Kane taking UPMC-Highmark consent decree dispute to court

State attorney general joins fray between rival health care giants

State Attorney General Kath- leen Kane plans to go to court Monday to file a motion “to enforce the consent decree” between UPMC and Highmark after weeks of discussion between state and federal officials resulted in no agreement in the latest dispute between the two health care giants.

Exactly what part of the nearly 2-year-old consent decree between UPMC and Highmark Ms. Kane believes either or both sides are violating was not clear because her staff attorneys “are still drawing up the motion” to present to Commonwealth Court, said Chuck Ardo, Ms. Kane’s spokesman.

“What has brought it to this point is what is publicly known: the dispute between the parties,” Mr. Ardo said Friday.

The latest dispute became public two weeks ago when it was revealed that UPMC is threatening to lock Highmark’s 182,000 Medicare Advantage customers out of its hospitals starting Jan. 1, 2016.

After UPMC sent Highmark a notice of nonrenewal in February about the Medicare Advantage access, UPMC told the state it would follow through on the threat to keep those 182,000 seniors with that policy out of its hospitals unless Highmark agreed to increase cancer payments to UPMC and drop a lawsuit related to those payments.

The cancer payment issue has been brewing for a year after Highmark said last April that it would no longer pay UPMC certain “markups” for cancer care that

UPMC provided in outpatient centers, rather than in doctors’ offices.

Medicare, the federally subsidized health program for people age 65 and older, allows hospitals to receive higher fees for certain procedures when they are done in outpatient clinics, rather than in doctors’ offices.

But Highmark believed the recent billings for outpatient clinic cancer treatments were not proper and it stopped paying for the increased amount. Two weeks ago, UPMC said Highmark owed it $143 million.

A section of the consent decree between the two seems to indicate that the cancer payment dispute could be mediated by the state, but no resolution has been reached on it with or without the state’s help since it became an issue.

The consent decree is the state-mediated agreement overseen by the Commonwealth Court that was reached between the two sides in the summer of 2014, and it governs the breakup between Highmark and UPMC after UPMC declared previously that it would no longer allow most Highmark insurance customers to use its hospitals.

The agreement did clarify, however, that some specialty and regional UPMC hospitals would still be innetwork for Highmark customers. And a notice from UPMC to its physicians earlier this year also gave UPMC physicians lots of room to retain Highmarkinsured patients.

Though both UPMC and Highmark blame the other for this latest dispute, the state in a letter to UPMC two weeks ago said that UPMC’s move to block Medicare Advantage payments from its hospitals was a “breach” and a violation of the consent decree.

“Your tactic here is deceptive and deeply troubling,” the letter said in part. “This unjustifiable action will only make the matter worse for those who have already suffered enough.”

The letter was co-signed by the office of the state attorney general and the state insurance and health departments.

The consent decree does say that UPMC can take some actions on its own under “circumstances that would justify a UPMC termination of contracts serving vulnerable populations.”

But state officials do not believe those circumstances have been met, based on the letter.

In addition, Ms. Kane, echoing many state and federal elected officials, said in a statement two weeks ago that she would like Highmark and UPMC to “come back to the table and resolve this conflict.”

Despite weeks of meetings, both with federal and state elected officials and state staff, no truce apparently has been reached in the ongoing battle between the state’s largest hospital network, UPMC, and largest insurance company, Highmark.