Lyle H. Abbas, F. Dow Bates, Bradley J. Brown, Sidney E. Carter, Brad Chicoine, Russell J. Cox, Paul D. Eberline, Joseph N. Geelan, Richard W. Haas, Rex J. Jones, Keith L. Klemme, Elizabeth C. Kressin, Steven J. Kraus, Mark A. Kruse, Rodney D. Langel, Ronald O. Masters II, Kevin Miller, Steven A. Mueller, Mark A. Niles, Valorie J. Prahl, Jennifer A. Rasmussen, Rod R. Rebarcak, Randall P. Stange, Lance E. Vanderloo, Kenneth

IN THE SUPREME COURT OF IOWA
No. 15–1248

Filed April 21, 2017

LYLE H. ABBAS, F. DOW BATES, BRADLEY J. BROWN, SIDNEY E.
CARTER, BRAD CHICOINE, RUSSELL J. COX, PAUL D. EBERLINE,
JOSEPH N. GEELAN, RICHARD W. HAAS, REX J. JONES, KEITH L.
KLEMME, ELIZABETH C. KRESSIN, STEVEN J. KRAUS, MARK A.
KRUSE, RODNEY D. LANGEL, RONALD O. MASTERS II, KEVIN
MILLER, STEVEN A. MUELLER, MARK A. NILES, VALORIE J. PRAHL,
JENNIFER A. RASMUSSEN, ROD R. REBARCAK, RANDALL P.
STANGE, LANCE E. VANDERLOO, KENNETH W. VAN WYK, and BEN
WINECOFF,

Appellants,

vs.

IOWA INSURANCE DIVISION,

Appellee,

WELLMARK, INC. d/b/a WELLMARK BLUE CROSS AND BLUE
SHIELD OF IOWA, and WELLMARK HEALTH PLAN OF IOWA, INC.,

Intervenors.

Appeal from the Iowa District Court for Polk County, Karen A.

Romano, Judge.

A group of chiropractors appeals a judicial review proceeding in

which the district court upheld a decision of the insurance commissioner

finding the insurers did not violate Iowa Code section 514F.2 (2013).

AFFIRMED.

Glenn L. Norris of Hawkins & Norris, P.C., Des Moines, and

Steven P. Wandro and Kara M. Simon of Wandro & Associates, P.C.,

Des Moines, for appellants.
 2

Thomas J. Miller, Attorney General, and Jordan Esbrook, Assistant

Attorney General, for appellee.

Ryan G. Koopmans and Hayward L. Draper of Nyemaster Goode,

P.C., Des Moines, for intervenors.
 3

WIGGINS, Justice.

Twenty-six chiropractors petitioned for judicial review of the Iowa

Insurance Commissioner’s decision that health insurers did not violate

Iowa Code section 514F.2 (2013). The district court upheld the

commissioner’s decision, and the chiropractors appealed. We hold that

(1) the interpretation of section 514F.2 has not been clearly vested by a

provision of law in the discretion of the commissioner, (2) section 514F.2

regulates payments to providers, (3) the health insurer’s payments for

chiropractic care are not based solely on licensure, and (4) the Employee

Retirement Security Program (ERISA) preempts the application of Iowa

Code section 514F.2 to self-funded health plans. Accordingly, we affirm

the judgment of the district court.

I. Background Facts and Proceedings.

The appellants are Iowa-licensed chiropractors. Chiropractors

obtain a license in Iowa by completing a high-school education,

graduating from an approved college of chiropractic, and passing an

exam issued by the board of chiropractic. Iowa Code § 151.3. A

chiropractic license does not authorize a chiropractor to practice surgery

or administer or prescribe prescription drugs or controlled substances.

Id. § 151.5.

The intervenor in this case is Wellmark, Inc. d/b/a Wellmark Blue

Cross and Blue Shield of Iowa and Wellmark Health Plan of Iowa, Inc.

Wellmark sells health insurance plans to individuals and employer

groups. It also provides administrative services to assist others who

provide health insurance coverage, such as self-funded governmental

entity plans. Mueller v. Wellmark, Inc., 818 N.W.2d 244, 248 (Iowa 2012).

Wellmark offers both preferred provider organization (PPO) plans and

health maintenance organization (HMO) plans.
 4

For the PPO, Wellmark creates a network of preferred healthcare

providers, including doctors of chiropractic, medical doctors, and

osteopathic doctors. Mueller, 818 N.W.2d at 248. It incentivizes its

members to use its preferred provider panel. Id. Chiropractors are

preferred providers of Wellmark’s PPO network. Wellmark enters into

contracts governing the terms and conditions of treatment as well as fee

schedules with its preferred providers. Id. Preferred providers must

adhere to these contracts to receive compensation from Wellmark for

services provided to Wellmark’s members. Id. Preferred provider

arrangements are expressly encouraged by the Iowa legislature as a

healthcare cost control mechanism. See Iowa Code § 514F.2. The

legislature has directed the commissioner to regulate these preferred

provider arrangements. Id. § 514F.3.

For the HMO, Wellmark has an agreement with the Iowa

Chiropractic Physicians Clinic (ICPC), a chiropractic network, to provide

care to its members. Wellmark pays ICPC a certain rate per member

regardless if members seek chiropractic care, which is an arrangement

known as a capitated rate.

Prior to 1986, Iowa law prohibited coverage for chiropractic

services by healthcare service corporations. Health Care Equalization

Comm. of Iowa Chiropractic Soc. v. Iowa Med. Soc., 501 F. Supp. 970, 990

(S.D. Iowa 1980), aff’d, 851 F.2d 1020 (8th Cir. 1988). In 1986, the

legislature enacted House File 2219 to provide for the “payment by

corporations subject to chapters 509, 514, and 514B for services

performed by chiropractors.” 1986 Iowa Acts ch. 1180. The Code now

requires

payment or reimbursement for necessary diagnosis or
treatment provided by a chiropractor licensed under chapter
151, if the diagnosis or treatment is provided within the
 5
scope of the chiropractor’s license and if the policy would
pay or reimburse for the diagnosis or treatment by [medical
doctors and osteopathic doctors] of the human ailment,
irrespective of and disregarding variances in terminology
employed by the various licensed professions in describing
the human ailment or its diagnosis or its treatment.

Iowa Code § 509.3(1)(f) (2013). It is undisputed chiropractors have

agreements with Wellmark to provide services to its members in the PPO

and HMO networks for payment or reimbursement. It is also undisputed

Wellmark’s PPO pays chiropractors less than licensed medical doctors

and osteopathic doctors for several services, including office visits,

manual adjustments, and x-rays. Further, the fees paid at a capitated

rate to the chiropractors in the HMO network are less than the fees paid

by Wellmark to the chiropractors in Wellmark’s PPO network.

Following our decision in Mueller v. Wellmark, 818 N.W.2d at 258,

where we ruled that Iowa Code section 514F.2 does not grant a private

right of action and dismissed the claim, the chiropractors brought this

action. On November 30, 2012, the chiropractors submitted a request

for contested case proceeding to the commissioner, alleging Wellmark

wrongfully imposes restrictions and pays lower rates for chiropractic

services than for equivalent services offered by medical and osteopathic

doctors in violation of Iowa Code section 514F.2.

Section 514F.2 provides,

Nothing contained in the chapters of Title XIII, subtitle
1, of the Code 1 shall be construed to prohibit or discourage
insurers, nonprofit service corporations, health maintenance
organizations, or self-insurers for health care benefits to
employees from providing payments of benefits or providing
care and treatment under capitated payment systems,
prospective reimbursement rate systems, utilization control
systems, incentive systems for the use of least restrictive and
least costly levels of care, preferred provider contracts
limiting choice of specific provider, or other systems,

1Commencing with chapter 505. See Iowa Code chs. 505–523I.
 6
methods or organizations designed to contain costs without
sacrificing care or treatment outcome, provided these
systems do not limit or make optional payment or
reimbursement for health care services on a basis solely
related to the license under or the practices authorized by
chapter 151 or on a basis that is dependent upon a method
of classification, categorization, or description based upon
differences in terminology used by different licensees under
the chapters of Title IV, subtitle 3, of the Code in describing
human ailments or their diagnosis or treatment.

Iowa Code § 514F.2.

On December 14, the parties submitted a stipulation outlining the

issues for the commissioner to decide:

1. Are the fees paid by Wellmark, Inc. to chiropractors
unlawfully discriminatory in violation of Iowa Code § 514F.2?

(a) Does the Wellmark annual fee schedule for the
year beginning July 1, 2012, applicable to individual or other
fully-insured coverages limit payment for health care
services on a basis solely related to the license under or the
practices authorized by Iowa Code chapter 151 in such a
manner as to violate the provisions of Iowa Code § 514F.2?

(b) Does the Wellmark annual fee schedule for the
year beginning July 1, 2012, applicable to self-funded group
health plans that are administered by Wellmark, or to Blue
Card claims administered by Wellmark, limit payment for
health care services on a basis solely related to the license
under or the practices authorized by Iowa Code chapter 151
in such a manner as to violate the provisions of Iowa Code
§ 514F.2?

2. Is the capitated payment plan used for chiropractic
coverage by Wellmark Health Plan of Iowa, Inc., unlawfully
discriminatory in violation of Iowa Code § 514F.2?

(a) Does the capitated services payment system
which Wellmark Health Plan of Iowa, Inc., has put in place
for its Blue Advantage coverage for payment for services of
Iowa chiropractors limit payment for health care services on
a basis solely related to the license under or the practices
authorized by Iowa Code chapter 151 in a manner that
violates Iowa Code § 514F.2?

(b) Does the provision in the capitated services
payment system used for Wellmark Health Plan of Iowa,
Inc.’s Blue Advantage coverage violate the provisions of Iowa
Code § 514F.2 with regard to a referral from the member’s
 7
primary care physician being required after 12 chiropractic
visits for a particular condition?

On August 28, 2013, the parties substituted updated stipulations
that set forth the only issues to be decided by the agency. The updated

stipulations are as follows:

1. Petitioner will present this Stipulation as their
prima facie case for the hearing in this matter, including
“Wellmark, Inc.’s July 1, 2013, PPO Fees for Selected CPT
and Provider Types,” which is attached and which the
Petitioners will designate as Exhibit 1. Petitioners claim that
the difference in the amount of the fees paid to chiropractors
for the same or similar CPT codes as compared to what is
paid to MDs and DOs, including the differences in the fees
paid for CMT codes as opposed to OMT codes, constitute a
violation by Wellmark, Inc. of Iowa Code § 514F.2.

2. The parties further stipulate that the fees shown on
Exhibit 1 are not used by Wellmark Health Plan of Iowa
(WHPI), which instead contracts with the Iowa Chiropractic
Physicians Clinic (ICPC) to provide a chiropractic network
and pays ICPC at a capitated rate, and that ICPC’s
reimbursement for the CPT codes listed on the attached
exhibit is less overall than the fees paid to chiropractors by
Wellmark’s PPO. Petitioners claim that this constitutes a
violation by WHPI of Iowa Code § 514F.2. WHPI typically
pays other providers, and in particular MD’s and DO’s
pursuant to the fee schedules and not a contracted network
with a capitated rate.

3. WHPI’s Blue Advantage coverage includes a
provision with regard to a referral from the member’s
primary care physician being required after twelve
chiropractic visits for a particular condition, as set forth in
the attached portion of the current Blue Advantage Benefit
Certificate. Petitioners claim that this constitutes a violation
by WHPI of Iowa Code § 514F.2

The agency transferred the matter to the division of administrative

hearings for a contested case hearing, and an administrative law judge

(ALJ) held the hearing on September 16–18. The ALJ issued a proposed

decision on February 21, 2014, concluding,

Petitioners have not proven Wellmark has violated Iowa Code
section 514F.2[.] ERISA preempts application of Iowa Code
section 514F.2 to the self-funded health plans Wellmark
 8
administers. The plain meaning of Iowa Code section 514F.2
does not require payment parity, but precludes insurers
from restraining or restricting payment or reimbursement
solely based on licensure. Petitioners have failed to prove
Wellmark’s differing unit fee costs for services are solely
based on licensure. WHPI’s use of a capitated fee agreement
with ICPC does not violate Iowa Code section 514F.2. The
Division shall take any steps necessary to implement this
decision.

After reviewing the ALJ’s proposed decision and the record, the

commissioner issued a declaratory order instead of treating the matter as

a contested case. The commissioner explained that the enforcement of

insurance laws “resides exclusively in the office of insurance

commissioner” and not with private parties. The commissioner opined

that Iowa Code section 514F.2 does not grant

the insurance commissioner the judicial authority to
vindicate the disputes of private parties, whether the
complaining entities are health insurance policyholders or
health care providers. Iowa Code, Chapter 514F exhibits no
legislative intent to transform the insurance commissioner
into an insurance claim court.

The commissioner then went on to address the threshold legal

question of whether Iowa Code section 514F.2 requires Wellmark to

compensate the chiropractors equally with medical and osteopathic

doctors in network, concluding that it did not. The commissioner

determined Wellmark did not violate section 514F.2, because the statute

“does not prohibit insurers, nonprofit service corporations, health

maintenance organizations, or self-insurers for health care benefits to

employees from engaging in any particular act or practice.” But even if it

was a regulatory statute, the commissioner found “that any limitation of

fees or reimbursement by Wellmark is based upon numerous other

factors that have been well established through information gathered in

these proceedings.” Thus, the commissioner concluded that section

514F.2 “does not preclude Wellmark from differing reimbursements in its
 9

annual fee schedule . . . applicable to individual or other fully-insured

coverages.” The commissioner also declared ERISA preempts “Iowa Code

section 514F.2 from application to the self-funded plans.” Additionally,

the commissioner concluded the capitated payment systems under

Wellmark’s HMO do not limit payment for services on a basis solely

related to a chiropractor’s license in violation of section 514F.2. Finally,

the commissioner ruled that the twelve-visit rule under Wellmark’s HMO

does not violate section 514F.2.

The chiropractors filed a petition for judicial review pursuant to

Iowa Code section 17A.19, and the district court affirmed the

commissioner’s decision. The district court ruled that the proviso clause

of section 514F.2 “concerns coverage availability and does not regulate

provider in-network fee schedules.” The district court found the

legislature created section 514F.2 to clarify that House File 2219 “did not

prevent insurance companies from utilizing preferred provider contracts

as long as the contracts did not limit coverage solely on a basis related to

license.” “[I]n an abundance of caution,” the district court declared “that

even if section 514F.2 was regulatory or applied to fee schedules, the

Insurance commissioner’s determination that Wellmark did not violate

section 514F.2 is supported by substantial evidence in the record.” The

court further affirmed the commissioner’s decision that the twelve-visit

rule under Wellmark’s HMO did not violate section 514F.2, and ERISA

preempts section 514F.2 as to Wellmark’s self-funded health plans.

The chiropractors appealed the district court’s decision.

II. Issues.

This appeal presents four issues for review. They are (1) whether

the commissioner has the authority to adjudicate a contested case

between Wellmark and the chiropractors, (2) whether Iowa Code section
 10

514F.2 regulates payments to providers, (3) whether Wellmark’s

payments for chiropractic care are based solely on licensure, and (4)

whether ERISA preempts the application of Iowa Code section 514F.2 to

self-funded health plans. The chiropractors did not present an argument

on appeal as to the commissioner’s decision on the twelve-visit rule;

thus, we will let the district court’s decision stand as the final decision

on that issue.

III. Scope of Review.

This is an appeal of a district court’s review of agency action. Iowa

Code chapter 17A governs judicial review of final decisions by the Iowa

Insurance Commissioner. Iowa Dental Ass’n v. Iowa Ins. Div., 831

N.W.2d 138, 142 (Iowa 2013); see Iowa Code § 17A.19(1).

We review an agency’s interpretation of a provision of law under

either the highly deferential “irrational, illogical, or wholly unjustifiable”

standard or the nondeferential errors-at-law standard. Iowa Dental

Ass’n, 831 N.W.2d at 142–43. We will defer to an agency interpretation

of a provision when the legislature has clearly vested authority to

interpret statutory language in an agency. Ramirez-Trujillo v. Quality

Egg, L.L.C., 878 N.W.2d 759, 768 (Iowa 2016).

When the legislature has clearly vested an agency with interpretive

authority, we will reverse the agency’s ruling only when its interpretation

of a statutory provision is “irrational, illogical, or wholly unjustifiable.”

Id. (quoting Coffey v. Mid Seven Transp. Co., 831 N.W.2d 81, 88 (Iowa

2013)); see Iowa Code § 17A.19(10)(l). However, if the legislature has not

clearly vested the agency with interpretive authority, we review questions

of statutory interpretation for correction of errors at law. Ramirez-

Trujillo, 878 N.W.2d at 768; see Iowa Code § 17A.19(10)(c).
 11

If the legislature has not expressly granted interpretive authority to

an agency, we must examine “the phrases or statutory provisions to be

interpreted, their context, the purpose of the statute, and other practical

considerations to determine whether the legislature intended to give

interpretive authority to an agency.” Ramirez-Trujillo, 878 N.W.2d at 769

(quoting Clay County v. Pub. Emp’t Relations Bd., 784 N.W.2d 1, 4 (Iowa

2010)).

“We are more likely to conclude the legislature clearly vested

interpretive power in an agency when the agency necessarily must

interpret the statutory language at issue in carrying out its duties and no

relevant statutory definition applies.” Id. Further, “when the statutory

language at issue is a substantive term within the special expertise of an

agency, we generally conclude the legislature has vested the agency with

authority to interpret it.” Id.

The Iowa Code grants the commissioner the authority to

establish, publish, and enforce rules not inconsistent with
law for the enforcement of this subtitle and for the
enforcement of the laws, the administration and supervision
of which are imposed on the division, including rules to
establish fees sufficient to administer the laws, where
appropriate fees are not otherwise provided for in rule or
statute.

Iowa Code § 505.8(2). Additionally, “Section 514F.3 specifically

commands the insurance commissioner to adopt rules and procedures to

regulate preferred provider arrangements.” Mueller, 818 N.W.2d at 256.

We note that “the mere grant of rulemaking authority does not give an

agency authority to interpret all statutory language.” Iowa Dental Ass’n,

831 N.W.2d at 144 (quoting Neal v. Annett Holdings, Inc., 814 N.W.2d

512, 519 (Iowa 2012)). While the legislature has granted the
 12

commissioner the authority to make rules for enforcement purposes, it is

not the same as granting the commissioner interpretive authority. Id.

Further, when examining the proviso clause of section 514F.2, it

does not contain a “substantive term within the special expertise of the

agency.” Id. at 145 (quoting Evercom Systems, Inc. v. Iowa Utils. Bd., 805

N.W.2d 758, 762 (Iowa 2011)). For these reasons, we will review the

commissioner’s interpretation of the statute for errors at law.

Next, we address the scope of review as to the agency’s factual

determinations. We will reverse an agency’s decision only when the

“determination of fact” is “clearly vested by a provision of law in the

discretion of the agency” and an agency’s determination “is not

supported by substantial evidence in the record.” Iowa Code

§ 17A.19(10)(f). Iowa Code section 505.29 authorizes the commissioner

to appoint an ALJ to hear contested cases arising from conduct governed

by section 514F.2. Id. § 505.29. Here, the commissioner appointed an

ALJ, the ALJ held an evidentiary hearing, and the commissioner

ultimately made factual findings. Thus, the Code vests the agency with

the authority to hear contested cases, and the agency “must necessarily

make factual findings.” Mycogen Seeds v. Sands, 686 N.W.2d 457, 465

(Iowa 2004), superseded by statute, 2004 Iowa Acts 1st Extraordinary

Sess. ch. 1001, §§ 12, 20, as recognized in JBS Swift & Co. v. Ochoa, 888

N.W.2d 887, 890, 898 (Iowa 2016).

IV. Whether the Commissioner Has the Authority to
Adjudicate a Contested Case Between Wellmark and the
Chiropractors.

Litigation relevant to this matter began in 2008, when the

chiropractors filed an action alleging Wellmark violated antitrust laws,

breached a national settlement agreement, and violated Iowa Code
 13

section 514F.2. See Mueller, 818 N.W.2d at 247. With respect to section

514F.2, the chiropractors claimed Wellmark engaged in discriminatory

practices violating the statute because its preferred provider

arrangements limited payments “on a basis solely related” to a

chiropractor’s license. Id. at 254.

In 2012, the matter came before us and we concluded that section

514F.2 does not provide the chiropractors with a private right of

enforcement. Id. at 255. However, we also included dicta in our opinion

opining that the chiropractors may still have a remedy absent an implied

cause of action. Id. at 257–58. Based on our dicta in Mueller, that the

chiropractors may initiate contested case proceedings in certain

circumstances, the chiropractors filed a request for a contested case

proceeding with the Iowa Insurance Division.

In its ruling, however, the commissioner declared that Iowa Code

section 514F.2 “does not grant the insurance commissioner the judicial

authority to vindicate the disputes of private parties, whether the

complaining entities are health insurance policyholders or health care

providers.” Before making this ruling, the commissioner referred this

matter to an ALJ for a contested case hearing. 2

“A contested case is a proceeding ‘in which the legal rights, duties

or privileges of a party are required by Constitution or statute to be

determined by an agency after an opportunity for an evidentiary

hearing.’ ” Greenwood Manor v. Iowa Dep’t of Pub. Health, 641 N.W.2d

823, 834 (Iowa 2002) (quoting Iowa Code § 17A.2(5)(1999)). “The

2When the chiropractors filed their request for a contested case proceeding,
Susan Voss was the Commissioner of Insurance. Iowa Official Register, 2011–2012, at
157. Her term expired April 30, 2013. Id. At the time of the ruling by the
commissioner, Nick Gerhart was the Commissioner of Insurance. Iowa Official Register,
2015–2017, at 158.
 14

underlying purpose of an evidentiary hearing is to adjudicate disputed

facts pertaining to particular individuals in specific circumstances.” Id.

Neither a statute nor the constitution requires the Iowa Insurance

Division to provide an evidentiary hearing in matters arising from

conduct governed by chapter 514F. Further, prior to the chiropractors

filing their petition for a contested case hearing, there had been no

agency action. However, the commissioner has the discretion to appoint

an ALJ to hear contested cases arising from conduct governed by section

514F.2 and did so in this case. See Iowa Code § 505.29 (2013).

Additionally, pursuant to rule, “[a] declaratory order has the same status

and binding effect as a final order issued in a contested case proceeding,”

and “[i]ssuance of a declaratory order constitutes final agency action on

the petition.” Iowa Admin. Code r. 191—2.12.

We review agency action, whether in the form of a contested case

or a declaratory order under section 17A.19(10) of the Iowa Code. Iowa

Code § 17A.19(1). Thus, whether the commissioner treated this as a

contested proceeding or as a declaratory order, we review the final

agency action under the same analytical framework. Therefore, even

though the commissioner assigned this as a contested case under

section 505.29, there is no need for us to decide whether the

commissioner has the authority to adjudicate a contested case between

Wellmark and the chiropractors to determine this appeal.

V. Whether Iowa Code Section 514F.2 Regulates Payments to
Providers.

The commissioner found section “514F.2 does not prohibit

insurers, nonprofit service corporations, health maintenance

organizations, or self-insurers for health care benefits to employees from

engaging in any particular act or practice.” In reaching this conclusion,
 15

the commissioner broke section 514F.2 into two parts: the construction

clause and the proviso clause.

The construction clause states,

Nothing contained in the chapters of Title XIII, subtitle
1, of the Code shall be construed to prohibit or discourage
insurers, nonprofit service corporations, health maintenance
organizations, or self-insurers for health care benefits to
employees from providing payments of benefits or providing
care and treatment under capitated payment systems,
prospective reimbursement rate systems, utilization control
systems, incentive systems for the use of least restrictive and
least costly levels of care, preferred provider contracts
limiting choice of specific provider, or other systems,
methods or organizations designed to contain costs without
sacrificing care or treatment outcome,

Id. § 514F.2.

The proviso clause states,

provided these systems do not limit or make optional
payment or reimbursement for health care services on a
basis solely related to the license under or the practices
authorized by chapter 151 or on a basis that is dependent
upon a method of classification, categorization, or
description based upon differences in terminology used by
different licensees under the chapters of Title IV, subtitle 3,
of the Code in describing human ailments or their diagnosis
or treatment.

Id. The commissioner then found the proviso clause simply qualifies the

construction clause.

The district court approached the problem by referring to its

“simplified version” of the statute. It stated its “simplified version” as

follows:

Nothing contained in the Insurance Chapters of the Iowa
Code shall be construed to prohibit or discourage Wellmark
from providing preferred provider contracts limiting choice of
specific provider, provided the preferred provider contracts
do not limit or make optional payment or reimbursement for
health care services on a basis solely related to a
chiropractor’s license.
 16

The district court interpreted the proviso clause of section 514F.2

to mean it only “concerns coverage availability and does not regulate

provider in-network fee schedules.” The district court reasoned the

legislature created section 514F.2 to clarify that House File 2219 “did not

prevent insurance companies from utilizing preferred provider contracts

as long as the contracts did not limit coverage solely on a basis related to

license.” On this basis, the district court affirmed the commissioner’s

decision.

We disagree with both interpretations. “[W]e only engage in

statutory interpretation if the terms or meaning of the statute are

ambiguous.” State v. McIver, 858 N.W.2d 699, 703 (Iowa 2015). “A

statute’s meaning is ambiguous if reasonable persons can disagree on its

meaning.” Sierra Club Iowa Chapter v. Iowa Dep’t of Transp., 832 N.W.2d

636, 644 (Iowa 2013). We find section 514F.2 is ambiguous, and thus,

engage our canons of statutory interpretation.

The polestar of statutory interpretation is legislative intent.
To discern that intent, it is necessary to examine the whole
act of which the statutory provision in question is a part.
Particularly relevant are substantively related provisions
adopted in the same legislative session. From this
examination of related provisions, an overall legislative
scheme may become evident.

State v. Conner, 292 N.W.2d 682, 684 (Iowa 1980) (citations omitted).

Section 514F.2 finds its genesis in House File 2219, along with

Iowa Code sections 509.3, 514.7, and 514B.1. 1986 Iowa Acts ch. 1180.

The district court reasoned that sections 509.3, 514.7, and 514B.1 are

all “coverage provisions,” and because section 514F.2 was included in

House File 2219 and contains similar language, section 514F.2 only

“concerns coverage availability and does not regulate provider in-network

fee schedules.”
 17

Our examination of the enactment of House File 2219 leads us to

reach a different conclusion. The final bill provides, in relevant part:

Sec. 2. Section 509.3, Code 1985, is amended by
adding the following new subsection:

NEW SUBSECTION. 7. A provision shall be made
available to policyholders under group policies covering
diagnosis and treatment of human ailments for payment or
reimbursement for necessary diagnosis or treatment
provided by a chiropractor licensed under chapter 151, if the
diagnosis or treatment is provided within the scope of the
chiropractor’s license and if the policy would pay or
reimburse for the diagnosis or treatment by a person
licensed under chapter 148, 150, or 150A . . . .

....

Sec. 5. Section 514.7, Code 1985, is amended by
adding the following new unnumbered paragraph:

NEW UNNUMBERED PARAGRAPH. A provision shall
be made available in approved contracts with hospital and
medical subscribers under group subscriber contracts of
plans covering diagnosis and treatment of human ailments,
for payment or reimbursement for necessary diagnosis or
treatment provided by a chiropractor licensed under chapter
151 . . . .

....

Sec. 7. Section 514B.1, subsection 2, Code 1985, is
amended by adding the following new unnumbered
paragraph:

NEW UNNUMBERED PARAGRAPH. The health care
services available to enrollees under prepaid group plans
covering diagnosis and treatment of human ailments, shall
include a provision for payment of necessary diagnosis or
treatment provided by a chiropractor licensed under chapter
151 . . . .

1986 Iowa Acts ch. 1180 (emphasis added).

These three provisions were not included in the bill as offered.

H.F. 2219, 71st G.A., 2d Sess. (Iowa 1986). Numerous legislators offered
 18

these three sections in one amendment to the original bill. Amendment

5260 to H.F. 2219, 71st G.A., 2d Sess. (Iowa 1986). The house passed

this amendment. Id. The subject matter of this amendment concerned

coverage provisions relating to chiropractic services. Id. In other words,

this amendment related to the coverage an insurer provided its

policyholders, subscribers, or enrollees. These provisions required the

insurer to include chiropractic services in its plans it offered to its

policyholders, subscribers, or enrollees.

The committee on commerce chair introduced a separate

amendment to the original bill. Amendment S-5462 to H.F. 2219, 71st

G.A., 2d Sess. (Iowa 1986). The house passed this amendment. Id. The

amendment covered fees a chiropractor could receive for services

rendered. Id. One subject of the amendment dealt with the peer review

of the reasonableness of charges by chiropractors by peer review

committees. Id. The code editor codified this section as section 514F.1

in the 1987 Code. Another subject the amendment covered was payment

of services to chiropractors by insurers. Id. The code editor codified this

section as section 514F.2 in the 1987 Code. This is the provision we are

interpreting.

The house passed section 514F.2 independently from sections

509.3, 514.7, and 514B.1. The latter three sections are coverage

sections. The purpose of those sections was to set forth the

requirements between an insurer and its policyholders, subscribers, or

enrollees. The purpose of section 514F.2 was to set forth the

reimbursement requirements between the insurer and providers,

including chiropractors. Section 514F.2 does not contain any specific

language pertaining to “policyholders,” “subscribers,” or “enrollees,” as

the other three sections do.
 19

We find, based on the legislative history, the legislature intended

section 514F.2 to be distinguishable from the other three coverage

provisions. We further find the legislative intent of section 514F.2 was to

regulate the reimbursement an insurer is required to pay a chiropractor

rather than an insurer’s coverage of its insured. Therefore, we disagree

with the commissioner and district court interpretations of section

514F.2.

This finding does not end our inquiry. As an alternative ground,

the commissioner found that if section 514F.2 regulates the

reimbursement an insurer is required to pay a chiropractor, Wellmark

does not base its payments for chiropractic care solely on licensure in

violation of section 514F.2. On judicial review, the district court in an

“abundance of caution” found that if section 514F.2 regulates the

reimbursement an insurer is required to pay a chiropractor, substantial

evidence supported the commissioner’s findings that Wellmark does not

base its payments for chiropractic care solely on licensure in violation of

section 514F.2.

VI. Whether Wellmark Bases Payments for Chiropractic Care
Solely on Licensure in Violation of Iowa Code Section 514F.2.

The commissioner made the finding that Wellmark does not base

its payments for chiropractic care solely on licensure. The district court

affirmed this finding. We can only overturn the commissioner’s finding of

fact if the finding “is not supported by substantial evidence in the record

before the court when that record is viewed as a whole.” Iowa Code

§ 17A.19(10)(f). On appeal, our charge “is not to determine whether the

evidence supports a different finding; rather, our task is to determine

whether substantial evidence . . . supports the findings actually made.”

Mike Brooks, Inc. v. House, 843 N.W.2d 885, 889 (Iowa 2014) (quoting
 20

Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 845 (Iowa

2011)). Thus, the commissioner’s findings of fact bind us if substantial

evidence supports the findings.

There is no question Wellmark pays lower fees to chiropractors

than it does to medical and osteopathic doctors for (1) manipulation,

(2) x-rays or radiology, and (3) office visits. Although chiropractors

receive a lower fee for these services, it does not necessarily follow that

Wellmark is basing the lower fee solely on a chiropractor’s licensure.

To determine its fee structure, Wellmark utilizes the American

Medical Association’s Current Procedural Terminology, Professional

Edition, when billing for a service. This book identifies codes for each

service a provider may provide to a patient. The industry refers to the

codes as CPT codes. All providers and insurers in the United States use

these CPT codes. The purpose of CPT codes is to provide uniformity to

accurately describe the services of providers.

Wellmark reimburses providers for their services by assigning a

unit fee cost for each CPT code. The unit fee cost is lower for

chiropractors than medical and osteopathic doctors for three types of

services: (1) manipulation, (2) x-rays or radiology, and (3) office visits.

This results in a lower reimbursement for these services provided by

chiropractors to Wellmark’s policyholders, subscribers, or enrollees.

In determining the unit fee cost for providers, Wellmark looks to

the Centers for Medicare and Medicaid Services (CMS) Relative Value

Units (RVUs). The CMS publishes a list of RVUs for each specialty,

considering (1) the time it takes the specialty to perform the type of

procedure, (2) the specialty’s technical skill to perform the type of

procedure, (3) the judgment exercised by the specialty for the type of

procedure, (4) the stress incurred by the specialty with regard to the type
 21

of procedure, (5) the specialty’s practice expenses to perform the type of

procedure, and (6) the specialty’s malpractice insurance cost.

In addition to the CMS RVUs, Wellmark factors in the number of

available providers of chiropractic, its policy of keeping premiums in line

with the consumer price index, the overhead costs to various providers;

the amount of time spent on procedures by various providers, the

additional services provided by medical or osteopathic licensed

physicians, and the additional training requirements for medical or

osteopathic physicians. In setting its fees, Wellmark applies multiple

interrelated factors relating to our healthcare system.

Wellmark adjusts its fees to all providers on a regular basis. Some

providers’ reimbursements increase, while others decrease. The evidence

established that from 2007/2006 through 2013/2012, seven of the

thirteen medical or osteopathic specialty groups experienced decreases in

at least one available pool of money, while over the same time period

Wellmark did not decrease the pool of money for chiropractors.

Wellmark did not base these adjustments on licensure, but on the

numerous factors it uses to set its reimbursement rates for its providers.

To justify the difference in its fee schedules, Wellmark called a

number of witnesses to explain how it determines its fee schedules. A

licensed chiropractor testified concerning the additional medical training

physicians receive before the state licenses a physician, the additional

services physicians provide patients, and the additional costs physicians

incur to practice, such as insurance and the assistants required to be in

the office. A licensed osteopathic physician, who works in family practice

and urgent care, explained his extensive training in medical school and

residency, his treatment of disorders of the spine or joints, the time it

takes to perform his services, and the costs of his practice. These
 22

witnesses established medical and osteopathic doctors spend more time

at a higher cost to perform the same service as a chiropractor.

For example, the evidence established chiropractors spend about

half the time a physician does to perform a manipulation. Chiropractic

manipulation therapy (CMT) is different from osteopathic manipulation

therapy (OMT). The body regions a chiropractor performs CMT on cover

five spinal regions, including the cervical, thoracic, lumbar, sacral, and

pelvic, and five extraspinal regions, including the head, lower extremities,

rib cage, and abdomen. The body regions a physician performs OMT on

include the head, cervical, thoracic, lumbar, sacral, pelvic, lower

extremities, upper extremities, rib cage, abdomen, and viscera. Further,

the CMS, not Wellmark, determines the RVUs for CMT and OMT.

A chiropractor using a mechanical device to perform CMT on three

levels takes an average of two to five minutes. A physician spends fifteen

minutes to perform an OMT for one to two areas and fifteen to thirty

minutes for five to six areas. Although both the chiropractor and the

physician are performing a manipulation to an area of the body, the

physician uses a different technique for a longer time than a chiropractor

does.

The direct costs—which include staff costs, supply costs, and

equipment costs—for a chiropractor to perform a manipulation is about

$3.06, while a physician’s direct costs are about $5.44. These are the

types of differences influencing the reimbursement disparity between

chiropractors and physicians.

Because a physician’s scope of practice is broader than a

chiropractor’s scope of practice, a physician’s overhead is more expensive

than that of a chiropractor. For example, physicians usually employ

registered nurses and have equipment in their offices to treat other
 23

abnormalities not related to the spine. Further, the malpractice

insurance expense is much higher for physicians than for chiropractors.

These factors also influence the reimbursement levels of chiropractors

and physicians.

Chiropractors usually read their own x-rays and look for anomalies

of the spine. Board certified radiologists, whose training allows them to

look for tumors or other medical conditions, usually read x-rays ordered

by other physicians. With respect to the difference in rate for x-ray or

radiology services, there was testimony that physicians who are

radiologists have skill and judgment chiropractors do not possess, with

additional training after the completion of medical school and national

board certification. Physicians who are board certified radiologists

evaluate x-rays for surgical procedures and chiropractors do not. The

cost of a chiropractor reading an x-ray is less than that of a radiologist.

This factor influences reimbursement levels.

Although another fact-finder may come to a different conclusion,

the record made at the hearing supports the commissioner’s finding that

the method Wellmark uses to set fees for its providers depends on a large

number of complex factors concerning the healthcare system and that

Wellmark does not base its reimbursement to chiropractors based solely

on a chiropractor’s licensure. Because substantial evidence supports the

commissioner’s finding that the lower fees Wellmark pays to

chiropractors is not based solely on a chiropractor’s licensure, we are

required to affirm the commissioner’s finding.

VII. Whether ERISA Preempts the Application of Section
514F.2 to Self-Funded Health Plans.

The district court affirmed the commissioner’s decision that ERISA

preempts section 514F.2 as to Wellmark’s self-funded health plans. The
 24

chiropractors argue that ERISA does not preempt section 514F.2,

because the statute addresses contractual matters between insurers and

providers, and it does not pertain to health benefit plans for employees or

beneficiaries at all.

“ERISA broadly preempts ‘any and all State laws insofar as they

may now or hereafter relate to any employee benefit plan’ governed by

ERISA.” Daley v. Marriott Int’l, Inc., 415 F.3d 889, 894 (8th Cir. 2005)

(quoting 29 U.S.C. § 1144(a) (2000)). While ERISA does not preempt

state law that regulates insurance, self-funded ERISA plans are not

engaged in the business of insurance. 29 U.S.C. § 1144(b)(2)(A)–(B)

(2012). Further, the Supreme Court has held that a state statute “relates

to” an ERISA plan “if it [1] has a connection with or [2] references to such

a plan.” Prudential Ins. Co. of Am. v. Nat’l Park Med. Ctr., Inc., 154 F.3d

812, 819 (8th Cir. 1998) (quoting District of Columbia v. Greater Wash.

Bd. of Trade, 506 U.S. 125, 129, 113 S. Ct. 580, 583 (1992)).

Section 514F.2 is “connected with” and makes a “reference to”

ERISA plans. The main objective of ERISA is to provide employees with

stable benefits. Magellan Health Servs., Inc. v. Highmark Life Ins. Co.,

755 N.W.2d 506, 513 (Iowa 2008). While section 514F.2 may not directly

regulate the amount of healthcare coverage, it is connected to an ERISA

plan because it could affect how much ERISA plans pay their in-network

providers. See Ky. Ass’n of Health Plans, Inc. v. Nichols, 227 F.3d 352,

363 (6th Cir. 2000).

Accordingly, we affirm the commissioner’s ruling that ERISA

preempts section 514F.2 in regards to Wellmark’s self-funded health

plans, because the statute is connected with and references such self-

funded plans.
 25

VIII. Summary and Disposition.

We hold: (1) the interpretation of Iowa Code section 514F.2 has not

been clearly vested by a provision of law in the discretion of the

commissioner, (2) section 514F.2 regulates insurer’s payments to

providers, (3) Wellmark’s fees for chiropractic care are not based solely

on licensure, and (4) ERISA preempts the application of Iowa Code

section 514F.2 to self-funded health plans. Accordingly, we affirm the

judgment of the district court.

AFFIRMED.

Hecht and Zager, JJ., join this opinion. Cady, C.J., concurs in the

result and files a special concurrence. Mansfield, J., files a separate

special concurrence in which Waterman, J., joins. Appel, J., takes no

part.
 26
#15–1248, Abbas v. Iowa Ins. Div.

CADY, Chief Justice (concurring specially).
I concur in the result reached by the majority. I would not reach

the issue of whether or not Iowa Code section 514F.2 (2013) regulates

reimbursement of chiropractic services. Even assuming it did, the lower

fees paid to chiropractors by Wellmark, Inc. would not violate the statute

because substantial evidence supports the finding by the commissioner

in this case that the lower fees were not based solely on licensure.
 27

#15–1248, Abbas v. Iowa Ins. Div.

MANSFIELD, Justice (concurring specially).

I concur in the result and in all but Parts V and VI of the court’s

opinion.

I do not agree that Iowa Code section 514F.2 regulates amounts

paid for chiropractic services. Rather, I believe it merely requires that

healthcare plans with cost-containment features not discriminate in their

coverage of chiropractic services.

As the majority notes, the 1986 legislation enacted four separate

nondiscrimination provisions relating to chiropractic services. See 1986

Iowa Acts ch. 1180, §§ 2, 5, 7, 10. The first required that group health

accident or health insurance plans provide coverage for chiropractic

services on a nondiscriminatory basis. See id. § 2 (now codified at Iowa

Code § 509.3(1)(f) (2017)). The second required nonprofit health service

corporations to provide coverage for chiropractic services on a

nondiscriminatory basis. See id. § 5 (now codified at Iowa Code

§ 514.7(3)). The third required health maintenance organizations (HMOs)

to provide nondiscriminatory coverage for chiropractic services. See id.

§ 7 (now codified at Iowa Code § 514B.1(5)(c)). And the fourth, the one at

issue in this litigation, related to all insurers and self-insurers, and

authorizes them to use

capitated payment systems, prospective reimbursement rate
systems, utilization control systems, incentive systems for
the use of least restrictive and least costly levels of care,
preferred provider contracts limiting choice of specific
provider, or other systems, methods or organizations
designed to contain costs without sacrificing care or
treatment outcome, provided these systems do not limit or
make optional payment or reimbursement for health care
services on a basis solely related to the license under or the
practices authorized by chapter 151 or on a basis that is
dependent upon a method of classification, categorization, or
description based upon differences in terminology used by
 28
different licensees under the chapters of [Title IV, subtitle 3]
of the Code in describing human ailments or their diagnosis
or treatment.

Id. § 10 (now codified at Iowa Code § 514F.2).

The majority finds that the first three provisions merely prohibit

discrimination in coverage while the fourth prohibits discrimination in

rates. I think all four relate to coverage only.

The language in the quoted text of section 10 that begins with the

word “provided” was added to make clear that the specific new

authorization in the 1986 legislation for cost containment systems would

not undermine the broad principle elsewhere in the 1986 legislation

requiring coverage of chiropractic services. Without that proviso, an

insurer or self-insurer might argue that a cost containment system is

exempt from the mandate to cover chiropractic services.

Notably, the legislature employed the phrase, “provided these

systems do not limit or make optional payment or reimbursement.” Id.

(emphasis added). As the appellees point out, the term “limit” is

ambiguous. You can limit something either by paying less for it or by not

paying for it at all. However, as they further observe, the term “make

optional” is not the language of rate regulation. If something is made

optional it is not covered. Thus, the proviso clarifies that chiropractic

services must be covered without discrimination in any cost containment

system.

Also, if the section 514F.2 proviso were intended to grant authority

for rate regulation, as opposed to merely clarifying that the rest of section

514F.2 does not supersede sections 509.3(1)(f), 514.7(3), and

514B.1(5)(c) requiring coverage of chiropractic services on a

nondiscriminatory basis, it would be odd to have such authority appear

only in a proviso. And it would be odder still to prohibit rate
 29

discrimination only when cost containment systems were used, but not

for example in traditional fee-for-service plans.

Moreover, the identical “limit or make optional” language appears

in two of the other nondiscrimination provisions in the 1986 legislation.

See id. §§ 2, 7. Both of those are acknowledged by the majority to be

coverage provisions only. Does the phrase mean two different things

within the very same statute? I think not. See State v. Paye, 865 N.W.2d

1, 7 (Iowa 2015) (“When the same term appears multiple times in the

same statute, it should have the same meaning each time.”).

The court makes much of the fact that section 10 of the 1986

legislation was added as an amendment to the original bill. This strikes

me as a “so what?” When the general assembly added section 10 on cost

containment, at that point it also needed to add language clarifying that

the newly granted authority to utilize cost containment systems would

not override the requirement that insurers not discriminate in coverage

of chiropractic services. Hence, the proviso was included in section 10.

For all these reasons, I would affirm both the district court’s

judicial review decision and the insurance division’s administrative

ruling on this alternative ground. Both of them concluded that the

proviso in Iowa Code section 514F.2 pertained to coverage of chiropractic

services only, and so do I.

Because I do not view Iowa Code section 514F.2 as authority for

regulating rates, I do not need to reach Part VI of the court’s opinion.

However, let me briefly explain my disagreement with that part of the

court’s analysis. To the extent section 514F.2 prohibits discrimination,

the sweep is broader than just discrimination based “solely on licensure,”

as urged by the court. To the contrary, section 514F.2 also prohibits

discrimination based upon the “practices” that chiropractors are
 30

authorized to perform or “a method of classification, categorization, or

description based upon differences in terminology used by different

licensees.” Iowa Code § 514F.2.

To me, when an insurer says it pays all chiropractors categorically

less than it pays other healthcare providers for performing the same

procedures because chiropractors as a group have less training, a more

limited scope of practice, and lower overhead and costs, this is not an

out for the insurer. The insurer is still discriminating based on the

chiropractor’s status as a chiropractor (i.e., his or her licensing and

practice). Wellmark does not claim, for example, that it would pay more

to a chiropractor who had a Ph.D. or an ornate office.

But again, I do not believe Iowa Code section 514F.2 is a rate

provision. Thus, section 514F.2 does not prohibit an insurer from

paying a chiropractor less than another healthcare provider for the same

procedure, so long as the insurer covers chiropractic performance of that

procedure. Accordingly, Part VI of the court’s opinion reaches an issue

that I do not need to reach.

For the foregoing reasons, I specially concur.

Waterman, J., joins this special concurrence.