PJ Media

Court Says Bureaucrats, Not Doctors, Decide What Is 'Medically Necessary'

Earlier this month, a panel of the 11th U.S. Circuit Court of Appeals ruled in favor of three states that filed suit to have final medical decision-making authority transferred from doctors to state bureaucrats.

In March, as reported here at Pajamas Media, Georgia, Florida, and Alabama appealed U.S. District Judge Thomas Thrash’s ruling that physicians, not government bureaucrats, were qualified — both legally and medically — to decide what was “medically necessary” for their patients, regardless of bureaucrats’ opinions.

The thrust of the states’ argument in Moore was summed up in the amicus brief filed by the state of Florida, which said, “Treating physicians … cannot be trusted with this sort of decision. When left to their own devices, they advocate for their patients, and deem all manner of unproven, dangerous, ineffective, cosmetic, unnecessary, bizarre, and controversial treatments as ‘medically necessary.'”

The “final arbiter” of medical decisions is and should be “the state,” said attorney Robert Highsmith in March 24 oral arguments — and the panel of the 11th Circuit agreed.

As a result of this ruling, doctors within the 11th Circuit’s jurisdiction will no longer be “left to their own devices” to treat Medicaid patients under their care. However, current events suggest the relegation of medical professionals’ recommendations to the status of mere suggestions pending review by state bureaucrats isn’t likely to be limited to Medicaid cases alone for long.

As taxpayer-funded and bureaucrat-run health care programs like Medicaid and the State Children’s Health Insurance Program (SCHIP) are expanded to include more middle-class Americans, and as the federal government’s control over the health care market grows astronomically under the guise of “health care reform,” the issue of government encroachment on doctor-patient decisions will only increase.

The first steps toward nationalizing this problem have already been taken at the federal level, where authors of the American Recovery and Reinvestment Act included funding and authorization for the benign-sounding “comparative effectiveness research,” or CER. This term, quite simply, refers to the drawing-up of those cost-effectiveness spreadsheets state and federal bureaucrats use to approve or deny care prescribed for patients by their physicians.

Outside Georgia, where Moore reinforced the state’s right to ration health care to Medicaid recipients, the greatest example of CER at work is in Great Britain, where bureaucrats at the National Institute for Clinical Effectiveness (NICE) have become notorious for denying doctor-prescribed treatments based on their impersonal spreadsheets — and where patients who choose to pay out of pocket to go above and beyond the treatments covered by the National Health Service forfeit, permanently and by law, the state-managed health care benefits their taxes pay for and their fellow Britons are still receiving.

Government is a jealous mistress. What simply appears to be an issue of who pays for a few extra hours of in-home care today could very well turn into a get-half-coverage-or-none-at-all situation here, like it is in Britain, before too long.

The answer to this dilemma is simple: get government as far away from our health care and medical decisions as possible. The American people need to be making those decisions on their own, with their physicians. When government is given free rein to overrule medical professionals, patients and their doctors lose their rightful, meaningful role in determining their own medical fates.