D-Day (July 1, 2021) grows ever closer. That is the day when fee caps and CARF accreditation come into effect. As we approach that day of reckoning, we will continue to report developments. For today’s edition, we discuss the requirement for CARF accreditation as it applies to small businesses and solo practitioners. An oft asked question is whether this requirement even applies to such practitioners. This edition is an effort to address that question. Here goes:
First, what is the requirement? No-fault section 3157(12) states:
“12) A neurological rehabilitation clinic is not entitled to payment or reimbursement for a treatment, training, product, service, or accommodation unless the neurological rehabilitation clinic is accredited by the Commission on Accreditation of Rehabilitation Facilities or a similar organization recognized by the director for purposes of accreditation under this subsection. This subsection does not apply to a neurological rehabilitation clinic that is in the process of becoming accredited as required under this subsection on July 1, 2021, unless 3 years have passed since the beginning of that process and the neurological rehabilitation clinic is still not accredited.”
Second, since this requirement only applies to “neurological rehabilitation clinics”, what are they? “Neurological rehabilitation clinic” is a new term of art created by the revision to the no-fault law. It is defined in section 3157(15)(g) as follows:
“g) "Neurological rehabilitation clinic" means a person that provides post-acute brain and spinal rehabilitation care.”
Third, since this requirement only applies to a “person” who provides such care, what is a “person”? This is defined in section 3157.15(h) as follows:
“ (h) "Person"...includes, but is not limited to, an institution.”
To restate these requirements in more simple language, it appears that anybody that provides post-acute brain and spinal injury care is required to be certified by CARF or a similar organization approved by DIFS.
Further thoughts:
1. DIFS has issued a Bulletin (2020-27-INS, 5/28/20) making clear that it “...will recognize accreditation by either CARF or The Joint Commission as satisfying the accreditation requirement under section 3157(12).”
2. The Bulletin helps us address perhaps the most frequently asked question about the accreditation requirement: Are small businesses and individual rehab providers required to become certified? The law does not make any exceptions to its rule. However, careful reading of the law provides some hope. For example, only those who provide “post-acute” care are covered. Also, only those who provide “brain and spinal rehabilitation care” are covered. The DIFS Bulletin 2020-27 INS also provides an important interpretive clue: “Accreditation by CARF or The Joint Commission is not required to the extent an individual or entity is providing ancillary or other services that do not constitute post-acute brain or spinal injury care.” DIFS has addressed this question more directly on its website in answer to Frequently Asked Questions about accreditation: (see https://www.michigan.gov/difs/0,5269,7-303-13047_13049_34631_95382---,00.html) :
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Do stand-alone individual providers that provide post-acute brain and spinal rehabilitation care need to be accredited under MCL 500.3157? MCL 500.3157(15)(g) defines a neurological rehabilitation clinic as "a person that provides post-acute brain and spinal rehabilitation care." A "person" is defined in MCL 500.114 and includes an individual in addition to an institution, company, association, organization, or any other legal entity. Therefore, an individual provider that "provides post-acute brain and spinal rehabilitation care" must be accredited by CARF or The Joint Commission.”
What’s interesting about this answer is that it reflects the legal requirement and not the actual availability of accreditation under either CARF or The Joint Commission. We have been unable to verify that either organization actually offers accreditation to individual providers. We may therefore end up being faced with a scenario where the law requires an impossibility. We will watch how this plays out over time.
3. Does the accreditation requirement apply to other services common to catastrophic injury rehabilitation? The following are excerpts from the DIFS website where they attempted to address this question. The answers are helpful but we caution that DIFS opinions, while persuasive, do not have the force of law. Many of these and other questions will need to be litigated in the years to come.
- Do entities that provide ancillary services to injured persons—such as case management, transportation, or guardianship/conservatorship planning—need to be accredited under MCL 500.3157? No. These entities do not “provide[] post-acute brain and spinal rehabilitation care” under MCL 500.3157(15)(g) and therefore do not need to be accredited.
- Do family members who provide attendant care need to be accredited under MCL 500.3157? No. These persons do not “provide[] post-acute brain and spinal rehabilitation care” under MCL 500.3157(15)(g) and therefore do not need to be accredited by CARF or an equivalent.
- Do vocational rehabilitation counselors need to be accredited under MCL 500.3157? No. These persons do not “provide[] post-acute brain and spinal rehabilitation care” under MCL 500.3157(15)(g) and therefore do not need to be accredited by CARF or an equivalent.
- Do providers of recreational therapy need to be accredited under MCL 500.3157? No. These persons do not “provide[] post-acute brain and spinal rehabilitation care” under MCL 500.3157(15)(g) and therefore do not need to be accredited by CARF or an equivalent.
- Do entities that provide post-acute brain and spinal rehabilitation care need to be accredited under MCL 500.3157(12) if the entity providing the care has a specialty license issued by the Department of Licensing and Regulatory Affairs (LARA)? Yes. Entities that “provide[] post-acute brain and spinal rehabilitation care” under MCL 500.3157(15)(g) need to be accredited by CARF or The Joint Commission. Please see Bulletin 2020-27-INS for further information.
- Do providers of psychotherapy need to be accredited under MCL 500.3157? No. These persons do not “provide[] post-acute brain and spinal rehabilitation care” under MCL 500.3157(15)(g) and therefore do not need to be accredited by CARF or an equivalent.
- Do speech pathologists need to be accredited under MCL 500.3157? No. These entities do not “provide[] post-acute brain and spinal rehabilitation care” under MCL 500.3157(15)(g) and therefore do not need to be accredited by CARF or an equivalent.
That summarizes where matters stand as we approach this new requirement.
