Gen. 81] 81

HEALTH OCCUPATIONS ) INSURANCE ) REIMBURSEMENT OF

ACUPUNCTURISTS

September 3, 1996

The Honorable Paula C. Hollinger

Maryland Senate

You have requested our opinion whether acupuncturists are

entitled to reimbursement from insurers for their services based upon

their status as licensees under the Maryland Acupuncture Act of

1994, Title 1A of the Health Occupations (“HO”) Article, Maryland

Code. In other words, do licensed acupuncturists now have the same

right to reimbursement as physicians who perform acupuncture? In

addition, you asked whether licensed acupuncturists are entitled to

reimbursement under the Comprehensive Standard Health Benefit

Plan established pursuant to Subtitle 55 of Article 48A, the

Insurance Code. 

Our opinion is as follows: Under the Maryland Acupuncture

Act, a part of the Health Occupations Article, acupuncturists are now

fully and independently licensed health care providers. Accordingly,

they are entitled to reimbursement by insurance companies for any

medically necessary service rendered within the lawful scope of their

licensed practice. Insurers may not deny reimbursement to

acupuncturists based simply on their status and may not enforce

policy provisions that purport to limit reimbursement to physicians

only. However, the General Assembly has not identified

acupuncture as a mandated benefit; therefore, health insurance

policies are not required to cover acupuncture services. 

As to the Comprehensive Standard Health Benefit Plan,

acupuncture is a covered service. Therefore, if acupuncture services

are provided pursuant to a small group policy, the insurer may not

deny reimbursement to licensed acupuncturists.
82 [81 Op. Att’y

I

Entitlement to Reimbursement

In Chapter 578 of the Laws of Maryland 1979, the General

Assembly provided that whenever an insurance policy provided “for

reimbursement for any service which is within the lawful scope of

practice of a duly licensed health care provider, the insured ... shall

be entitled to reimbursement for such service.” In Chapter 522 of

the Laws of Maryland 1984, this basic provision was extended to

cover all types of health insurance policies, including group and

individual policies and policies issued by nonprofit health service

plans. The law, as it now stands, provides that:

[W]henever such policy, contract, or

certificate provides for reimbursement for any

service which is within the lawful scope of

practice of a health care provider duly licensed

under the Health Occupations Article, the

insured, or any other person covered by, or

entitled to reimbursement under, the policy,

contract, or certificate, shall be entitled to

reimbursement for such service.

Article 48A, §470U(a). See also Article 48A, §§354Z and 490A-1.

Thus, under the Insurance Code, all medical providers who are

licensed under the Health Occupations Article and provide a service

within the lawful scope of their practice are entitled to be reimbursed

by insurers for that service. A health insurance company may not

reserve payment only for chosen categories of providers. To take

but one example, licensed clinical social workers provide

psychotherapy for mental disorders. HO §19-101(f). Because their

scope of practice extends to this service, these social workers are

entitled to reimbursement for providing psychotherapy. Under the

Insurance Code, reimbursement may not be denied by a health

insurer solely because the treatment was performed by a social

worker instead of a psychiatrist.

In short, if the General Assembly has determined that a

licensed health care provider is able to perform a given service, an
Gen. 81] 83

1

 Other licensees who perform acupuncture ) physicians, dentists,

and veterinarians ) are exempt from obtaining a license from the

(continued...)

insurer may not deny reimbursement for that service based on the

licensing status of the provider.

II

The Maryland Acupuncture Act

Acupuncture is a “form of health care, based on a theory of

energetic physiology, that describes the interrelationship of the body

organs or functions with an associated point or combination of

points.” HO §1A-101(b). The practice of acupuncture includes

stimulation of points of the body by the insertion of needles, the

application of moxibustion (a form of heat therapy), and “[m]anual,

mechanical, thermal, or electrical therapies only when performed in

accordance with the principles of oriental acupuncture medical

theories.” HO §1A-101(e)(2).

In 1994, the Legislature adopted the Maryland Acupuncture

Act, HO Title 1A. This Act created the State Acupuncture Board

(“Board”) in the Department of Health and Mental Hygiene to

oversee the practice of acupuncture.

Prior to 1994, acupuncturists were registered, not licensed. See

former HO §14-506. Acupuncturists were not considered to be

independent health care providers but could perform acupuncture

“only under the general supervision of a licensed physician.” Id.

They were regulated in conjunction with physicians by the Board of

Physician Quality Assurance. Because acupuncturists were not fully

licensed health care providers, insurers were entitled to, and

apparently did, routinely deny reimbursement for services rendered

by nonphysician acupuncturists.

In 1994, two companion bills, House Bill 967 and Senate Bill

78, were introduced in the General Assembly to address the

licensing status of acupuncturists. House Bill 967 eventually passed

and became HO Title 1A, the Maryland Acupuncture Act. This Act

specifically required individuals who perform acupuncture to be

licensed by the State Acupuncture Board. HO §1A-301.1

 As a
84 [81 Op. Att’y

1

 (...continued)

Acupuncture Board. See HO §1A-102.

result, acupuncturists now meet the precise terms of the pertinent

sections of the Insurance Code, which require reimbursement to a

“health care provider duly licensed under the Health Occupations

Article.” See, Article 48A, §§354Z, 470U and 490A-1. Based on

this language alone, we would conclude that acupuncturists meet the

reimbursement standards of the Insurance Code.

The legislative history of the Act confirms this conclusion and

discloses an unmistakable intent to grant acupuncturists full,

independent licensing status. The Senate Economic and

Environmental Affairs Committee explained the concept of the bill

as follows:

The practice of acupuncture has evolved since

1982 when it was assigned to the medical

board for oversight. Patients now better

understand what acupuncture is and

physicians are evidencing greater acceptance

of acupuncture as an effective treatment

modality. Experience has shown that

continued general supervision of acupuncture

treatments by a physician is unnecessary.

Senate Bill 78 of 1994, Bill Analysis. The House Environmental

Matters Committee had a similar view of the general purpose of the

bill:

Bill Rationale: Acupuncture has come to be

accepted by physicians and patients alike as an

effective treatment method. This discipline

does not require physician oversight, and will

be better served by individuals who have

expertise in acupuncture.

House Bill 967 of 1994, Bill Summary.

The clear purpose and effect of the Acupuncture Act was to

recognize licensed acupuncturists as fully capable of performing

acupuncture without physician oversight. Accordingly, the Act

created an independent board of experts in the field to regulate the
Gen. 81] 85

2

 The Board also has disciplinary authority over licensed

acupuncturists. See HO §1A-309.

activities of licensed acupuncturists and to determine which

practitioners meet the statutory licensing standards.2 The creation of

this licensing board under the Health Occupations Article and the

removal of acupuncturists from the supervision of physicians clearly

demonstrate that it is now unlawful under the Insurance Code for an

insurer to deny reimbursement to an acupuncturist based on that

individual’s licensure status.

In sum, HO §1A-201 establishes the State Acupuncture Board

to issue licenses to practice acupuncture. HO §1A-305 defines the

scope of the license that authorizes the licensee to practice

acupuncture. As a result, the Maryland Insurance Code requires

reimbursement to licensed acupuncturists for medically necessary

services rendered within the scope of their license. Article 48A,

§§354Z, 470U, and 490A-1. Reimbursement may not be limited to

physician acupuncturists because of the insurer’s preference for

practitioners with a medical degree. Insurance policy terms to the

contrary are unenforceable.

III

Scope of Mandated Benefit Provisions

The sections of the Insurance Code that require reimbursement

for services rendered by a licensed acupuncturist apply only if the

insurance policy itself “provides for reimbursement” for the service.

See Article 48A, §§354Z, 470U, 490A-1. For the reasons set forth

in Parts I and II above, if a policy “provides for reimbursement” for

acupuncture, then the Insurance Code would prohibit an insurer from

limiting reimbursement to physician acupuncturists. However, in

creating the State Acupuncture Board, the General Assembly did not

make acupuncture a separate mandated benefit.

Article 48A, §490M defines mandated benefit as a “statute that

requires a particular health care service, benefit, coverage, or

reimbursement for covered health care services to be provided or

offered in a health insurance policy or contract issued or delivered

in the State by a non-profit health service plan or by a commercial

insurer.” Throughout the Insurance Code, the Legislature has
86 [81 Op. Att’y

required health insurers to cover many different types of mandated

benefits. See, e.g., Article 48A, §§470E (treatment of mental

illness), 470M (services of a nurse midwife), 470Q (hospice care

services), 470T (services of a nurse anesthetist), and 354Q (benefits

for prosthetic devices). Acupuncture services are not included in the

Insurance Code as a mandated benefit. Therefore, insurance policies

are not required to specifically cover acupuncture service.

Unless acupuncture is specifically excluded, however,

reimbursement nevertheless would be required where acupuncture

is performed to treat a condition for which recognized treatments are

generally covered by the policy. Acupuncture is considered to be a

legitimate medical treatment for a number of different conditions.

If acupuncture is performed as a medically necessary treatment for

one of these conditions, reimbursement could not be denied simply

because the service was not performed by a physician.

IV

Comprehensive Standard Benefit Plan

Article 48A, §700 directs the Maryland Health Care Access

and Cost Commission to adopt regulations specifying the benefits

that must be included in the comprehensive standard benefit plan for

the small group market. These regulations have been adopted at

COMAR 09.31.05.03. Under these regulations, the term “covered

services” includes many different benefits ) for example,

chiropractic services, hospice care services, durable medical

equipment, and numerous other benefits. Acupuncture is not

specifically listed either as a covered benefit or as an excluded

benefit. See COMAR 09.31.05.03 and 09.31.05.06.

In determining the meaning of these regulations, we apply the

same analysis that is applicable to statutory construction. In Re

Victor B., 336 Md. 85, 94, 646 A.2d 1012 (1994). Where the

statute, or in this case the regulation, does not readily supply the

answer, we examine the context in which the regulation was adopted

and the history of the regulation. Dickerson v. State, 324 Md. 163,

172, 596 A.2d 648 (1991); Kaczorowski v. City of Baltimore, 309

Md. 505, 515, 525 A.2d 628 (1987).
Gen. 81] 87

The regulatory history in this case indicates that when the

Comprehensive Standard Benefit Plan was originally proposed,

acupuncture was not listed as a covered service. The Commission

solicited comments on the proposed Comprehensive Standard

Benefit Plan and did receive comments objecting to the perceived

intention to exclude acupuncture from the Plan. The Commission’s

staff reported:

Staff recommends no change in the

regulations. Although acupuncture services

are not specifically addressed in the

regulations, the regulations cover care in

medical offices for treatment of illness or

injury as well as mental health and substance

abuse services through a managed care

system. Thus, to the extent that medically

necessary acupuncture was performed by a

licensed health care practitioner, it would be

covered.

Report to the Health Care Access and Cost Commission at 2. The

Commission then adopted the regulations without specifically

referring to acupuncture.

It is apparent that the Commission intended medically

necessary acupuncture to be a covered service under the general

provisions covering medical office visits. Accordingly, reading this

regulation to effectuate the Commission’s intent, we conclude that

medically necessary acupuncture is a covered service and is

therefore compensable under the Comprehensive Standard Benefit

Plan.

We would also note that acupuncture could be specifically

offered pursuant to COMAR 09.31.05.07, “Additional Benefits,” at

the discretion of the carrier through individual negotiations with the

employers. In any case, if acupuncture is offered as an additional

benefit or is performed under the general provisions of the

Comprehensive Standard Benefit Plan, then of course licensed

acupuncturists would be entitled to reimbursement under the

Insurance Code.
88 [81 Op. Att’y

V

Conclusion

In summary, it is our opinion that:

1. By virtue of the Maryland Acupuncture Act,

acupuncturists are entitled to be reimbursed for acupuncture services

performed by them in accordance with their license.

2. If an insurance policy covers acupuncture benefits,

insurers may not limit reimbursement to physician acupuncturists or

otherwise deny reimbursement to licensed acupuncturists based on

their licensure status.

3. Under the Insurance Code, acupuncture is not a mandated

benefit for insurance policies generally. Insurers are therefore not

required to offer acupuncture benefits.

4. Acupuncture is a covered service under the

Comprehensive Standard Health Benefit Plan for the small group

employer market, and acupuncture services performed by licensed

acupuncturists are reimbursable. 

J. Joseph Curran, Jr.

Attorney General

Dennis W. Carroll

Assistant Attorney General

Jack Schwartz

Chief Counsel

 Opinions and Advice