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Do HMOs practice medicine?

The Supreme Court didn't actually decide that question today. Its ruling in Aetna v. Davila (consolidated with Cigna v. Calad) that a patient who developed bleeding ulcers requiring the transfusion of seven units of blood and five days in a critical care bed could not sue his HMO under a Texas patient's rights law does, however, lead one to ask the question again.

Rather than summarize the holding, I direct you to the SCOTUSBlog*, and to the Health Law Blog, both of which have good summary links and commentary.

Most observers seem to think the Court "got the law right" (which I hope is true given the 9-0 decision). The concurring opinion, written by Ginsburg and joined by Breyer, raises the question of whether the limited remedies available to injured patients under ERISA mean that Congress ought to consider changing ERISA.

The question that most interests me, though, is one that was sidestepped in the Court's opinion, namely: when are HMOs making decisions that exclusively concern coverage under an insurance plan, and when are they making "mixed coverage and eligibility decisions," i.e. practicing medicine?

The question was explicitly raised in Julie Rovner's audio piece on NPR, which pointed out that much of what HMOs do can't be neatly described as merely deciding whether or not to pay for a particular treatment. Especially when HMOs engage in "disease management" for chronic conditions like diabetes, it seems factually inaccurate to say, as Clarence Thomas did in his opinion for the Court, that an HMO is deciding only whether or not they will pay for a particular treatment. The fact that HMOs do more than this is something that HMOs use to sell themselves to employers looking to cut costs: the HMO claims that its payment strategies will really "manage care."

At what point does this management of care shade over from coverage decisions into treatment decisions?

During the oral argument, the counsel for the respondents (the patients) described the reality of what happens when an HMO makes a "coverage decision." In the case of Ruby Calad, who had just undergone a hysterectomy, the decision by the HMO's discharge nurse that Cigna would not pay for any more than one post-op day in the hospital, despite the surgeon's opinion that she should stay longer, meant that she left after one day.

I'd like to know the way this decision was presented and acted upon. I suspect it wasn't like the Court's opinion describes it. It probably wasn't the case of someone informing Ms. Calad that the HMO was only ponying up for one day, but that if she wanted to stay longer she could certainly do so if she found alternative sources of funding. I suspect it was more like a real medical decision: "the HMO says you gotta go home lady; so I'll bag up your stuff and take out your IVs."

The Court may have gotten the law right, but I'm not so sure they got the facts right.

* Not a pinpoint link, secondary to the site's annoying javascript linking scheme...



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