Chiropractors won't get help from state judges in Ariz. lawsuit - East Valley Tribune: Arizona

Chiropractors won't get help from state judges in Ariz. lawsuit

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Posted: Monday, April 22, 2013 10:03 am

State judges won't intercede in the fight by chiropractors with insurance companies.

The Court of Appeals has thrown out a request by two chiropractors and one of their patients to force state Insurance Director Germaine Marks to discipline Blue Cross for what they said are violations of anti-discrimination statutes.

In their unanimous ruling, the judges did not address whether the allegations are true.

Instead, they simply ruled that Marks has discretion in how she enforces the law. And that, they said means no court can tell her what to do.

Chiropractors have been engaged in a multi-decade battle with insurers, contending that they are entitled to be reimbursed for their services just like any other health care professionals. Insurance companies have fought these mandates, arguing that they drive up costs.

The chiropractors have won some victories over the years. That includes the law at issue here.

It says that insurers can apply deductibles, cost containment measures and limiting coverage to preferred provider organizations but only "if they are equally applied to all types of physicians referred to in this section.''

In their legal complaint Thomas Blankenbaker and Shawn Wherry, both chiropractors, said Blue Cross treated chiropractic patient different than other medical professions. This included different copayments, authorizations for treatment, limitations on treatments and exclusions.

But the lawsuit was not against Blue Cross. Instead they said the insurance director had refused to stop the insurer from discriminatory conduct and wanted a court to order her to enforce the law.

When a trial judge dismissed the case, they appealed.

Arizona law does allow for what is called a "mandamus'' action. It is a court order to compel a public officer to perform an act which the law specifically imposes as a duty.

But Judge John Gemmill, writing for the appellate court, said this is not absolute.

"Mandamus is not available unless the public officer is specifically required by law to perform the act,'' he wrote.

In essence, Gemmill said, courts can step in when a public official refuses to perform a "ministerial'' act. That is generally defined as one where, in a given situation, there is really only one thing that the official can legally do, like a clerk accepting a filing that otherwise meets the legal requirements.

In this case, Gemmill acknowledged that state law says the insurance director "shall enforce the provisions'' of the state insurance code. But he said that is not the defining factor.

He pointed out that there are laws which make a police chief responsible for enforcing city codes.

But Gemmill said that does not entitle someone to go to court to force the chief to enforce a specific ordinance. He said the chief has discretion and is allowed to consider everything from lack of resources and conflicting priorities to concerns about the legality or wisdom of enforcing that ordinance.

Gemmill said that same discretion exists here.

"The obligation to enforce these statutes necessarily requires the director to interpret the statutes involved, to assess the circumstances and facts surrounding alleged violations, to determine whether a violation warranting action has in fact occurred, and, if so, to determine what form of enforcement, if any, would be appropriate,'' he wrote.

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