Bumpy road ahead for suit against UPMC
Pennsylvania Attorney General Josh Shapiro says he is confident his lawsuit to force Pittsburgh health giant UPMC to open up its health system to all insurers should get a timely review by the courts.
Others are not so sure the strategy will work the way the attorney general hopes.
Following Thursday’s high-profile news conference announcing the legal challenge to UPMC, speculation already has begun about what happens next and when. Despite Mr. Shapiro’s expressed confidence, for example, one local
health law attorney believes the lawsuit may hit legal speed bumps, while the head of a local Medicare counseling service is cautioning consumers against making hasty decisions in anticipation of a quick resolution, at least for the current year.
“I don’t see it [the lawsuit] changing anything,” said Bill McKendree, coordinator for Apprise, a program operated by Family Services of Western Pennsylvania that helps seniors select Medicare plans.
Mr. Shapiro’s Commonwealth Court filing comes at an interesting juncture.
This year, the U.S. Centers for Medicare and Medicaid Services has authorized an extended nationwide Medicare Advantage open enrollment period through March 31.
For the next seven weeks, seniors who are Medicare Advantage members can make a one-time change to another plan, or switch to traditional Medicare Parts A and B with a standalone Part D prescription plan, Mr. McKendree said.
Meanwhile, Highmark Advantage Plan members have continued in-network access to UPMC hospitals and doctors through June 30. At that point, the state-brokered consent decrees signed by Highmark and UPMC officials in 2014 will expire, affecting about 175,000 seniors in Allegheny and Erie counties who have coverage through Highmark Medicare Advantage plans.
The office of the state Attorney General is putting its full weight behind extending the consent decrees in perpetuity.
While no one expects a resolution by April, the question for many will be: could it happen before July 1?
“If you’re counting on some resolution to be made before July 1, be careful,” Mr. McKendree said. “There is no guarantee this will work its way through the judicial system and, even if it does, there is no guarantee there is going to be a decision that is going to give you your desired result.”
His advice to consumers: Base any plan changes for 2019 coverage on what you know right now.
That said, a lawsuit filed by the state attorney general presumably carries a certain added weight with the courts and, in this case, the 73page complaint takes dead aim at UPMC.
In accusing the Pittsburgh region’s major health system of not meeting its charitable obligations, Mr. Shapiro’s filing includes a years-long recitation of his assessment of UPMC’s sins — from refusing to contract with Highmark in 2012 to last fall’s announced policy that out-of-network patients must pay in advance for care beginning July 1.
The lawsuit even asks the court to “make structural changes” to UPMC’s board of directors and executive management — suggesting the requested “modification” of the consent decree could more accurately be called a restructuring.
Mike Cassidy, a health law attorney with the Downtown firm Tucker Arensburg, said none of that may matter.
While the attorney general’s complaint wants to modify and extend the consent decrees, he noted, the state Supreme Court ruled unanimously last July that the decrees end this summer.
That ruling settled a dispute about when Highmark Medicare Advantage members would lose innetwork access to UPMC. Mr. Cassidy said it could come into play in considering Mr. Shapiro’s request for an extension.
“He’s asking the court to overturn itself,” he said. “That’s tough to do.”
Joe Grace, spokesman for the attorney general’s office, disagrees.
Mr. Grace says that last year’s Supreme Court ruling applied to the consent decrees’ provision regarding coverage for vulnerable populations. The new petition, he said, “was filed under a different clause — the modification clause,” which allows UPMC and Highmark to modify the consent decrees if they believe it would be in the public’s interest.
“The Supreme Court has not considered whether the modification clause could be used to extend the length of the decrees.”
Mr. Cassidy also thinks the attorney general’s position that UPMC is not meeting its charitable obligations may not be a winning argument.
“The court is going to say that it has nothing to do with the consent decrees. There’s no June 30 deadline with that.”
The attorney general’s filing “carries political weight,” Mr. Cassidy did allow. “That may be the only thing that’s going to compel the court to say, ‘This is a really exceptional circumstance and maybe we should give them six more months” when coverage for 2020 begins.
“But I think it’s unlikely.”
Liz Kennon, a broker with Kennon Insurance Consultants Inc. which is based in Shadyside, also pointed out that the regular Medicare open enrollment period ended Dec. 7.
“Everyone’s synched into the plan they’re going to have for the year.”
In other words, there may be little consumers can do for now except watch as another chapter of the near-decade long HighmarkUPMC battle is written.
“In my opinion,” said Ms. Kennon, “the damage has already been done.”
“There is no guarantee this will work its way through the judicial system and, even if it does, there is no guarantee there is going to be a decision that is going to give you your desired result.” — Bill McKendree, Apprise