Kansas Attorney General Opinion 1992-004

ROBERT T. STEPHAN
ATTORNEY GENERAL
January 10, 1992
ATTORNEY GENERAL OPINION NO. 92- 4
The Honorable Arthur W. Douville
State Representative, Twentieth District
9600 Woodson
Overland Park, Kansas 66207-2844
Re: Insurance--General Provisions--Insurance Coverage
to Include Reimbursement or Indemnity for Services
Performed by Optometrist, Dentist or Podiatrist
Synopsis: An insurance plan covering a service that can be
provided by two different licensed professionals
cannot categorically deny reimbursement to one
without violating K.S.A. 40-2,100 when (1) the
service provided is covered by the contract; and
(2) the service provided is within the lawful scope
of practice under the healing arts act; and (3) the
service was provided by a podiatrist, optometrist
or dentist within the lawful scope of his/her
license. Cited herein: K.S.A. 40-231; 40-2,100;
65-2001.
Dear Representative Douville:
As representative of the twentieth district you inquire
whether an insurer's contract, plan or agreement violates
K.S.A. 40-2,100 by categorically excluding doctors of podiatry
(podiatrists) or by subjecting them to a maximum reimbursement
annually. You indicate the questions arise under the
following conditions:

1. When an insurer enters into a contract, plan or agreement
with a preferred provider organization (PPO) for the
reimbursement or indemnification of medical or health expenses
for services which fall within the lawful scope of practice of
doctors of podiatry;
2. when the service that podiatrists provide is covered by
the plan that the PPO has contracted to indemnify on behalf of
the insurer; and
3. when no maximum reimbursement annually is applied to
doctors of medicine or doctors of osteopathy.
The issue presented by the first part of your question is
whether an insurance plan covering a service that can be
provided by two different licensed professionals can
categorically deny reimbursement to one.
K.S.A. 40-2,100 is a "mandated-provider" statute that
effectively mandates reimbursement for any covered service
to be made to any licensed practitioner acting within the
lawful scope of his license under the healing arts act, K.S.A.
65-2801 et seq. See Blue Cross and Blue Shield of
Kansas City v. Bell, 798 F.2d 1331 (10th Cir. 1986).
The statutes states:
"Notwithstanding any provision of any
individual, group or blanket policy of
accident and sickness, medical or surgical
expense insurance coverage or any
provision of a policy, contract, plan or
agreement for medical service, issued on
or after the effective date of this act,
whenever such policy, contract, plan or
agreement provides for reimbursement or
indemnity for any service which is
within the lawful scope of practice of
any practitioner licensed under the
healing arts act of this state,
reimbursement or indemnification under
such policy contract, plan or agreement
shall not be denied when such services
are performed by an optometrist, dentist
or podiatrist acting within the lawful
scope of their license." (Emphasis added).

The interpretation of a statute is a question of law and it
is the court's function to interpret the statute to give it
the intended effect. Unified School District No. 279 v.
Sec'y of the Kansas Department of Human Resources, 247
Kan. 519, 524 (1990). The fundamental rule of statutory
construction is that the purpose and intent governs when that
intent can be ascertained from the statute. Where the
language of a statute is plain and unambiguous and appropriate
to an obvious purpose, there is no room for judicial
construction or interpretation and the court must give effect
to the intention of the legislature as expressed. Johnson v.
McArthur, 226 Kan. 128 (1979). With this guidance, we
look to the language of the statute.
The act requires any individual, group or blanket policy of
accident and sickness, medical or surgical or any policy,
contract, plan or agreement for medical service must reimburse
optometrists, dentists or podiatrists. When:
1. The service provided is covered by the policy;
2. the service provided is within the lawful scope of
practice under the healing arts act; and when
3. the service provided by an optometrist, dentist or
podiatrist is within the scope of his/her license. When all
these requirements are met, the statute requires that a
podiatrist, optometrist or dentist must be reimbursed for his
or her service even though another licensed professional could
have provided the same service.
The statute in question does not require that PPO's include
doctors of podiatry as recognized health care providers.
Consequently, the act is not violated by their exclusion per
se. However, if a service that is covered by the contract
can be provided by a podiatrist, the act requires that the
covered service be reimbursed or indemnified if the service
could have been provided by any practitioner licensed under
the healing arts act. So in short, doctors of podiatry cannot
be denied reimbursement if their services are covered by a
plan and if what they do is within their lawful practice.
In addition to not requiring any particular provider, the
statute does not require that any particular service (such as
that provided by an optometrist, podiatrist or dentist) be
included in any policy. The statute merely states that when a
policy covers a service that the service will be reimbursed or
indemnified regardless of what person renders the service as

long as it is done within the lawful scope of their license.
For this reason this type of mandated provider laws are often
called "freedom of choice laws". Blue Cross and Blue Shield
of Kansas City v. Bell, 798 F.2d at 1333. Clearly the intent
of this type of legislation is to allow the benefit of a
choice of practitioner. In our judgment the exclusion of
podiatrists violates the statute if the service that
podiatrists provide is covered by the plan that the PPO has
contracted to indemnify on behalf of the insurer and the
exclusion precludes reimbursement for a service that could
have been provided by a practitioner under the healing arts
act.
The second part of your question is whether K.S.A. 40-2,100 is
violated when podiatrists are subjected to a maximum
reimbursement annually and other doctors (doctors of medicine
or osteopathy) are not. In our judgment the statute in
question does not address the amount of reimbursement. We
note however that K.S.A. 40-231(b)(3) specifically authorizes
insurance companies to negotiate and enter into contracts for
alternative rates of payment with health care providers and
other parties.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Guen Easley
Assistant Attorney General
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