UPMC fires back at state AG, seeks to join BCBS antitrust lawsuit
UPDATE: March 19, 2019: UPMC wants to depose Pennsylvania's Executive Deputy Attorney General Jim Donahue, who the health system says holds key information about its previous negotiations with Highmark regarding a consent decree between the two. "General Shapiro cannot hide his negotiator from discovery after initiating a legal action against UPMC challenging the meaning of the Consent Decree," the filing states. The attorney general's office is seeking to quash the motion, saying Donahue is a major figure in the ongoing case, but the health system claims it is not after privileged information or litigation strategy.
University of Pittsburgh Medical Center filed a counter lawsuit on Thursday against the Pennsylvania attorney general, who is seeking to force the healthcare giant into contracting with rival Highmark. The system is also seeking to insert itself in a broader lawsuit over the ways Blues operate.
The flurry of filings taps into big questions over payer competition and underscores tensions seen throughout the country between insurance companies and providers as they negotiate contracts, particularly in highly concentrated markets. States have stepped up their enforcement of consumer protections against rising healthcare costs — but UPMC is saying its regulators have greatly overstepped their bounds.
Earlier this month, Shapiro alleged Pittsburgh's dominant medical provider wasn't living up to its charitable mission as a nonprofit, accusing the health system of "forsaking its charitable obligations" in exchange for "corporate greed."
The legal duel stems from a contract dispute between UPMC and its rival Highmark. Until June 30, the two have a legal agreement protecting consumer access to the other's network through a consent decree. UPMC refuses to modify the decree and contract with Highmark, which risks in-network access to UPMC hospitals for Highmark members.
In response to the attorney general's initial complaint, UPMC alleges that Shapiro's attempt to renew and modify an expiring agreement between the Pittsburgh health system and Highmark is "unprecedented and unwarranted." The modification would, among other things, remove the majority of UPMC's board of directors and force the integrated system to contract with any payer.
The state AG responded on Friday, accusing UPMC of ignoring its mission and noting it would not be intimated by the healthcare behemoth.
"With their filings today, UPMC has shown they intend to spend countless hours and untold resources on a legal battle instead of focusing on their stated mission as a non-profit charity — promoting the public interest and providing patient access to affordable health care," said Attorney General's Office spokesman Joe Grace.
In its notice to the AG, UPMC lays out five examples it calls frivolous enough to get Shapiro's motion dismissed — including previous testimony delivered by Deputy Attorney General Jim Donahue in 2014, when he told state representatives there is "no statutory basis" to make the two companies contract with each other without setting a dangerous economic precedent.
"If we force the resolution in this case, we really could not avoid trying to force a similar resolution in all those other situations, and that is simply and unworkable method of dealing with these problems," Donahue said at the time. "We'd be putting our finger on the scale, so to speak … and we're not sure what those effects would be."
One effect is a class action lawsuit, which UPMC filed separately Thursday. It alleges Shapiro has violated at least four federal laws: Medicare Advantage statutes protecting competition, the Affordable Care Act's nonprofit payer regulations and the Sherman Act and the Employee Retirement Income Security Act of 1974.
"Purporting to act in his official capacity, General Shapiro has illegally taken over nonprofit healthcare in the Commonwealth of Pennsylvania," UPMC's class action states. "Without rulemaking, legislation or public comment, General Shapiro has announced new 'principles' that radically (and often in direct contravention of existing federal and state law) change how nonprofit health insurers and providers operate, now rendering the Attorney General the arbiter of how nonprofit health organizations should envision and achieve their mission."
UPMC says Blues system bad for business
Separate from its battle with the state attorney general, UPMC is attempting to jump in the middle of a legal antitrust battle over how Blue Cross Blue Shield plans operate. UPMC is seeking both a preliminary injunction and a motion to intervene in the years-long federal case in Alabama.
UPMC is asking the Alabama court to stop the Blues plans from enforcing their own market allocation agreements that prevent UPMC from contracting with other Blues plans, according to the filing. UPMC says a significant chunk of its patients have a Blue Cross Blue Shield plan from a different provider other than Highmark.
Joe Whatley, co-lead counsel for provider plaintiffs in the Alabama case, told Healthcare Dive UPMC "presents a good example of how the Blues are abusing their illegal agreement for their benefit and to harm healthcare providers throughout the country."
UPMC argues that it would contract with other Blue Cross Blue Shield plans, separate from Highmark, but cannot due to the way Blues operate — or limit how they compete with one another. BCBS plans tend to stake out their own geographic areas and avoid competition with one another, a practice the Alabama court has already found is in violation of antitrust laws. A BCBS appeal to the Alabama judge's opinion was already struck down by the 11th U.S. Circuit Court of Appeals late last year.
UPMC is asking the Alabama court for an injunction, or to step in and stop the Blues plans from enforcing or complying with their own market allocation agreements that are preventing UPMC from contracting with other Blues plans, according to the filing. And because the hometown plan, Highmark, does not have a contract with UPMC after June 30, it means that other Blues plan members that have enjoyed in-network access to UPMC will soon lose access after the consent decree expires.
About 24% of UPMC's hospital patients have a Blue Cross Blue Shield plan other than Highmark.
UPMC contends that it has tried to contract with other Blues but was turned down. "The average non-Highmark Blues patient does not know that UPMC has offered contracts to each of these plans and been turned down because the Blues' illegal market allocation prevents them entering into such an agreement with UPMC," according to the filing.
Without an injunction, UPMC alleges it will suffer irreparable harm to its reputation and will lose a significant number of patients who have a non-Highmark Blues plans.
The Pennsylvania attorney general's office has not responded to Healthcare Dive's request for comment and UPMC declined to discuss the case further.
Follow Tony Abraham on Twitter