Request By:
Mr. W. R. Hourigan, Ph.D.
Chairman, Commission for
Health Economics Control
Cabinet for Human Resources
275 East Main Street
Frankfort, Kentucky 40621
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Richard C. Carroll, Assistant Attorney General
Your letter of March 31, 1989, has been referred to me for a reply. In your letter, you requested this office's interpretation of KRS 216B.020(2)(a) which exempts private offices and clinics of physicians, dentists and other practitioners of the healing arts from having to obtain a certificate of need. Specifically, you asked:
1. What practices are included within the healing arts?
2. What is meant by the term private offices and clinics?
In regard to the private office issue, you also requested whether corporate ownership of an office under 216B.020(2)(a) requires that all shareholders of the corporation be a member of the particular profession. According to your letter, the Commission has taken the position in the past that corporate ownership of an office or clinic would still qualify for the exemption, if all the corporate shareholders were physicians who practiced in the clinic.
In response to your first question, the proper starting place is KRS 216B.010 in which the General Assembly, in regard to certificates of need, stated that:
. . . the licensure of health facilities and health services is a means to insure that the citizens of this Commonwealth will have safe, adequate and efficient medical care; that the proliferation of unnecessary health care facilities, health services and major medical equipment results in costly duplication and underuse of such facilities, services and equipment; and that such proliferation increases the cost of quality health care within the Commonwealth. Therefore, it is the purpose of this chapter to provide for the establishment of the commission for health economics control in Kentucky for the purpose of acting on applications for certificates of need. (Emphasis added.)
A key phrase in the above-cited statement is "health services. " KRS 216B.015(15) defines "health services" as, "clinically related services provided within the Commonwealth to two (2) or more persons, including but not limited to diagnostic, treatment, or rehabilitative services, and includes alcohol, drug abuse, and mental health services."
Read together, these two statutes are important in answering your questions since they express a desire on the part of the General Assembly to insure that safe and efficient medical care will be provided to citizens of Kentucky but that unnecessary "health care facilities" and "health services" will be controlled by use of a certificate of need. The definition of "health services, " so broad in nature, represents a desire on the part of the General Assembly to control not only those regularly recognized health services, i.e., those provided by a physician, dentist, etc., but also those services provided by other lesser known health care providers such as physical therapists, occupational therapists, etc. If one were to interpret the statutes to exclude these other services from the control of the Commission, such an interpretation would go against the general intent of Chapter 216B. Therefore, a broad range of health service providers must be considered to be covered under the provisions of Chapter 216B.
This discussion leads in to your first question regarding the interpretation to be placed upon the term, "practitioners of the healing arts," as contained in KRS 216B.020(2)(a). Unfortunately, that term is not defined in Chapter 216B. The term also appears in a number of other chapters in the Kentucky Revised Statutes without being defined except for KRS 311.271(2)(a) which states:
The term "healing art," as used herein, includes the practices of medicine, osteopathy, dentistry, chiropody (podiatry), optometry, and chiropractic, but does not include the practices of Christian Science or midwifery. (Emphasis added.)
However, I do not believe that this definition of healing art is applicable to Chapter 216B since the language of KRS 311.271(2)(a) specifically limits the definition to those instances where the term is used in Chapter 311. In addition, that statute was enacted well before Chapter 216B, and the extended passage of time between those two enactments must be considered in how the definition of that term could change over that time. Therefore, one must turn to the standards in KRS 446.080 to determine how this phrase is to be interpreted.
KRS 446.080 provides that all statutes are to be liberally construed with a view to promote their objects and carry out the intent of the Legislature. In addition, all words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases and others which may have acquired a peculiar and appropriate meaning in the law shall be construed according to such meaning.
In applying these statutory construction procedures, the courts have held that the intention of the Legislature in enacting a law must be the controlling factor in its construction and that a court will look to the entire enactment, not just a certain provision in construing a statute. See
Goodpaster v. Kenton and Campbell Benevolent Burial Assn., 279 Ky 92, 129 S.W.2d 1033 (1939), and
Seaboard Oil Co. v. Commonwealth, 193 Ky. 629, 237 S.W. 48 (1922).
As previously stated, one of the intentions of the Legislature in enacting Chapter 216B was to control the proliferation of all unnecessary health services. The definition of health services as found in KRS 216B.010 is so broad in order to carry out this intent. If it was the intent of the Legislature to control the providing of all health services, it must also have been the intent of the Legislature to treat all providers of health services equally under Chapter 216B. Therefore, in order to avoid any question of arbitrariness under Article 2 of the Kentucky Constitution, if an exemption is provided for some providers of health services, it should apply to all such providers. I believe this intention can be accomplished by applying the definition of "health services" to "practitioners of the healing arts."
The application of this definition to "practitioners of the healing arts" also recognizes the fact that words or phrases are not static concepts capable of only one definition now and forever. In other words, what constituted a practitioner of a healing art in 1960, certainly could differ from its interpretation in 1980 when Chapter 216B was enacted. The statute should be interpreted to recognize such a change. See
Cook v. Workers Compensation Department, 758 P.2d 854 (Or. 1988).
In the Cook decision, the Oregon Supreme Court broadly interpreted the phrase, "healing art," to include nurse practitioners. As noted by that court, "'Healing' is generally defined as 'curative.'" See, e.g., Webster's Third New International Dictionary (1971). "A healing art" would be commonly understood as the skill to treat disease or disability and, where the nature of the problem permits, to restore health. Id. at 859.
Therefore, for the reasons set forth above, I believe that the phrase, "practitioners of the healing arts," as found in KRS 216B.020(2)(a) should be broadly interpreted by the Commission to include all persons licensed by the Commonwealth to provide health services as defined in KRS 216B.015(15).
In response to your second question, the same general principles applied to your first question would be used to answer the "private offices and clinics" issue. Therefore, one must keep in mind the general intent of the Legislature in enacting the statute, that the statute should be liberally construed and, if appropriate, the plain meaning attached to the words "private offices and clinics. "
The general intent of the statute, and the definition of "health facility" and "health services, " all indicate that the Commission should be authorized to control the performance of "health services" in any location or facility. However, the exemptions provided in KRS 216B.020(2)(a) and (b) indicate that when those services are performed in a "private office" or "clinic" setting they should be exempt from oversight by the Commission.
The plain meaning of "office" is the building, room, or series of rooms in which the affairs of a business, professional person, branch of government, etc., clerical activities are carried on. See Webster's New World Dictionary, Second College Edition (1978). A "clinic, " as it is associated with this statute refers to an institution associated with a hospital or medical school that deals chiefly with outpatients or a medical establishment run by several specialists working together. See Websters II, New Riverside University Dictionary (1984). "Private" is defined as not open to or intended for or controlled by the public. Webster's New World Dictionary, Second College Edition (1978). Therefore, "private offices and clinics" is concerned with a specific building, room or rooms not open to the general public, which the physician uses on a regular basis to provide health services to his patients, and is not a health facility as defined in KRS 216B.015(12). The actual ownership of that building or room by the physician is not addressed by the statutes, except in KRS 216B.020(2)(b). Instead, the exemption in 216B.020(2)(a) is addressed to that location or locations where the physicians provide health services to their private patients on a normal basis. It is that location, or locations, which constitutes the private office or clinic of the physician and which is exempt. The method of ownership the particular health care provider has chosen regarding the office building is addressed, not in Chapter 216B but instead, by any limitations placed upon physicians under Chapters 311 and 274 of the Kentucky Revised Statutes which deal with the practice of medicine and the establishment of professional service corporations.
In summary, the phrase, "practitioners of the healing arts," should be liberally interpreted to include those licensed professionals who provide health services as defined in KRS 216B.015(15). The phrase, "private offices and clinics, " should also be liberally interpreted to include those locations where a physician or other health care provider dispenses treatment in the normal course of his business and is other than a health facility as defined in KRS 216B.015(12). The method of ownership of that office or clinic should not enter into the determination since that is not an issue with the statutory exemption.
I hope this has been of some assistance to you and I apologize for the delay in responding to your questions.