Every Category of Provider: Hindsight Is 20/20 Vision

COMMENTS Every Category of Provider: Hindsight Is 20/20 Vision Melanie K. Curtice" INTRODUCTION "In Johann Wolfgang von Goethe's 'Faust,' the title character asks the devil for good health. The devil replies: All right, you need no sorcery And no physician and no dough. Just go into the fields and see What fun it is to dig and hoe; Live simply and keep all your thoughts On a few simple objects glued; Restrict yourself and eat the plainest food. That is the surest remedy: At 80, you would still be young." 1 Wouldn't it be nice if the recipe for maintaining good health was that simple? For many Americans, in addition to a healthy diet and regular exercise, striving for and maintaining good health includes (contrary to what Goethe's devil says) regular visits to a physician. For others, maintaining good health may consist of a visit to their massage therapist, chiropractor, acupuncturist, naturopathic physician, * B.A. 1990, California State Polytechnic University, Pomona; J.D. Candidate 1998, Seattle University School of Law. In writing this Comment, I relied on my seven years of experience working in the health care industry. I would like to thank Rich Birmingham of Birmingham, Thorson & Barnett, P.C.; the Washington State Attorney General's Office; Professor Kellye Testy; and the very capable editorial staff of the Seattle University Law Review for all of their comments, suggestions, and patience (mainly patience!). I would especially like to thank Jill Mehner for her constant encouragement, support, and thoughtful insights-both on this Comment and beyond its scope. 1. Mary Elizabeth Cronin, A Simple Regimen You Can Live With-Weil's Latest Book Continues on the Natural Path to Wellness, THE SEATTLE TIMES, May 7, 1997, at El. Seattle University Law Review [Vol. 21:317 or other "nontraditional" or alternative health care provider. "To each his or her own," right? Wrong. A dilemma always arises with the provision of health care services: Americans want to choose their health care providers and they want their health insurance to cover visits to any of those providers. This problem is especially acute in the area of natural medicine, or alternative care. Americans by the millions are turning to nontraditional or alternative means for medical treatment.2 Alternative medicine, once considered quackery, is rapidly taking root.3 According to a 1993 study in the New England Journal of Medicine, nearly one-third of all Americans have at least once sought some form of alternative medical treatment.4 This alternative medical treatment came from those who have been compared to the likes of "snake oil salesmen" or "crackpots. ' Nowhere is alternative medicine becoming more a part of mainstream medicine than in Washington state.6 As an example, in early 1996, the King County Council voted unanimously to establish the nation's first government-subsidized natural medicine clinic, "in which diet, exercise, vitamins and treatments like acupuncture take precedence over drugs and the tools of conventional medicine." 7 Also in early 1996, the state of Washington began requiring health insurers to cover treatments like acupuncture, massage therapy, and other forms of licensed natural health care.' It is important to note that "licensed natural health care" means something different in Washington than it does in other states: Washington is one of only ten states that licenses naturopathic doctors.9 Contrast this with New York, which does not license naturopaths, and with California, where the Legislature has refused to allow naturopaths to rise to the status of licensed practitioners, a far cry from forcing insurers to pay for naturopaths' services. 10 Unlike the government-subsidized natural medicine clinic, the mandate 2. See Timothy Egan, Seattle Area Giving Natural Medicine a Chance to Come in From the Fringe, THE NEW YORK TIMES, January 3, 1996, at A10. 3. See id. 4. See id. 5. See Larry Stemp, D.C., Editorial, Alternative Care Isn't Problem-And Could Be Part of Solution, THE NEWS TRIBUNE, September 16, 1996, at A9. 6. See Egan, supra note 2. 7. Id.; see also Tom Philp, Shotgun Wedding Up North, SACRAMENTO BEE, June 2, 1996, at A10. 8. See Egan, supra note 2. 9. Id. 10. Egan, supra note 2; Philp, supra note 7. 1997] Every Category of Provider 319 requiring insurers to cover "Every Category of Provider," has been steeped in controversy.11 The controversy began on December 19, 1995,12 when the Office of the Insurance Commissioner (OIC) issued a Bulletin 3 to provide guidance to disability insurers,' 4 health care services contractors, 5 and health maintenance organizations 6 on the OIC interpretation of title 48, chapter 43, section 45 of the Washington Revised Code, referred to as the "Every Category of Provider" statute. 7 The interpretation, or policy statement, that was presented in the Bulletin 11. See WASH. REV. CODE § 48.43.045 (1996). The statute is entitled "Health Plan Requirements-Annual Reports." Id. For purposes of this Comment, the statute will be referred to as "Every Category of Provider" which is taken directly from language included in the statute. See id. 12. Actually, the controversy began in 1993 with the passage of global health care reform in 1993. See discussion infra Part I. For purposes of this Note, however, "controversy" refers to the events giving rise and leading up to the litigation between the Office of the Insurance Commissioner and health insurers. 13. See Bulletin No. 95-9, issued Dec. 19,1995 by Deborah Senn, Insurance Commissioner. 14. WASH. REV. CODE § 48.44.010 (12) (1996). Disability insurers are the entities responsible for the payment of health benefits or provision of health care services under a group or individual health insurance contract. See id. 15. WASH. REV. CODE § 48.44.010 (3) (1996). Health care service contractors are defined as: any corporation, cooperative group, or association, which is sponsored by or otherwise intimately connected with a provider or group of providers, who or which not otherwise being engaged in the insurance business, accepts prepayment for health care services from or for the benefit of persons or groups of persons as consideration for providing such persons with any health care services. Id. 16. WASH. REV. CODE § 48.46.020 (1996). Health maintenance organizations are defined as: any organization receiving a certificate of registration by the commissioner under this chapter which provides comprehensive health care services to enrolled participants of such organization on a group practice per capita prepayment basis ... either directly or through contractual or other agreements with other institutions, entities, or persons, and which qualifies as a health maintenance organization.... Id. 17. WASH. REV. CODE § 48.43.045 states in pertinent part: Every health plan delivered, issued for delivery, or renewed by a health carrier on and after January 1, 1996, shall: (1) Permit every category of health (...truncated)