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Miles J. Zaremski Headshot

Bureaucrats Already Make Treatment Decisions so Why Fault a Public Option?

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Within the last couple of days, President Obama and his spokespersons have created a real firestorm of contention by now downplaying the need for a public option. Even though he was quite clear when he was running for the top job last fall that Americans needed a real choice to compete with the private market in order to drive down costs (insurance premiums, medical services, and the like), now he is taking a 180 degree turn. How politician-like to say one thing and do another. If his cue comes from those folks saying they do not want care and treatment to be provided by bureaucrats in a government-run program, he should listen up.

Less than a decade ago, the United States Supreme Court decided the case of Pegram v. Herdrich. Among the legal issues in that case was whether or not the parties involved in providing health care were paying incentives to providers in order to minimize patient care and treatment. Of particular significance was the court's articulation that decisions to treat patients are based in part on eligibility requirements under the plan pursuant to which care and treatment is provided.

Fast forward to a few years back when our high court decided the cases of Aetna Health Inc. v. Juan Davila and Cigna HealthcAre of Texas, Inc. v. Ruby Calad.. In the Aetna case, the agreement between Aetna and Davila's employer gave Aetna "complete authority to review claims for Covered benefits", including discretionary authority to determine whether and to what extent eligible individuals and beneficiaries are entitled to coverage and construe any disputed or doubtful terms under the agreement. In this particular case, Davila argued that he should have been provided different medication than he was given, but the bureaucrats at Aetna were calling the shots in this regard.

In the Cigna case, a decision was made as part of the pre-certification process to provide Calad a one-day hospital stay, given her type of surgery (hysterectomy with rectal bladder and vaginal repair). Following surgery, her surgeon believed additional hospitalization was required. The Cigna discharge nurse insisted upon the pre-certified one day stay. As in the Aetna case, Cigna had a provision in its plan that hospital stays were to be determined by pre-admission certification or continued stay review.

There are scores of other legal cases that recognize the interplay of insurance coverage benefit decisions with what care and treatment to provide patients. Ask any doctor as well what his or her experiences have been with bureaucrats calling the shots instead of them.

The point here is that in these Supreme Court cases, bureaucrats were making decisions based on judgments that the treating decisions should either have been making, or to which these doctors disagreed because they would be harmful to the patient. I should know, because I was an attorney representing amicus (friend of the court) parties in both cases (as well as in the Pegram case).

Why raise these cases at all in the discussion about the feasibility of a public insurance plan option? Simple. If opponents of a public option don't want one because they want their doctors to make the treatment decisions, they will be sorely disappointed. The private market already interjects itself, a la benefits to be provided under private health plans, into what care and treatment should be provided to patients -- even if the attending doctor disagrees.

A public option should not be taken off the table for this reason. In fact, any public option would ensure that treatment decisions will be made by the doctor...and not by some bureaucrat.

President Obama, listen up: have your staff review these Supreme Court decisions and start taking the "bull by the horns" in pressing for a public option that will let doctors make the decisions on how to treat their patients.

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