UPMC says Highmark is to blame for spurring confusion, prompting prepay rule

April 16-- Apr. 16--Highmark, not UPMC, is to blame for hindering access to health care, spurring confusion among seniors and forcing tens of thousands of Western Pennsylvania patients to choose sides or pay a hefty cost to keep their doctors and hospitals, UPMC's attorneys argued Monday in court.

Highmark has engaged in "aggressive and often misleading marketing campaigns" while UPMC has helped to increase competition in a marketplace that Highmark was closing in on dominating several years ago, UPMC wrote in a response to Commonwealth Court.

"Now that Highmark's monopolization of the health insurance market in Western Pennsylvania has been broken, there is a competitive, dynamic insurance market that offers consumers a choice of products to suit their needs and has driven down insurance and health care costs," UPMC wrote in the response to Pennsylvania Attorney General Josh Shapiro's petition to modify a 2014 agreement between UPMC and Highmark.

UPMC further blamed Highmark's actions for leading to a controversial prepay rule for Highmark-insured patients seeking non-emergency care at most UPMC hospitals starting this summer. Though the prepay rule is permissible under federal regulations, "this policy is driven largely by Highmark's refusal to pay UPMC directly for out-of-network care as well as Highmark's record as an unreliable payor," UPMC wrote.

Highmark, meanwhile, has said its officials were surprised by UPMC's soon-to-be-imposed prepay rule after learning of it this past fall and have since asked UPMC to reconsider. Highmark has blamed UPMC for putting patients in the middle of their corporate feud and rebuked UPMC's rule -- which requires patients to seek an estimate in advance, prepay in full before treatment and obtain any reimbursement directly from Highmark -- as placing an "unnecessary" and "unprecedented" burden on the Medicare-eligible population.

Multiple legal battles underway

Monday's arguments marked UPMC's latest filing amid multiple legal cases underway to decide whether the attorney general has the authority to change and expand the terms of the five-year-old, state-brokered consent decree between UPMC and Highmark, two Downtown Pittsburgh-headquartered rivals that each control health care provider and insurance arms.

Shapiro announced his legal effort to do so in early February, after what his office described as two years of failed negotiations with UPMC to do something to protect thousands of seniors, people with disabilities and cancer patients set to be affected when UPMC and Highmark's networks officially split on July 1.

Last week, Shapiro appealed to the state Supreme Court over a recent Commonwealth Court partial ruling regarding a critical dispute: whether the Attorney General's Office can convince the court to change, or at least postpone, the June 30 expiration date of the consent decree and impose additional terms before time runs out.

Shapiro has repeatedly emphasized the need to "protect the good people of Western Pennsylvania and their access to quality, affordable health care" while criticizing UPMC for choosing to spend "exorbitant, untold resources as it seeks to stop access to that health care for people who paid for" UPMC's tax-subsidized facilities. He accused UPMC of breach of fiduciary duties and violating laws regarding charities, unfair trade and consumer protection.

UPMC accused Shapiro of "siding with Highmark" over the public interest.

In a statement to the Tribune-Review, Highmark reiterated its support for Shapiro's proposal as being "in the best interest of the communities we serve."

"We have long held to the truths that vital community assets must be available for the public good and that nonprofit, charitable organizations exist for the benefit of the community," Highmark spokesman Aaron Billger said Monday by email, declining to respond to specific claims made in UPMC's filing. "We have always been, and will remain, willing to support ideas to address health care that is accessible to all."

Separately, UPMC is suing Shapiro in federal court, claiming that Shapiro is overstepping his bounds and encroaching on powers typically relegated to policymakers, insurance regulators and federal agencies such as the Centers for Medicare & Medicaid.

Among other demands, Shapiro wants UPMC hospitals and doctors to accept patients from Highmark and any other interested provider at in-network rates "in perpetuity," which would mean dropping the controversial prepay rule for out-of-network patients. Shapiro also wants to place new demands on UPMC, such as requiring it to replace a majority of its board.

In his attempt to force UPMC "into a contract to which it never agreed, forever," Shapiro is attempting to usher in "a radical, new anti-competitive system of health care delivery on UPMC and UPMC Health Plan, which other insurers and providers would readily abuse to their advantage," UPMC wrote.

Shapiro has defended his right to do so based on a modification provision folded into the decree, as well as via his office's nonprofit oversight role.

Origins of the feud

Both UPMC and Highmark operate as nonprofit, "purely public charities," which means they receive tax exemptions and must pump profits back into efforts that promote the public good. Each says it spends hundreds of millions of dollars annually on free or discounted care and community benefits.

Both UPMC and Highmark executives have been touting several consecutive quarters of record-breaking, strong financial performance.

Each entity took in $18.78 billion in operating revenue last year and each has more than $6 billion in net assets.

The pair's bitter rivalry stems from years of intensifying competition, billing disputes and aggressive growth plans through which each system has invested billions of dollars into new facilities and targeted the other's market share.

On the seventh page of Monday's 72-page filing in Commonwealth Court, UPMC's attorneys explain the origins of the feud: Highmark's announcement in 2011 that it intended to acquire West Penn Allegheny Health System -- the basis for Highmark's Allegheny Health Network -- and form a provider-insurer organization in direct competition with UPMC.

UPMC, saying it was unable to agree on a contract with the competing hospital system, announced the networks were set to split on June 30, 2012.

Years of negotiations and legal challenges led to the 2014 consent decree that's now in dispute. The decree aimed to smooth the transition and shield patients from the fallout, but the rivals have since clashed over its interpretation.

UPMC argued that soon after the decree was inked, Highmark flouted its terms by rolling out a new Medicare Advantage plan that excluded UPMC doctors and hospitals.

Highmark's business plan has included efforts to use "its insurance monopoly to move tens of thousands of patients away form UPMC," UPMC wrote in Monday's filing.

"We've always believed that a level playing field should exist among health insurance companies and health care providers," Highmark's Billger said. "We believe that all health plans and health systems should compete based on their value to the customer."

Two months ago, UPMC executives boasted having one of their best Medicare Advantage enrollment periods yet this past fall, while Highmark experienced a net loss of 21,000 members as seniors during the same period. Such increasingly popular plans are private alternatives to traditional Medicare, often for a lower monthly premium with more perks.

UPMC now has eclipsed Highmark in the Medicare Advantage insurance market, securing about 37 percent of the market share to Highmark's 26.2 percent, just five years after Highmark had a commanding lead. Many consumers reported switching plans specifically because of the impact of the looming split.

RELATED: UPMC says it's eclipsed Highmark in Medicare Advantage insurance market, Aetna gains

Natasha Lindstrom is a Tribune-Review staff writer. You can contact Natasha at 412-380-8514, [email protected] or via Twitter .

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