Cite as: 526 U. S. 40 (1999)
Opinion of the Court
Respondents do assert, however, that the decision to withhold payment to providers may be fairly attributable to the State because the State has "authorized" and "encouraged" it. Respondents' primary argument in this regard is that, in amending the Act to provide for utilization review and to grant insurers an option they previously did not have, the State purposely "encouraged" insurers to withhold payments for disputed medical treatment. This argument reads too much into the State's reform, and in any event cannot be squared with our cases.
We do not doubt that the State's decision to provide insurers the option of deferring payment for unnecessary and unreasonable treatment pending review can in some sense be seen as encouraging them to do just that. But, as petitioners note, this kind of subtle encouragement is no more significant than that which inheres in the State's creation or modification of any legal remedy. We have never held that the mere availability of a remedy for wrongful conduct, even when the private use of that remedy serves important public interests, so significantly encourages the private activity as to make the State responsible for it. See Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 485 (1988) ("Private use of state-sanctioned private remedies or procedures does not rise to the level of state action"); see also Lugar, 457 U. S., at 937; Flagg Bros., 436 U. S., at 165- 166. It bears repeating that a finding of state action on this basis would be contrary to the "essential dichotomy," Jackson, supra, at 349, between public and private acts that our cases have consistently recognized.
The State's decision to allow insurers to withhold payments pending review can just as easily be seen as state inaction, or more accurately, a legislative decision not to intervene in a dispute between an insurer and an employee over whether a particular treatment is reasonable and necessary. See Flagg Bros., 436 U. S., at 164-165. Before the 1993 amendments, Pennsylvania restricted the ability of an
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