Commonwealth Court Declines to Extend Consent Decree

Although there have been a number of issues raised by the Pennsylvania Attorney General in the UPMC/Highmark situation, including UPMC’s status as a charitable institution, the primary issue in the Attorney General’s lawsuit was a request to extend the June 30, 2019 termination date for the UPMC-Highmark Consent Decrees. The Commonwealth Court declined to extend the term of the Consent Decree. Click here to read the opinion.

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/

 

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