Updated Procedural History of UPMC – Highmark Litigation

Below is a summary of UPMC-Highmark dispute as of March 4, 2019. This information is limited to litigation proceedings with no discussion about prior contracts or negotiations.

  1. March 2011 – UPMC announces it will not renew UPMC-Highmark contract due to expire December 31, 2012.
  2. May 1, 2012 – Parties enter into mediated agreement which states that parties (UPMC and Highmark) will allow in-network access for all commercial, Medicare and Medicare Advantage members through December 31, 2014, and:
  • Parties would negotiate rates for access beginning in 2015 for Western Psych, oncology, UPMC Bedford and UPMC Northwest.
  • UPMC Children’s and Mercy agreements would remain in effect.
  1. April 23, 2013 – Pennsylvania Insurance Department approves Highmark – West Penn Allegheny Health System affiliation.
  2. June 12, 2013 – UPMC resolves to forego any extension of the existing commercial contracts, excluding Children’s, Mercy, Northwest and Western Psych as a result of the affiliation.
  3. June 27, 2014 – Pennsylvania Department of Health and Insurance intervene in the dispute and broker the Consent Decrees. EXHIBIT A
  4. October 30, 2014 – Commonwealth Departments of Health and Insurance seeks to hold Highmark in contempt of Consent Decrees for marketing a Community Blue program that excluded UPMC participation. Judge Pellegrini of Commonwealth Court denied the Commonwealth’s Petition.  EXHIBIT B
  5. November 30, 2015 – Pennsylvania Supreme Court rules that Highmark Medicare Advantage members should be treated by UPMC through June 30, 2019. EXHIBIT C
  6. February 7, 2019 – Pennsylvania Attorney General Josh Shapiro petitions Commonwealth Court to modify the 2014 Consent Decree, alleging: EXHIBIT D
  • The necessity to enforce compliance with charitable obligations
  • Violation of the Solicitation of Funds for Charitable Purposes Act
  • Breach of Fiduciary Duty
  • Violation of Uniform Trade Practices and Consumer Protection Law
  1. February 21, 2019 – UPMC files federal class action complaint in the United States District Court for the Middle District of Pennsylvania, alleging: EXHIBIT E
  • Preemption by federal law
  • Violation of Accountable Care Act (ACA)
  • Violation of ERISA
  • Antitrust violation of the Sherman Act
  • Illegal takings in violation of the “Taking Clause of the Fifth Amendment” to the U.S. Constitution
  • Violation of federal Equal Protection
  • Violation of Due Process

10. February 21, 2019 – UPMC also filed a Motion for a Preliminary Injunction in the U.S. District Court for the Middle District of Pennsylvania, in conjunction with the above Complaint, against the Attorney General. Exhibit F

11. February 21, 2019 – UPMC has also filed a Motion to Dismiss the Attorney General’s Petition to Modify the Consent Decree. Exhibit G

For additional information contact Mike Cassidy or Mark Hamilton.

Procedural History of UPMC – Highmark Litigation

Below is a summary of UPMC-Highmark dispute as of February 22, 2019. This information is limited to litigation proceedings with no discussion about prior contracts or negotiations.

  1. March 2011 – UPMC announces it will not renew UPMC-Highmark contract due to expire December 31, 2012.
  2. May 1, 2012 – Parties enter into mediated agreement which states that parties (UPMC and Highmark) will allow in-network access for all commercial, Medicare and Medicare Advantage members through December 31, 2014, and:
  • Parties would negotiate rates for access beginning in 2015 for Western Psych, oncology, UPMC Bedford and UPMC Northwest.
  • UPMC Children’s and Mercy agreements would remain in effect.
  1. April 23, 2013 – Pennsylvania Insurance Department approves Highmark – West Penn Allegheny Health System affiliation.
  2. June 12, 2013 – UPMC resolves to forego any extension of the existing commercial contracts, excluding Children’s, Mercy, Northwest and Western Psych as a result of the affiliation.
  3. June 27, 2014 – Pennsylvania Department of Health and Insurance intervene in the dispute and broker the Consent Decrees. EXHIBIT A
  4. October 30, 2014 – Commonwealth Departments of Health and Insurance seeks to hold Highmark in contempt of Consent Decrees for marketing a Community Blue program that excluded UPMC participation. Judge Pellegrini of Commonwealth Court denied the Commonwealth’s Petition.  EXHIBIT B
  5. November 30, 2015 – Pennsylvania Supreme Court rules that Highmark Medicare Advantage members should be treated by UPMC through June 30, 2019. EXHIBIT C
  6. February 7, 2019 – Pennsylvania Attorney General Josh Shapiro petitions Commonwealth Court to modify the 2014 Consent Decree, alleging: EXHIBIT D
  • The necessity to enforce compliance with charitable obligations
  • Violation of the Solicitation of Funds for Charitable Purposes Act
  • Breach of Fiduciary Duty
  • Violation of Uniform Trade Practices and Consumer Protection Law
  1. February 21, 2019 – UPMC files federal class action complaint in the United States District Court for the Middle District of Pennsylvania, alleging: EXHIBIT E
  • Preemption by federal law
  • Violation of Accountable Care Act (ACA)
  • Violation of ERISA
  • Antitrust violation of the Sherman Act
  • Illegal takings in violation of the “Taking Clause of the Fifth Amendment” to the U.S. Constitution
  • Violation of federal Equal Protection
  • Violation of Due Process

10. February 21, 2019 – UPMC also filed a Motion for a Preliminary Injunction in the U.S. District Court for the Middle District of Pennsylvania, in conjunction with the above Complaint, against the Attorney General. Exhibit F

11. February 21, 2019 – UPMC has also filed a Motion to Dismiss the Attorney General’s Petition to Modify the Consent Decree. Exhibit G

For additional information contact Mike Cassidy or Mark Hamilton.

CMS Issues Hospital Price Transparency Rules

As part of the 2019 Medicare annual inpatient prospective payment system (PPS) fee schedule update, CMS has added a “rule” requiring hospitals to publish a list of standard charges beginning January 2019.

CMS explained this initiative under the “Transparency” and “Request for Information” topics in the following link:  https://www.cms.gov/newsroom/fact-sheets/fiscal-year-fy-2019-medicare-hospital-inpatient-prospective-payment-system-ipps-and-long-term-acute-0

CMS subsequently issued two sets of Frequently Asked Questions (FAQs) regarding this rule.

Essentially, the guidance states as follows:

  • Hospitals are free to choose whatever format they prefer as long as the information represents the hospitals’ current standard charges as reflected in their charge masters in a machine readable format.
  • The transparency requirements apply to all items and services provided by the hospitals, including medical services, drugs, biologicals, etc.
  • The transparency requirements do not transplant, replace or restrict hospitals from posting any other quality information or additional price transparency information on their websites.
  • Although CMS is fully supportive of all state online price transparency initiatives, those initiatives do not satisfy the federal requirement and do not exempt hospitals from the CMS requirements.

It is not difficult to envision why just a list of the charges might not be all that helpful.  The “charge master” is just a collection of the hospital’s list prices or fee schedule, which is what is charged for any service or product and has little relation to what the hospital actually collects from insured individuals.  Any person who has received an explanation of benefits (EOB) from a health insurance carrier indicating that the hospital or physician charges were some astronomical amount but the payment was just a fraction thereof, knows the difference between the list prices and the actual prices.  This has traditionally been a significant problem for self-pay or uninsured individuals, since the hospitals’ standard position has been that the charges, or the list price, is the appropriate fee.

One step that will make this more meaningful is disclosure of the typical Medicare payments for those services.  CMS has released an online tool called “Procedure Price Lookup” which may provide some useful price comparisons.  https://www.cms.gov/newsroom/press-releases/new-online-tool-displays-cost-differences-certain-surgical-procedures

Colorado Hospital Pays $111,400 HIPAA Settlement For Failing To Stop Former Employee From Having Access To Patient Protected Health Information

The U.S. Department of Health and Human Services, Office for Civil Rights (“HHS”) just announced an $111,400 settlement and substantial corrective action plan for a Colorado hospital whose former employee still had access to electronic patient protected health information (“PHI”).

In 2013, Pagosa Springs Medical Center failed to de-activate a former employee’s username and password for a web-based scheduling calendar, which included patients’ electronic PHI.  Further, the hospital failed to have a business associate agreement in place with the web-based scheduling calendar vendor, as required by HIPAA.

In the Corrective Action Plan, the hospital will update its security management and business associate agreements (and associated policies and procedures) and provide additional training to its workforce about those matters.

You can read the HHS Press Release and the Resolution Agreement here: https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/pagosasprings/index.html

If your office would like guidance on how it can prevent HIPAA violations from occurring, please contact our firm.

Danielle Dietrich is a healthcare and litigation attorney in Tucker Arensberg’s Long Term Care Practice Group. She is licensed to practice law in Pennsylvania, Ohio and West Virginia.  Danielle can be reached via email: ddietrich@tuckerlaw.com, telephone: 412-594-5605 or on Twitter at @DLDietrich.

New Federal Kick-Back Laws Regarding Opioid Treatment

“Eliminating Kick-Backs and Recovery Act of 2018” (EKRA) is a part of a group of laws recently passed by Congress to expand the law enforcement spectrum available to fight the opioid epidemic. EKRA is part of approximately 70 separate actions referred to as the SUPPORT Act, i.e. Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients in Communities Act.

EKRA adds a new Anti-Kickback rule to the existing healthcare fraud enforcement spectrum. It expands the Anti-Kickback scope to all healthcare programs, rather than just the classic federal programs (Medicare, Medicaid and TriCare), and essentially eliminates Safe Harbor protection by statutorily narrowing the available protections.

EKRA states that “whoever” (which is an unlimited category not limited to just providers or doctors, such as the Stark Act) with respect to a “healthcare benefit program” (which is defined as any healthcare program that affects interstate commerce):

• Solicits or receives remuneration in return for referring a patient or patron to a recovery home, clinical treatment facility or laboratory, or
• Pays or offers any remuneration directly or indirectly to induce referrals of an individual to a recovery home, clinical treatment facility or laboratory or in exchange for any individual using such services

Shall be fined not more than $200,000, imprisoned not more than 10 years, or both for each occurrence.

The only exceptions, which thereby eliminates the application of other Safe Harbors, is that the act shall not apply to

1. A discount or other reduction in price obtained by a provider or other entity under a healthcare program if the reduction is properly disclosed and appropriately reflected in cost or charges.

2. A payment made by an employer to an employee or an independent contractor (who have “bonafide” relationships with the employers) if the payment is not determined by or does not vary by

• The number of individuals referred to a particular recovery home, clinical treatment facility or laboratory,
• The number of tests or procedures performed, or
• The amount billed to or receipt from the healthcare benefit program from the individuals referred to a particular recovery home, clinical treatment facility or laboratory.

3. Bonafide drug discounts.

4. Payments made as compensation for services under the personal services and management contract Safe Harbor provisions of 42 CFR 1001.952(d).

5. Waivers or discounts defined in 42 CFR 1001.952(h)(5) or other co-insurance or co-payments of the healthcare program.

 

 

2018 National Practitioner Data Bank Guidebook

In October 2018, the National Practitioner Data Bank (NPDB) published the third edition of the NPDB Guidebook.

NPDB publishes monthly “NPDB insights”.  I could not send the link to that, but I have attached a copy of the page announcing the new Guidebook here:  NPDB Insights.

I am also attaching a link to the Guidebook.  https://www.npdb.hrsa.gov/resources/aboutGuidebooks.jsp

You can also obtain all of these by logging on to the NPDB homepage:  https://www.npdb.hrsa.gov/

 

Allergy Practice Pays $125,000 HIPAA Settlement for Disclosing Patient Protected Health Information to Reporter

The U.S. Department of Health and Human Services, Office for Civil Rights (“HHS”) just announced a $125,000 settlement for a disclosure of patient protected health information (“PHI”) to a reporter.

In 2015, a patient of Allergy Associates of Hartford, P.C. (“Allergy Associates”) contacted a local TV station about a dispute that the patient had with Allergy Associates regarding her use of a service animal.  A reporter for the TV station contacted Allergy Associates for comment, and Allergy Associates disclosed the patient’s PHI to the reporter.

After the disclosure, HHS initiated an investigation and notified Allergy Associates.  Even after it was notified of the investigation, Allergy Associates failed to discipline the individual who had disclosed the patient’s PHI.

To settle the matter, Allergy Associates has agreed to pay HHS $125,000 and enter into a Corrective Action Plan.

You can read the HHS Press Release and the Resolution Agreement here: https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/allergyassociates/index.html

If your office would like guidance on how it can prevent HIPAA violations from occurring, please contact Danielle Dietrich via email,telephone: 412-594-5605 or on Twitter at @DLDietrich, or any of our other attorneys at the firm.

2019 Medicare Physician Fee Schedule Provides Future “Telehealth” or “Communication-Based” Billing Opportunities

The final Medicare 2019 Physician Fee Schedule https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/PhysicianFeeSched/index.html rule was posted on November 1, 2019, to be effective January 1, 2019.  It includes Section II(D) entitled “Modernizing Medicare Physician Payment by Recognizing Communication Technology-Based Services”, with several subsections.

  1. Brief communication technology-based services (EG Virtual Check-In) (HCPCS Code G2012)
  2. Remote evaluation of prerecorded patient information (HCPCS Code G2010)
  3. Interprofessional Internet Consultations (CPT Codes 99451, 99452, 99446, 99447, 99448 and 99449)
  4. Additional Medicare Telehealth Services
  5. Expanded Telehealth Home Dialysis
  6. Telehealth Substance Abuse Disorder Prevention and Treatment

This post will be devoted to the Communication-Based Codes and Virtual Check-In.  CMS has proposed to allow certain “modernized” services, as distinguished from the traditional established Medicare Telehealth rules which have specific technology and location requirements.

Starting January 1, 2019, Physicians or NPPs who are authorized to bill for E/M services may report time-based codes for services to existing patients for specified consults and referrals that do not involve or require a face-to-face patient encounter.  These are identified as interprofessional “telephone/internet/electronic” health record assessment and health management services provided by a consulting physician based upon time devoted, as follows:

  • 99446 (5-10 minutes)
  • 99447 (11-20 minutes)
  • 99448 (21-30 minutes)
  • 99449 (31 minutes or more)

 These services include verbal or written reports to other physicians or qualified health care professionals treating the patient.  Furthermore, CPT codes 99451 and 99452 include time devoted to preparing written reports.

CMS has also introduced two codes for non-face-to-face evaluations of patients used to determine whether the patient requires an office visit (i.e. a Virtual Check-In).

  • G2010 (Remote evaluation of recorded video and/or images submitted by an established patient [e.g., store and forward], including interpretation with follow-up with the patient within 24 business hours, not originating from a related E/M service provided within the previous 7 days nor leading to an E/M service or procedure within the next 24 hours or soonest available appointment).
  • G2012 (Brief communication technology-based service, e.g. virtual check-in, by a physician or other qualified health care professional who can report evaluation and management services, provided to an established patient, not originating from a related E/M service provided within the previous 7 days nor leading to an E/M service or procedure within the next 24 hours or soonest available appointment; 5-10 minutes of medical discussion).

 

Opioid Update: New Federal Law

Opioid Update: New Federal Law – The Substance Use-Disorder Prevention That Promotes Opioid Recovery and Treatment for Patients and Communities Act

On October 24, 2018, President Trump signed into law the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, also known as the SUPPORT for Patients and Communities Act (H.R. 6).  According to the White House, this Act “addresses the opioid crisis by reducing access to and the supply of opioids and by expanding access to prevention, treatment and recovery services.” [i]

The Act itself is quite long (250 pages) and the full text can be found here: https://www.congress.gov/bill/115th-congress/house-bill/6.  It contains a number of provisions including increased access to telehealth services, increased Medicare coverage for women and children, stiff penalties for illegal kickbacks in return for patient referrals for recovery treatment and loan repayment for those providing substance use disorder treatment in underserved areas.

An upcoming issue of the Allegheny County Medical Society’s Bulletin will contain an article by this author, providing a more extensive summary of the SUPPORT for Patients and Communities Act.

If you have questions or concerns about how these new laws will affect you or your practice, please contact our firm.

Danielle Dietrich is a healthcare and litigation attorney in Tucker Arensberg’s Health Care Practice Group. She is licensed to practice law in Pennsylvania, Ohio and West Virginia.  Danielle can be reached via email; telephone: 412-594-5605 or on Twitter at @DLDietrich.

                       

[i] https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-signed-h-r-6-law/

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