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Medical ethics focus of insurance dispute between UPMC and Highmark
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Health law experts say UPMC is taking an unusually harsh step -- and a calculated public relations risk -- by barring certain Highmark customers the ability to visit its physicians and clinics, even if they want to pay cash.
But UPMC says its hands are tied by the language of the new Highmark's group insurance product, called Community Blue, a "limited network" product that is offered at a lower cost than Highmark's typical group insurance policies, and achieves that cheaper price by excluding much of the UPMC system from its list of "in-network" facilities.
And UPMC says it would be "unethical ... to overlook the services and arrangements available to Community Blue subscribers, and impose more onerous economic terms on those individuals."
Ethical or not, the region's No. 1 health network is on solid legal ground.
By and large, "practices do not have to see patients," said Mary Pat Whaley, a North Carolina health practice consultant.
But "I haven't really heard of a system [saying], 'We're not [in-network] with you, [so] we're not even going to see your patients out-of-network.' ... It is pretty unusual."
Then again, the entire relationship between Highmark and UPMC is unusual, particularly with regard to the Community Blue product. Usually, when a hospital is considered "out-of-network" by a health plan, that's because the insurance company and the hospital system don't have a formal contract that governs the fees and reimbursement prices paid for medical services.
UPMC and Highmark, on the other hand, are contractually intertwined, but the Community Blue product has been carved out of the larger UPMC-Highmark contract, with its own reimbursement terms for, say, an emergency room visit, or a visit to Children's Hospital.
The two Pittsburgh health care titans agree on that much. Where they disagree is on whether UPMC has the ability to see Community Blue customers.
Highmark says UPMC is free to see those customers, and is simply choosing not to do so for reasons that it has yet to make clear.
UPMC, in an online Q&A, says that "the extent that anyone suggested that UPMC would accept Community Blue subscribers for any services beyond emergencies and those specified in the mediated agreement, they were incorrect."
UPMC also says that it is forbidden from accepting Community Blue patients and then billing them extra, a practice known as "balance billing."
Highmark says that's true, because the underlying reimbursement contract between the two sets the total rates Highmark and its subscribers will pay for UPMC services -- but the insurer also says that "balance-billing" prohibition has absolutely no bearing on whether or not UPMC chooses to see Community Blue patients in the first place. It just stipulates how much UPMC could charge once it sees the patient.
Health experts contacted by the Pittsburgh Post-Gazette agreed that it's generally the health care provider that ultimately decides to see, or not see, a patient when it comes to out-of-network and out-of-pocket scenarios.
UPMC, on its website, has been saying since last autumn that customers of the new Community Blue product, which launched Jan. 1, would not have access to the vast majority of UPMC services and facilities. UPMC says it also sent Highmark letters last year, "repeatedly ask[ing] Highmark to clarify these issues for Community Blue subscribers."
While the issue has been brewing since summer 2012, the confusion came to a head on Saturday, when UPMC officially began turning away Community Blue customers from its practices -- even those who said they are willing to pay "out-of-network" prices or pay out of pocket.
How many customers might be affected is uncertain as Highmark won't divulge its total number of Community Blue customers (other than to say "tens of thousands) and UPMC won't divulge how many dismissal letters it sent (other than to say "hundreds").
Even if the two parties can't agree on how many people are affected, it's ultimately UPMC's decision whether or not to see a patient on an out-of-pocket, or cash, basis. UPMC spokesman Paul Wood said it would be wrong to let a Highmark customer self-pay at a UPMC facility when they could get in-network care just a few miles up the road.
And allowing patients to self-pay now would just delay the inevitable, since it's "likely that self-funding patients will only be able to obtain limited services from UPMC," according to the hospital system's online Q&A.
But several health care law and organizational ethics experts said UPMC's actions were morally ambiguous, particularly from a continuity-of-care standpoint.
It's one thing for a health insurer to change benefits, premiums or its directory of "in-network" facilities, creating obvious obstacles to continuity of care. Insurers can also steer patients away from the more expensive out-of-network options via strict referral rules, making the "choice" of out-of-network care more an illusion than a reality.
But it's another, more unusual thing for a hospital to formally bar a certain group of patients.
"It's not considered morally praiseworthy, but it's also not prohibited," said Susan Dorr Goold, professor of health management and policy at the University of Michigan's Center for Bioethics and Social Sciences in Medicine. During her post-medical school days, she was also a resident physician at UPMC Presbyterian.
Practices aren't obliged to see any particular patient -- for example, they can cut loose a patient for chronic tardiness, or refuse to see Medicaid patients, or simply stop taking on new patients because the practice is too crowded.
The only law that requires a facility to treat a patient is the Emergency Medical Treatment and Active Labor Act, which requires hospital emergency rooms to triage and treat critically ill visitors. The point is to prevent ERs from "dumping" patients who are unable to pay for their care onto other health care providers.
Though the law is not on their side, the patients caught in the middle of the dispute -- mostly Highmark or West Penn Allegheny Health System employees and their families who were among the first to test the new Community Blue product -- say that while they were aware UPMC is now considered out-of-network, they are dumbfounded UPMC won't even take cash.
"Nobody's taking ownership over this," said Karla Perelstine of Upper St. Clair, who works at Canonsburg General Hospital, part of the West Penn Allegheny Health System. "Highmark is blaming UPMC. UPMC is blaming Highmark."
One of her UPMC physicians is now off-limits because of the skirmish. Ms. Perelstine said she found out about her "firing" when she tried to make an appointment.
Not all of the affected subscribers are Highmark or WPAHS employees, and not all live in Pittsburgh. One small business in Erie found out the hard way its 18 employees would no longer be allowed to visit doctors at UPMC Hamot, even though an independent broker -- not affiliated with UPMC or Highmark -- had suggested otherwise.
This year, the company switched to Community Blue "because of ongoing rate increases," according to the company's general manager, who requested anonymity because he does business with UPMC.
His workers were cut off, he said, "including one that had a 25-year history with a doctor and was willing to pay cash. I feel as though I let my employees down."
Employers caught between the two feuding health care nonprofits seem out of luck -- and the various federal laws governing health care access and privacy provide no apparent relief.
For example, there's a waiver right, buried deep in the federal stimulus act of 2009 as a provision of the Health Information Technology for Economic and Clinical Health act, that says patients can temporarily "renounce" their right to use their health insurance coverage. It also allows them to pay for medical services out-of-pocket, without disclosing that fact to the health insurer.
The provision is effectively a privacy amendment to the Health Insurance Portability and Accountability Act, permitting patients to get care without their insurer (or spouses and relatives) finding out.
Usually, the waiver would be used for sensitive procedures -- a vasectomy or tubal ligation, for example, or maybe a heart issue that a patient doesn't want a life insurance company to discover.
But the waiver loophole takes effect only after a doctor or hospital has agreed to see the patient; it's not a back door into the UPMC network, said Abner E. Weintraub, president of the HIPAA Group Inc., a health privacy law consulting group.
The UPMC lockout also touches on the issue of patient abandonment -- the wrongful, unreasonable severing of a patient-provider relationship. But providers are able to avoid that charge by giving written notice, typically by certified mail, explaining the break-up and providing resources to help the patient find another physician or specialist -- all of which UPMC did.
Still, as a physician, Dr. Goold said the hard-line actions of UPMC's administration were tough to swallow.
"You have established relationship with patients. UPMC acting as it did disrupted patient-doctor relationship," she said. "I'm not surprised [if] physicians are upset. ... If it were me, I'd be upset.
"They're not really giving their doctors a chance to do the right thing."
But Dr. Goold also agreed with UPMC in that the design of the Community Blue product makes it unlikely many patients -- even those who now claim they want to keep their UPMC doctors -- would be able to make the cash or out-of-network payments on a long-term basis.
Eventually, "those patients will have a very strong incentive" to leave UPMC and find an in-network physician. That may be why UPMC is drawing a line in the sand, Dr. Goold said.
"Facilities don't usually identify a type of 'patient' they won't see, although physicians can certainly make that determination," said Jessica Berg, professor of law, bioethics and public health at Case Western Reserve University. "There are limits on discrimination both at the federal and state level -- but not based on what type of private insurance coverage you have."
She, too, said she hadn't heard of a hospital conducting itself in such a bare-knuckles way before but added that UPMC may well have good business reasons for its actions. "What if UPMC feels that Community Blue is driving down costs so much that it is hurting patients?" she said. In such case, the health system might feel obligated to pressure Highmark and block its customers.
On the other hand, "If this is simply an effort to put a competitor out of business, that is troubling," Ms. Berg said.
Yet this is the health care system that America has chosen -- one in which hospitals and health insurers are often adversaries over price. When they are negotiating, one of the easiest ways for a hospital to exercise leverage over unsatisfactory treatment from an insurer is to threaten to freeze out certain insurance card carriers.
"This is really harsh, I think," said Kurt J. Darr, professor of hospital administration and health services ethics researcher at George Washington University's Department of Health Services Management and Leadership.
While UPMC says the issue is a "pretty small" one because of Community Blue's minimal customer base, Mr. Darr said, "I'm not sure that is very persuasive to people who are seeking" to continue their relationships with UPMC but are being turned away.
Several local health care observers noted that UPMC's insurance arm, the UPMC Health Plan, has run its own select network for years, in that it excludes West Penn Allegheny Health System hospitals and physicians from its list of in-network providers. But WPAHS says it has never blocked UPMC Health Plan customers access to its facilities.
"We do not block under any circumstance, nor have we ever, self-paying patients or out-of-network access to our facilities and physicians, and that includes UPMC Health Plan subscribers," said Dan Laurent, WPAHS spokesman.
"To do anything less would be unethical and violate our obligation to patients and the community as a nonprofit charitable health care provider."
A Highmark spokeswoman, likewise, said UPMC's actions are "unacceptable and unethical," partly because UPMC will accept cash arrangements or out-of-network payments from other customers.
First Published March 8, 2013 12:00 am
