2020-114 IF No-Fault Fee Schedule Public Hearing Transcript
March 26, 2021
Page 4
There is no reference whatsoever to any so-called regional average or to any “national data base” of
fees in the No-Fault Act. This is a completely new invention on the part of DIFS that has absolutely no
basis in the statute and does not contort with the legislative’s intent. Further, Rule 5(1)(c) could be
interpreted to impose an additional limitation on those providers again who did not have a charge
description master in effect on January 1, 2019, or who did not charge for that treatment on January 1,
2019, essentially, new providers, or existing providers, render review of treatment. In particular, it could
be construed to limit reimbursement to that category of providers for the percentages that were in
section 3157, sub 7, as applied to that so-called regional average that I mentioned a moment ago. Again,
this limitation has absolutely no basis in the statute itself, due to the extent of the legislature did not
address the reimbursement for this category of providers. It is not the prerogative of an administrative
agency to “fill in the blank” or to “read a requirement into a statute the Legislature has seen fit to omit”.
That comes from a Michigan Court of Appeals decision in a Book-Gilbert v Greenleaf, 302 Mich App 538,
542 published decision. (recording interference). To the extent that DIFS now seeks to do so through
Rule 5(1)(c), it unlawfully usurps the legislative power conferred by our State constitution exclusively on
the Legislature.
Also, of great concern are DIFS draft Rules 3(2), 5(1), (2) and (4); and 6(2). All of which would affirmably
require all providers rendering treatment under the No-Fault Act, to provide varies documents,
information, and other materials regarding their fees and related matters to DIFS. Despite again the fact
that the statute itself imposes no such requirement. Further, these rules would require private medical
providers, private businesses, to disclose these sensitive proprietary materials to a governmental
agency, even in cases where a provider has not pursued an administrative appeal and without adequate
protections to ensure this sensitive proprietary information is not released into the public domain.
Nothing in the No-Fault Act which is the statute that governs this matter requires this type of disclosure,
except for the limited purpose of utilization review within the meaning of Section 3157a, Sub 6.
Further, the utilization review process authorized by the Legislature only compels a provider to disclose
certain limited materials to DIFS, if and when the provider elects, not as required, but elects to pursue
an appeal through DIFS. This series of Rules would require disclosure in all cases.
In summary, Michigan Appellate Courts have long and consistently held an administrative agency, like
DIFS, has no power or authority other than that expressly conferred to them by clear and unmistakable
statutory language. The clear and unmistakable language of the enabling statute, again here the No-
Fault Act, does not impose any of the requirements found in the proposed Rules 3(2), 5(1), (2) or (4),
and 6(2). For all of these reasons, we strongly object to these rules. The applicable legal authority and
principles underline all the objections that I have just asserted are mournfully set forth in a series of
written comments and objections that our firm intents to submit to DIFS on behalf of our clients. Thank
you for the opportunity to be heard this morning on this very important issue.
