Who could ask Maryland's Interdepartmental Committee on Mandated Health Insurance Benefits to review a proposed coverage change?

Plain-English summary

Worried about the rising cost of health insurance, Maryland created a review structure in 1990 for laws that force insurers to cover particular services or providers. Chapter 417 of the Laws of Maryland 1990 added §490M to Article 48A, directing an Interdepartmental Committee on Mandated Health Insurance Benefits to evaluate proposals that establish, expand, or repeal "mandated health insurance benefits" or "nondiscrimination provisions." Licensed dietitians and nutritionists, who had been carved out of Maryland's "all-provider" reimbursement law when their licensing schemes were created in 1985 and 1986, wanted in, and asked the committee to review the proposal to remove their exclusion. The committee's chairman asked the Attorney General whether it could.

The answer turned on who may invoke the committee. Under §490M(c)(1) the committee evaluates proposals "[a]t the request of the Governor or the Legislative Policy Committee," reports back to them, and exists, per the study committee that designed it, to assist the General Assembly and the Governor. So a provider group's request alone could not trigger a review. If the Governor or the Legislative Policy Committee did ask, though, the committee would have jurisdiction: the proposed changes to §§354Z, 470U, and 477AA would expand what the legislature itself had labeled nondiscrimination provisions, and the uncodified Section 3 of Chapter 417, which shields those provisions from review, bars review only of repeals that limit their effect, not of expansions. As for the label, the opinion called the proposal a "nondiscrimination provision" rather than a "mandated benefit," while stressing that nothing turns on the distinction, because §490M subjects both to the same standards of scrutiny and justification.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Maryland's Insurance Code, including Article 48A, has since been recodified, and the state's mandated-benefit review machinery has been restructured.

Common questions

Could a professional group get the mandated-benefits committee to review its own coverage proposal?
No. Under this 1990 opinion, the committee's jurisdiction was invoked only by a request from the Governor or the Legislative Policy Committee. The dietitians' and nutritionists' request, standing alone, could not start a review.

What was the "all-provider" law the dietitians wanted to join?
Article 48A, §§354Z, 470U, and 477AA generally entitled insureds to reimbursement for covered services performed by any licensed provider acting within the scope of practice. When dietitians (1985) and nutritionists (1986) were licensed, they were excluded from that rule unless a policy expressly covered their services. Bills to remove the exclusion failed in 1988, 1989, and 1990.

Was adding dietitians a "mandated benefit" or a "nondiscrimination provision"?
The opinion said the proposal fit the statutory definition of a nondiscrimination provision, since it removed a limitation imposed on one subcategory of providers but not others. It also stressed that the label had no legal consequence: §490M subjected mandated benefits and nondiscrimination provisions to the same review standards.

Didn't Chapter 417 protect the nondiscrimination provisions from committee review?
Only against cutbacks. The uncodified Section 3 barred review of full or partial repeals that limit the effect of the listed nondiscrimination provisions. The dietitian and nutritionist proposal expanded those provisions rather than limiting them, so Section 3 did not block a properly requested review.

Background and statutory framework

The review structure grew out of the Committee on Mandated Health Benefits of the Governor's Commission on Health Care Policy and Financing, whose September 1989 final report recommended an administrative and statutory structure for analyzing mandate proposals of all kinds, expressly including nondiscrimination statutes. The Administration bill, House Bill 499, became Chapter 417 of the Laws of Maryland 1990 and added §490M to Article 48A. Section 490M(a)(2) defined "mandated health insurance benefit," §490M(a)(3) defined "nondiscrimination provision," §490M(c)(1) tied the committee's evaluations to requests from the Governor or the Legislative Policy Committee, and §490M(f) applied uniform standards of scrutiny to both categories. Uncodified Section 3 listed existing nondiscrimination provisions, including §§354Z, 470U(a), and 477AA(a), and barred committee review of proposals to repeal or limit them.

The opinion also drew on the office's earlier advice letters about the dietitian and nutritionist bills, which had concluded the proposals did not mandate coverage but only required reimbursement where services were already covered, while cautioning that no case or statute anywhere had given legal consequences to the mandated-benefit versus nondiscrimination distinction. That caution became part of the holding: the characterization question was answerable from Chapter 417's own text, but the answer did not change the committee's jurisdiction or its analysis.

Citations and references

Statutes:

• Article 48A, §490M, added by Chapter 417 of the Laws of Maryland 1990, including the definitions in §490M(a)(2) and (a)(3), the request requirement in §490M(c)(1), the reporting duties in §490M(d), and the uniform review standards in §490M(f); uncodified Section 3 of Chapter 417
• The all-provider reimbursement provisions, Article 48A, §§354Z, 470U, and 477AA, with the dietitian/nutritionist exclusions in §§354Z(c), 470U(c), and 477AA(c)
• Chapter 773 of the Laws of Maryland 1985 (dietitian licensing) and Chapter 703 of the Laws of Maryland 1986 (nutritionist licensing)

Legislative materials: Committee on Mandated Health Benefits, Final Report (September 1989); House Bill 499 (1990); House Bill 158 (1988); House Bill 1418 (1989); Senate Bill 614 and House Bill 866 (1990)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 328-335 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Insurance — Health — Interdepartmental Committee on Mandated Health Insurance Benefits May Review Proposed Expansion of 'All-Providers' Law if Requested to Do So By Governor or Legislative Policy Committee

December 12, 1990

The Honorable Charles L. Benton
Chairman, Interdepartmental Committee
on Mandated Health Insurance Benefits

 You have requested our opinion on whether the Interdepartmental Committee on Mandated Health Insurance Benefits has jurisdiction to review the request of dietitians and nutritionists for inclusion in the "all-provider" reimbursement provisions of the Insurance Code, Article 48A, §§354Z, 470U, and 477AA of the Maryland Code. Secondly, if this request is within the Interdepartmental Committee's jurisdiction, you have asked whether the proposed change in the law should be labeled a "mandated benefit" or a "nondiscrimination provision."

For reasons detailed below, it is our opinion that:

(1) The Interdepartmental Committee's jurisdiction to review proposals or statutes is invoked only by a request of the Governor or the Legislative Policy Committee. The Interdepartmental Committee is not empowered to review a proposal merely at the request of provider group like dietitians and nutritionists.

(2) If either the Governor or the Legislative Policy Committee requested the Interdepartmental Committee to undertake a review of the proposed amendments to Article 48A, §§354Z, 470U, and 477AA, the request would not be outside the latter committee's jurisdiction.

 (3) Although in the abstract it is frequently difficult to distinguish between a "mandated benefit" and a "nondiscrimination provision," the Interdepartmental Committee has jurisdiction over both, with the exception of provisions specified in Section 3 of Chapter 417 of the Laws of Maryland 1990.

(4) The proposed changes to §§354Z, 470U, and 477AA would remove or modify an exception to what the General Assembly has labeled a "nondiscrimination provision" in Section 3 of Chapter 417, and they are not excluded from review by that uncodified section. In addition, by seeking to remove a "limitation or condition not imposed on other subcategories" of providers, the proposed changes would fit the definition of "nondiscrimination provision" contained in new §490M(a)(3) of Article 48A. However, because proposed expansion of nondiscrimination provisions are subject to the same review as mandated benefits, the label accorded a change by the Interdepartmental Committee would not require a different analysis.

I

Background of 1990 Legislation

As a result of increasing concern with the escalating cost of health insurance, the Committee on Mandated Health Benefits of the Governor's Commission on Health Care Policy and Financing recommended establishment of an "administrative and statutory structure" for analyzing "mandated health benefits." See Committee on Mandated Health Benefits, Final Report at 2 and 6 (September 1989). While recognizing the existence of "nondiscrimination provisions," the committee drew no distinction between such legislation and mandated benefits for purposes of government and consumer concern. Final Report at 1.1 Rather, the committee noted that:

           The structure is not intended to be limited in its application. It should be applicable to any provisions of law which have cost implications to the health care delivery system — including mandated service proposals, mandated provider reimbursement requirements, non-discrimination statutes, beneficiary laws and length of coverage proposals.

Final Report at 6.

This committee's recommendations were embodied in an Administration measure, House Bill 499, which expressly defined the terms "mandated health insurance benefit" and "nondiscrimination provision" but authorized review of both under certain circumstances by an Interdepartmental Committee on Mandated Health Insurance Benefits. Despite amendments by the House Economic Matters Committee narrowing the Interdepartmental Committee's jurisdiction over certain specified "nondiscrimination provisions," this basic structure remained unchanged.

 Enacted as Chapter 417 of the Laws of Maryland 1990, the legislation added a new §490M to Article 48A. The mission of the Interdepartmental Committee is described in §490M(c)(1):

           At the request of the Governor or the Legislative Policy Committee, the Interdepartmental Committee shall evaluate legislative proposals or statutes that establish, expand, or repeal mandated health insurance benefits or, except as otherwise provided by law, nondiscrimination provisions, and beneficiary or length of coverage provisions.2

Article 48A, §490M(a)(2) defines "mandated health insurance benefit" as "a legislative proposal or 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 nonprofit health service plan or by a commercial insurer." Section 490M(a)(3) defines a "nondiscrimination provision" as "a legislative proposal or statute that prohibits a nonprofit health service plan or commercial insurer who provides or offers a particular service, benefit, coverage, or reimbursement for covered health care services from excluding a subcategory from coverage or subjects the subcategory to limitations or conditions not imposed on other subcategories."3 Finally, an uncodified Section 3 of Chapter 417 provides that:

          [T]he Interdepartmental Committee on Mandated Health Insurance Benefits may not conduct a review, under Article 48A, §490M of the Code, of any proposed full or partial repeal that limits the effect of the nondiscrimination provisions contained in Article 48A, §§ 354L, 354N, 354Y, 354Z, 354EE(b)(3), 470A, 470-1, 470J, 470K, 470M, 470T, 470U(a), 470X(b)(3), 477F, 477J, 477-0, 477Z, 477AA(a), 477FF(b)(3), 490, 490-1/2, 490A, 490A-1, 490A-2, 490K, and 490L of the Code or any proposed full or partial repeal of §§ 354S, 470-0, 477T, and 489 of the Code.

II

Dietitian and Nutritionist Legislation

The State's "all-provider" law generally specifies that whenever the policies, contracts, or certificates of nonprofit health service plans, health insurers, and group and blanket health insurers provide for reimbursement for any services within the lawful scope of practice of a licensed health care provider, "the insured, or any other person covered, or entitled to reimbursement under the policy, contract, or certificate, shall be entitled to reimbursement for such services." Article 48A, §§354Z(a), 470U(a), and 477AA(a). When licensing schemes were established for dietitians in 1985 (Chapter 773 of the Laws of Maryland 1985) and for nutritionists in 1986 (Chapter 703 of the Laws of Maryland 1986), these providers were excluded from the all-provider law unless a policy, contract, or certificate expressly provided for reimbursement for services within the scope of their practice. See §§354Z(c), 470U(c), and 477AA(c).

In 1988, legislation was introduced in the House to delete this exception to the all-provider law but failed to clear committee. See House Bill 158 (1988). In 1989, a bill passed the House that would have modified the exception to generally require dietitian or nutritionist reimbursement "if a licensed physician determines that treatment is medically necessary for the intervention of cardiovascular disease, diabetes, malnutrition, cancer, or cerebral vascular disease." See House Bill 1418 (1989). However, the measure died in the Senate. Similar bills were introduced in the General Assembly in 1990, but both failed. See Senate Bill 614 and House Bill 866 (1990).

 In response to a request for advice, the Attorney General's Office concluded that the 1989 legislation "would not mandate coverage of these services but would simply require that where they are covered, reimbursement must be provided when the services are performed by a licensed dietitian or nutritionist." Letter to Delegate Donald E. Lamb from Assistant Attorney General Kathryn M. Rowe (April 7, 1989). A letter on the 1990 legislation also noted "it would appear that, in the abstract, Senate Bill 614 does not mandate a benefit." Letter to Senator Thomas L. Bromwell from Assistant Attorney General Robert A. Zarnoch (February 21, 1990). But this advice letter went on to state that:

          However, a word of caution is in order. Our prior letters have assumed the question of whether a particular provision is a mandated benefit or a nondiscrimination requirement to be a legal issue capable of definitive resolution in accordance with legal standards. It is becoming apparent that this is not the case.

          As far as I am aware, there is no case anywhere that attempts to distinguish a mandated benefit from a nondiscrimination requirement, and no existing statute that draws such a distinction for any purpose. More importantly, there is no legal consequence that follows from labeling a particular benefit a mandate as opposed to a nondiscrimination requirement and no articulated legal standards for making such a determination.

Letter at 2 (emphasis in original).

With this history and background in mind, we turn to the questions you have raised.

III

Analysis

 Before focusing on the "mandated benefit" versus "nondiscrimination provision" issue and its relevance to the duties of the Interdepartmental Committee, we note another significant limitation on the jurisdiction of the committee. It cannot evaluate either a proposed mandated benefit or a nondiscrimination provision unless requested by the Governor or the Legislative Policy Committee. Article 48A, §490M(c)(1). Under the law it is obligated to report its findings to the Governor and the Legislative Policy Committee or affected State agency. §490M(d)(4) and (5). And, according to the Committee on Mandated Health Benefits, "the entire purpose of the [statutory] process is to assist the General Assembly and the Governor." Final Report at 8.

 In light of these clear expressions of legislative intent and the Interdepartmental Committee's otherwise carefully circumscribed jurisdiction, we believe that the committee lacks jurisdiction to evaluate a proposed change merely at the request of a provider. It may act only if it receives a request from the Governor or the Legislative Policy Committee. Thus, the Interdepartmental Committee is not empowered to review the legislative proposals of the dietitians and nutritionists.

Because the issue is likely to be a recurring one, however, we have also decided to address your question on the appropriate characterization of the proposed changes. In our opinion, should the Governor or the Legislative Policy Committee request an evaluation of the dietitian and nutritionist legislation, the Interdepartmental Committee would have jurisdiction to conduct the review.

 If a label had to be attached to the proposed amendments to §§354Z, 470U and 477AA, we would conclude that the legislation is more appropriately characterized as a "nondiscrimination provision" on the basis of §490M(a)(3) and (c)(1) and Section 3 of Chapter 417. The latter uncodified section itself describes §§354Z, 470U(a), and 477AA(a) — which the dietitian and nutritionist legislation seeks to expand — as "nondiscrimination provisions." Section 490M(a)(3) authorizes evaluation of proposals that prohibit the subjecting of a subcategory of service, benefit, coverage, or reimbursement to limitations or conditions not imposed on other subcategories. And the proposed changes seek to modify or delete a limitation or condition not imposed on other providers and, thus, "expand" a nondiscrimination provision within the meaning of §490M(c)(1). Finally, evaluation would not be prevented by Section 3 of Chapter 417, which bars review only of a "full or partial repeal that limits the effect of the nondiscrimination provision" contained in §§354Z, 470U(a), and 477AA(a). The proposed changes neither repeal nor limit the effect of the nondiscrimination provision. Rather, they seek to expand the requirements of these sections.

 Although we can draw this characterization from the 1990 legislation, we should emphasize that §490M nevertheless does not require different treatment of mandated benefits and nondiscrimination provisions (other than those named in Section 3 of Chapter 417). Both are subject to the same standards of scrutiny and justification. See §490M(f). In short, even though §490M(a) defines a "nondiscrimination provision" and distinguishes it from a "mandated health insurance benefit," no legal consequence follows from such a characterization or label. Both are subject to the same review and analysis by the Interdepartmental Committee.

IV

Conclusion

In summary, it is our opinion that:

(1) The Interdepartmental Committee may not review proposed changes to §§354Z, 470U and 477AA of Article 48A without a request from the Governor or the Legislative Policy Committee.

(2) If such a request were received, the Interdepartmental Committee would have jurisdiction to evaluate the proposal.

(3) Although the proposed changes would constitute a "nondiscrimination provision" under §490M and Chapter 417 of the Laws of Maryland 1990, this label does not affect the Interdepartmental Committee's jurisdiction or analysis of the proposed changes.

                                         Very truly yours,

                                         J. Joseph Curran, Jr.
                                         Attorney General

                                         Robert A. Zarnoch
                                         Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

1
The committee's final report noted that there were four basic categories of "mandated benefit laws," including "nondiscriminatory provider mandates," "service mandates," "mandated benefits laws," and "mandated length of coverage law." Final Report at 1. "Nondiscriminatory provider mandates" were described as "expand[ing] the classes of providers whose services are covered by insurance" so that "[s]ervices are covered by a licensed provider despite the fact that a policy's own terms might appear to exclude coverage by that particular class of provider." Id.

2
The legislation sets certain time frames for an evaluation, e.g. May 31 for notification by the Governor or Legislative Policy Committee of which evaluations are to be made and November 10 for reporting the results of the review. §490M(c)(2) and (e)(4). Section 6 of Chapter 417 slightly modifies the dates for 1990 action, but the deadlines for this year have already passed.

3
The word "subjects" in §490M(a)(3), added by House Committee amendment, was probably intended to be "subjecting." Any other reading would convert the clause beginning with "subjects" to a definition of "discrimination" rather than one of "nondiscrimination."