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UPMC seeks to join antitrust case against Blues plans


UPMC is seeking an injunction in a major antitrust lawsuit against Blue Cross and Blue Shield insurers that would force the Blues to contract with the academic health system.

The lawsuit accuses dozens of Blues plans of illegally impeding competition by refusing to compete with one another. The issue has become especially relevant to the Pittsburgh-based academic health system because it will go out of network with Highmark Health—a Blues plan—once a consent decree between the two expires in June. UPMC wants to contract with other non-Highmark Blues plans in the areas it serves, but their policies prevent it from doing so.

“The UPMC Hospitals treat thousands of patients who are members of Blues other than Highmark,” UPMC wrote in its court filing. “These non-Highmark Blues patients represent a significant portion of the UPMC Hospitals’ Blues patients.”

In its motion for preliminary injunction in the case, UPMC said that it has sought to resolve the issue outside of court, but hasn’t been successful. The health system said it offered to accept the same rates it received for services through its contract with Highmark, without having to pay Highmark’s BlueCard Program fees, said Joe Whatley, an attorney with Whatley Kallas in Birmingham, Ala., who serves as co-lead counsel for the provider plaintiffs.

“It’s saying to the other Blues: ‘We’ll take the same rates that Highmark has imposed on us and you don’t even have to pay Highmark’s BlueCard fees,’ ” he said. “It’ll save you money.”

The case already includes as plaintiffs providers that accept Blues plans, but Whatley said having UPMC file an injunction could help nudge the case to trial faster.

“We’re having issues where the Blues are trying to push the trial date off until some time in 2021 or 2022,” he said. “We’re trying to get to trial much earlier than that.”

UPMC has been engaged in a years-long public feud with Highmark. Earlier this month, Pennsylvania’s attorney general filed a court petition seeking to require the health system to fairly negotiate with Highmark and other health plans.

In its filing, UPMC wrote that it has been injured by the Blues’ antitrust violations in the same manner as the other plaintiffs, but unlike the others, “the UPMC Hospitals will face acute reputational damage, and potential civil fines stemming from a new lawsuit filed by the Pennsylvania Attorney General predicated, in part, on UPMC’s inability to secure in-network contracts with the non-Highmark Blues.”

A federal appeals court in December upheld an earlier ruling that found the Blues’ policy against competing with one another, and their agreement to limit competition on non-Blues branded products, is a per se violation of the Sherman Antitrust Act.

Whatley said he has been trying to get the Blues to reach a settlement in the case, but that hasn’t happened yet.

“Nothing would make us happier than to do that,” he said.

The Blue Cross and Blue Shield Association did not respond to a request seeking comment, and UPMC declined to comment beyond its court filing.