Seniors are getting caught in health giant tug-of-war

April 15--For Pittsburgh-area health care consumers, 2015 is shaping up to be an instant replay of 2014 -- except this time, it's senior citizens and not working-age customers caught in a tug-of-war between Highmark Health and UPMC.

Unlike last year, it's unclear whether any of the safety-net provisions built into the Highmark-UPMC divorce agreement would help preserve UPMC access for seniors who stick with their Blue Cross Blue Shield coverage in 2016.

"Since the consent decree contemplates vulnerable populations would have access to UPMC, it does not specifically address how other provisions, like continuity of care, would apply," said Highmark spokesman Aaron Billger. Seniors in general and Highmark Medicare customers in particular were identified by the June 2014 consent decree as a "vulnerable" population, meriting special protection and access assurances.

But just two months after the Dec. 31 expiration of the long-term, full-access contract that gave Highmark's under-65 customers in-network access to all of UPMC's hospitals and clinics, UPMC notified Highmark that it intends to end the Medicare contract between the two companies, too.

That means, come Jan. 1, Highmark's Medicare Advantage customers may not have full UPMC access. Currently, Highmark has about 182,000 Medicare customers in Western Pennsylvania.

UPMC says it took the action -- which drew heavy criticism last week from Democratic Gov. Tom Wolf and several southwestern Pennsylvania lawmakers, who accused the Pittsburgh health care provider of "devious" scare tactics -- because insurer Highmark is refusing to pay the full contractual freight for oncology therapies, skipping out on its $143 million tab.

Highmark says UPMC has been using a loophole in Medicare law to extravagantly overbill insurers for cancer therapies since 2010. By changing administrative billing codes, submitting outpatient therapies as inpatient treatments, UPMC can charge much more for cancer treatments, even though there's no change in the nature or location of the treatment.

The consent agreement gives ammunition to both sides.

The decree, which governs the breakup of Highmark and UPMC through mid-2019, says, "With respect to Highmark-covered vulnerable populations, UPMC [shall] treat all [of Highmark's] Medicare participating consumers as in-network."

The decree also says UPMC can withdraw from "these arrangements if Highmark should take the position that it has the authority to revise the rates and fees payable under those arrangements unilaterally and materially."

But if both sides stick to their guns and political intervention proves fruitless, could other provisions of the consent decree kick in?

The "continuity of care" provision says that "Highmark and UPMC mutually agree that the continuation of care of a Highmark member in the midst of a course of treatment at UPMC shall be on an in-network basis at in-network rates." And since seniors are more likely than the under-65 cohort to have multiple medical conditions -- and ongoing relationships with multiple UPMC physicians -- they could make the case that they are in the midst of a "course of treatment."

UPMC says it's not that simple. Now that UPMC has severed the Medicare Advantage contract, those Highmark policies exist outside the protections of the consent decree, according to spokesman Paul Wood.

He said an October Commonwealth Court ruling, which gave Highmark permission to sell Medicare Advantage policies without any UPMC access, could come into play.

"Highmark launched their 'No UPMC' Community Blue product outside of the protections of the consent decree," Mr. Wood said in an email. "Next year, there will be no differences -- in terms of access, at least -- between Community Blue and Security Blue or Freedom Blue."

If seniors are excluded from the consent decree protections that are afforded to the under-65 Highmark subscribers, that would mean no in-network UPMC access whatsoever.

That would seem to run afoul of an admonition issued by state Attorney General Kathleen Kane, who said in 2013, following UPMC's purchase of Altoona Regional Health System, that UPMC "has every obligation to keep the Altoona facility accessible to all members of the public, without qualification."

On the Medicare Advantage issue, Highmark seems to have allies at the office of the state attorney general. "The provisions of the consent decree are meant to apply to all parties," according a statement from the office.

Both the state departments of Insurance and Health said their attorneys were reviewing the matter, and were unable to comment on how the consent decree might be applied. The governor's office said the same.

While new Medicare policies kick in Jan. 1, the timeline for a resolution is more compressed. The open enrollment period, during which time seniors can switch Medicare plans, begins in October. The design of those plans, including the built-in doctor networks, must be submitted to the U.S. Centers for Medicare & Medicaid Services by June.

Highmark says it believes the situation will be resolved before then. Mr. Wolf says the state will intervene, and could challenge UPMC in court, if the hospital network doesn't back down.

If UPMC does yank Highmark's Medicare access, and if there are no consent decree protections in place for seniors, Highmark could lose a big chunk of its Western Pennsylvania Medicare Advantage business.

From 2014 to 2015, Highmark lost 10 percent of its regional Medicare enrollment. Those losses came with UPMC still in the Highmark network. The 2016 attrition could be much greater, said Joseph Angelelli, a gerontology and health services professor at Robert Morris University.

"There's not an employer in the equation" when it comes to seniors selecting health plans, Mr. Angelelli said. "It's easier to switch a health plan than it is to switch a doctor, [especially] if you've been seeing a doctor a long time."

Bill Toland: [email protected] or 412-263-2625.

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