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Philadelphia-As 3d Circuit Judge Edward R. Becker sees it, perfectly valid lawsuits against health maintenance organizations are routinely being tossed out of court due to the unfairness of the pre-emption provisions in ERISA, and either Congress or the U.S. Supreme Court had better do something about it soon. In the opening paragraph of a powerfully worded 45-page concurring opinion, Becker said he wanted “to add my voice to the rising judicial chorus urging that Congress and the Supreme Court revisit what is an unjust and increasingly tangled ERISA [Employee Retirement Income Security Act] regime.” DiFelice v. Aetna, No. 02-3381. Speaking directly to Congress and the justices, Becker complained that “lower courts are routinely forced to dismiss entirely justified complaints by plan participants who have been grievously injured by HMOs and plan sponsors, all because of ERISA, the very purpose of which was to safeguard those very participants.” The case law of the federal courts, Becker said, has grown “massively inconsistent due to the sheer complexities of the subject and lack of any meaningful guidance.” Since HMOs didn’t even exist when ERISA was passed in 1974, Becker said, Congress could not have foreseen how a law designed to protect workers would now work against them in myriad cases. Becker outlined a series of possible solutions to the problem, including a rewriting of ERISA by Congress or a rethinking by the Supreme Court of its interpretation of ERISA’s pre-emption provisions. Circulating copies “The vital thing, however, is that either Congress or the court act quickly, because the current situation is plainly untenable,” Becker wrote. In his final paragraph, Becker ordered the clerk of the 3d Circuit to send a copy of his opinion to the solicitor of the Department of Labor and to the chairs, ranking members, chief majority counsel and minority counsel of both the Senate Committee on Health, Education, Labor, and Pensions and the House Committee on Education and the Workforce. Becker said he joined the majority opinion, authored by Judge Marjorie O. Rendell, even though he disagreed with the result, because Rendell was correct in her analysis that Supreme Court precedent called for the pre-empting of one of the plaintiff’s main claims. But for Becker, the lawsuit filed by Joseph DiFelice pointed out the serious flaws in the approach courts have taken when deciding whether a worker has the right to sue an HMO. “I believe that the fundamental distinction upon which federal case law currently relies between quantity and quality decisions, or between eligibility and treatment decisions-is untenable, and that the blurring is becoming more severe, not less,” Becker wrote. “To the extent we insist on categorizing every HMO decision as either an eligibility or a treatment decision, we contort ourselves into parsing terms that are conceptually indistinguishable, and we fail to come to terms with the realities of modern health coverage.” In the suit, DiFelice claims he was diagnosed with an upper airway obstruction, and that his doctor-an ear, nose and throat specialist-ultimately decided that he needed a tracheostomy tube. In July 2001, the same doctor decided that DiFelice needed a specially designed tube because the first tube was not working. Infection develops But the suit alleged that Aetna overruled the doctor’s decision and said it had determined that the specially designed tube was in fact not medically necessary. Becker found that Aetna’s decision left DiFelice with three options-bringing an injunctive suit under ERISA, paying out-of-pocket for the specially-designed tube, or receiving a second standard-shaped tube that Aetna agreed to cover. DiFelice opted for the covered tube. The suit alleged that he later developed a serious and progressive soft tissue and bone infection. Doctors were forced to remove “significant portions” of his bone and tissue to treat the infection, the suit alleged, and his pectoral muscle was surgically reconfigured. Aetna lawyers argued that the insurer’s decision was not a “medical” one because it was made on the basis of plan language. “To me this makes no sense,” Becker wrote, “for Aetna made precisely the same individualized determination of medical necessity as [the doctor].” Becker said Rendell’s majority opinion recognized that Aetna’s decision “had a medical component.” But under Supreme Court case law, Becker said, such “mixed situations” require courts to decide the pre-emption question by asking whether the plaintiff could have filed an injunctive suit under ERISA Section 502(a) to challenge the insurer’s decision. “This resolution at least has the salutary effect of creating a bright-line rule, perhaps the best we can hope for absent intervention from a higher authority that would enable a truly principled jurisprudence,” Becker wrote. “But while this rule is relatively easy to apply, that ease comes at the direct expense of plan participants’ welfare.” The premise of the rule, Becker said, “is that HMOs that do not employ their own physicians are solely in the insurance business, that is, they do not provide care and cannot be medically negligent.” Not a medical provider Rendell found that “because there is no allegation that Aetna actually provided the medical care, Aetna’s use of medical judgment could only have led to an eligibility, not a treatment, decision.” Becker said Rendell’s ruling was legally correct under controlling Supreme Court law, but that it was nonetheless wrong. Instead, Becker said, the ruling showed “precisely why ERISA’s failure to change with the times has rendered it incapable of protecting employees, and why Congress must act to prevent further injustice.”

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