35 4Q (ben efits forpro sthe tic de vice s). Acupuncture ser vices are not inc luded in t he Insuranc e Code as a mandated benefit. Ther efore, insurance poli cies are not required to specif ical ly cover a cupuncture servi ce. Unless acupunctur e is spe cifi call y ex cl uded, ho wev er, reimbursement

nevertheless w ould be req uired w here acup uncture is perform ed to treat a con dition for wh ich recogn ized treatme nts are gene rally covered by the policy. Ac upunc ture is consi dered to be a l eg i t i ma te medi cal treat ment for a num ber of different conditions. If acupunctur e is per formed as a medical ly necess ary tr eatment for one of thes e con ditions , reim burse me nt cou ld no t be de nied s imp ly because the servi ce was not perf ormed by a physici an.

IV Com prehensive Standard Benefit Plan Article 4 8 A, §700 directs the Maryland H ealth Care Access an d Co st Co mm ission to adop t regula tions sp ecifyin g the b enefits that mu st be inc luded in the comprehensive standard benefit plan for the small group market . These re gulati ons have been adop ted at COMAR 09.31.05. 03. Under thes e regulations , the term “covered s ervices” includes many different benefits

)for ex am ple , chirop ractic servi ces, hos pice car e servi ces, dur able medical equip me nt, and numerous other benefit s. Acupunctur e is not spec ifically lis ted ei ther as a covered benef it or as an excluded ben efit. See COM AR 09.31.05.03 and 09. 31.05.06. In determining the meaning of t hese regul ations , we apply t he same analysi s that

is appl icab le to statu tory con struc tion

. In Re Victor B ., 336 Md. 85, 94, 646 A.2d 1012 (1994). Where the stat ut e, or in thi s case t

he regulation, does not r eadil y supply the answ er, we examine the conte xt in whichthe regul ation was adopted and the h istor y of

the r egu latio n. Dick erson v. State , 324 M d. 163, 172, 596 A.2 d 64 8 (19 91); Ka czo row ski v

. City o f Baltimore , 309 Md . 505, 515, 52 5 A.2d 628 (19 87).Gen. 81] 87 The regu latory h istory in this cas e in dic ates t hat when the Comprehensive Standard Bene fit Plan was o riginally pro pos ed, acupu ncture was no t lis ted as a c overed ser vice. The Comm issi on soli cite d com men ts on the prop osed C om prehensiv e Standa rd Ben efit Plan and d id rece ive co mm ents o bjectin g to th e percei ved intention to exclude acupunctur e from the P lan. The C om mission’s staf f reported: Staff

recommends no change in the regulations. Although acu puncture s ervice s are not speci fical ly addres sed in t he regulations, the regul ations cover care in medical offi ces for

treat ment of il lness or injury a s we ll as m ental h ealth and substance abuse servi ces t hrough a ma naged care sy st em. Th us, to the exten t that m edica lly necessary acup unctu re was performed by a lice nsed health care pr act iti oner, it would be covered. Re port to the Heal th Care Access and Cost Comm issi on at2. Th e Comm issi on then a dop ted the regu lations w ithout s pecific ally refer ring t o acupunctur e. Itis appar ent that the Com mi ssion in tende d m edica lly necessary acupunctur e to be a cover ed servi ce un der the gener al provisi ons covering medic al offi ce visi ts. Accordingly, readin g this regulation to effec tuate th e Co mm issio n ’s intent, we conclude that me dically necessary acupuncture is a covered se rvice and is therefore com pens able u nder the C om preh ensiv e Stan dard Ben efit Plan. We would also not e that acupunctur e could be s pe cifically offer ed pur sua nt to CO M AR 09.3 1.05 .07, “ Ad ditio nal B ene fits,” at the discr etion of

the carri er through indivi dual negot iati ons with the employers. In any case, if acupunc ture i s offered a s an addit ional benef itor is pe rform ed un der the gene ral pro vision s of th e Com pre hensi ve Standard Benef it Pl an, then of cours e lic ensed acup unctu rists would be enti tled to reimbursem en t under t he Insuranc e Code.88 [81 O p. Att’y V Conclusion In sum ma ry, it is our o pinion that: 1. By virtue o f the M arylan d A cupu ncture Ac t, acup unctu rists are entitled to be reim bursed for ac upuncture s ervice s perfor med by them in accordance wit h their lice nse. 2. If an insurance policy covers acupuncture benefits, insurers may not limit

reimbursementto physi cian acupunct urist s or otherwise deny reimburse ment to li censed acupunct urist s basedon their li censure status. 3. Under the Ins urance Code, acupuncture is not a mandated bene fit for i nsurance polic ies generally. Insurer s are t herefor e not required to offer acupuncture benefit s. 4. Acupun ctu re is a covered servi ce under the Comp rehensi ve Standard Heal th Benefi t Plan f or the s mall group employermarket, and a cupuncture servi ces perf ormed by licens ed acu pun ctur ists a re re im bur sab le. J. Joseph C urran, Jr. AttorneyGeneral De nnis W . Carro ll Assist ant Attorney General Jack Sch wa rtz Chief Counsel Opinions and Advic e