Hospitals vs. the world

A hospital sign with the 'H' replaced with a dollar sign

Hospitals sued the Trump administration yesterday over its requirement that they disclose their negotiated rates, the latest of the industry’s moves to protect itself from policy changes that could hurt its revenues.

Why it matters: Hospitals account for the largest portion of U.S. health costs — which patients are finding increasingly unaffordable.

The big picture: Hospitals are going to war against Trump’s price transparency push while simultaneously trying to kill Democrats’ effort to expand government-run health coverage.

  • The industry is one of the main forces behind the Partnership for America’s Health Care Future, the group that’s gone on offense against “Medicare for All” and every other proposal that would extend the government’s hand in the health system, as Politico recently reported.
  • It’s also emerging victorious from blue states’ health reforms so far, which all started as proposals much more threatening to hospitals than the watered-down versions that eventually replaced them.

Between the lines: The industry has a lot to lose; even non-for-profit systems are, as my colleague Bob Herman put it, “swimming in cash.”

  • The Trump administration’s transparency measure could lead to either more pricing competition or further regulation, if it exposes egregious pricing practices.
  • And Democrats’ proposals often feature government plans that pay much lower rates than private insurance does.

Hospitals argue that the transparency measure could end up raising prices if providers with lower negotiated rates see what their competitors are getting. They also warn that Democrats’ plans could put hospitals and doctors out of business and threaten patients’ access to care.

The bottom line: Politicians are reacting to patients’ complaints about their health care costs, but the industry has historically been excellent at getting its way.

Go deeper: Hospitals winning big state battles




Dignity Health’s class-action settlement actually worth $700M, workers say

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A California federal judge refused to approve a deal in October requiring Dignity Health to pay more than $100 million to settle a class-action lawsuit accusing the San Francisco-based health system of using a religious Employee Income Retirement Security Act exemption it wasn’t entitled to. Current and former Dignity workers argue the deal is actually worth more than $700 million in court documents filed Nov. 25, according to Law360.

Dignity Health allegedly used the religious exemption to underfund its pension plan by $1.5 billion. On Oct. 29, a federal judge in the Northern District of California refused to sign off on a proposed settlement because it contained a “kicker” clause. The clause would allow Dignity to keep the difference between the amount of attorneys’ fees awarded by the court and the more than $6 million in fees authorized by the settlement.

“Although the fact is not explicitly stated in the Settlement, if the Court awards less than $6.15 million in fees, Defendants keep the amount of the difference and those funds are not distributed to the class,” Judge Jon S. Tigar said, according to Bloomberg Law. “The Court concludes that this arrangement, which potentially denies the class money that Defendants were willing to pay in settlement — with no apparent countervailing benefit to the class — renders the Settlement unreasonable.”

Though the judge refused to sign off on the deal, he gave the parties an opportunity to revise the agreement and resubmit it for approval. Workers tweaked the proposed deal in a renewed motion for settlement filed Nov. 25.

According to the motion, the parties have agreed to eliminate the kicker clause.

“As provided in the new settlement, class counsel will apply to the court for approval of a total award of $6.15 million, for attorney fees, expenses and incentive awards,” the motion states. “If the court awards less than the requested amount, Dignity Health has agreed to pay the balance into the plan’s trust.”

The workers also argue that the attorney fee award is reasonable given the value of the settlement.

Under the proposed settlement, Dignity would add $50 million in retirement plan funding in 2020 and 2021.The settlement also requires Dignity to fund the pension plan until 2024 and prohibits the health system from reducing accrued benefits because of a plan merger or amendment for 10 years. For 2022 through 2024, Dignity Health’s cash contributions to the plan will be at least the “minimum contribution recommendation,” an amount calculated each year by independent actuaries.

“Under this settlement, Dignity Health will make substantial contributions to the plan for five years, in an amount we estimate to exceed $700 million,” the motion states.

The court previously noted that plaintiffs did not identify any settlement provisions governing how Dignity Health’s actuaries calculate the minimum contribution recommendation. The plaintiff’s actuary provided more information on the calculation in a supplemental declaration submitted Nov. 25.

The workers are seeking preliminary approval of the new settlement.


Physician staffing firm suing patients

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An emergency room staffing firm owned by TeamHealth has filed thousands of lawsuits against patients in Memphis in the last few years, ProPublica and MLK50 report.

This is a collision of two storylines: the aggressive billing practices of private equity-backed health care companies, and providers’ decision to take patients to court to collect their medical debts.

  • Media reports have, until now, mostly focused on hospitals’ lawsuits, but ProPublica and MLK50’s reporting suggest the practice could be more widespread.

Between the lines: TeamHealth has already been in hot water for its role in surprise billing.

  • Emergency room physicians send patients surprise medical bills more often than other specialties, especially physicians employed by TeamHealth.
  • These doctors then have leverage to obtain higher in-network payment rates, making the practice lucrative.
  • The group is also one of the main funders of the dark-money group that has run millions in ads against what was Congress’ leading solution to surprise medical bills.
  • The company was acquired by the Blackstone Group in 2017.

By the numbers: The Memphis subsidiary Southeastern Emergency Physicians has filed more than 4,800 lawsuits against patients in Shelby County General Sessions Court since 2017, per ProPublica and MLK50.

  • TeamHealth said last week, after receiving questions from reporters, that it will no longer sue patients and won’t pursue the lawsuits it’s already filed.


Oregon insurer sues, says 3 health systems have locked it out of Portland market

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Trillium Community Health Plan has filed a federal antitrust suit against three of the largest hospital systems in Portland, Ore., claiming they colluded to block the insurer from operating in the area, according to The Oreonian. 

The Eugene, Ore.-based health plan filed the suit against Legacy Health, Providence Health and Services and OHSU Health System, all based in Portland. 

Trillium alleges that the Portland health systems have engaged in a “group boycott” that if left unchecked, “would have a significant negative impact on Oregon Health Plan members, limiting the healthcare choices of some of the most vulnerable members of Oregon’s community,” according to The Portland Business Journal. 

In July, the Oregon Health Authority named Trillium a “next generation” coordinated care organization and awarded it the contract to serve Medicaid patients in the Portland area. CCOs, as they are known as, work together to provide healthcare services and benefits to patients enrolled in the state’s Medicaid program.

Since then, Trillium claims that it “pursued every avenue” to work with the three health systems without success, and without them, it is unable to break into the metro area Medicaid market.

Legacy, Providence and OHSU are all founding members of Health Share, the existing CCO in the area that will compete against Trillium.

“The hospitals’ anticompetitive behavior leaves Trillium no choice but to file an antitrust action in the hopes that the collusion will stop and that Trillium will be granted the ability to work with the Portland area hospitals,” the suit reads, according to the Business Journal. 


Feds owe health insurers $1.6 billion in unpaid subsidies, judge rules

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A federal judge this week ordered HHS to pay about 100 health insurance plans a total of $1.6 billion in unpaid subsidies.

While the federal government will likely appeal the case, the judgment illustrates the sheer magnitude of the funds the Trump administration could be forced to pay.

The insurers are part of a class action brought by Wisconsin-based Common Ground Healthcare Cooperative, which challenged the federal government’s failure to pay cost-sharing reduction subsidies that were intended to lower healthcare costs for certain people who bought coverage on the Affordable Care Act exchanges.

The amounts owed to each insurer range from tens of thousands to hundreds of millions of dollars. Kaiser Foundation Health Plan is owed the largest amount—$220.3 million for 2017 and 2018 across its plans in several states, according to Modern Healthcare’s analysis of damages outlined in the order.

The federal government owes $159 million to Blue Shield of California and $132.1 million to Blue Cross and Blue Shield of South Carolina to make up for the unpaid cost-sharing reduction subsidies. Utah-based SelectHealth, Dayton, Ohio-based CareSource and Oscar Health, headquartered in New York, are also owed some of the largest amounts.

Judge Margaret Sweeney in the U.S. Court of Federal Claims in February 2019 ruled in favor of Common Ground and other insurers that brought similar lawsuits, finding that the government violated its obligation to pay the cost-sharing reduction subsidies when the Trump administration abruptly cut them off at the end of 2017. The government argued that Congress never appropriated the payments.

Insurers responded by hiking premiums to make up for the absence of those subsidies. Because of the way ACA premium tax credits are structured, the federal government ended up paying higher premium tax credits as a result.

But Sweeney said the lack of an appropriation and the insurers’ strategy for mitigating the loss of the cost-sharing reduction subsidies by hiking premiums doesn’t get rid of the government’s liability. Sweeney ordered the insurers to file a report indicating the amounts they each were owed for 2017 and 2018 and entered judgment on the claims on Tuesday.

Katie Keith, a health law professor at Georgetown University and ACA expert, said the judgment, while big, is less than the $2.4 billion that insurers initially estimated they were owed.

Nicholas Bagley, law professor at the University of Michigan Law School, said the government will likely appeal now that a judgment has been entered; the merits of that appeal will likely be resolved by some consolidated cases related to the cost-sharing reduction payments already pending in the U.S. Court of Appeals for the Federal Circuit, which has not yet set a date for oral arguments.



Surprise Settlement In Sutter Health Antitrust Case

Surprise Settlement In Sutter Health Antitrust Case

Sutter Health has reached a tentative settlement agreement in a closely watched antitrust case brought by self-funded employers, and later joined by the California Attorney General’s Office. The agreement was announced in San Francisco Superior Court on Wednesday morning, just moments before opening statements were expected to begin.

While representatives for both sides confirmed they had reached a tentative settlement, they would not divulge details of the agreement, which must be approved by the court.  Superior Court Judge Anne-Christine Massullo told the jury impaneled for the case that details likely would be made public during approval hearings in February or March.

There were audible cheers from the jury following the announcement that the trial, which was expected to last three months, would not continue. Officials with the attorney general’s office and Sutter Health declined requests for comment.

Sutter stood accused of violating California’s antitrust laws by using its market power to illegally drive up prices. Health care costs in Northern California, where Sutter is dominant, are 20% to 30% higher than in Southern California, even after adjusting for cost of living, according to a 2018 study from the Nicholas C. Petris Center at the University of California-Berkeley that was cited in the complaint.

The case was a massive undertaking, encompassing years of work and millions of pages of documents, California Attorney General Xavier Becerra said beforehand. If the plaintiffs prevailed, Sutter was expected to face damages of up to $2.7 billion.

The nonprofit giant has 24 hospitals, 34 surgery centers and 5,500 physicians across Northern California, with $13 billion in operating revenue in 2018. The state’s lawsuit alleged Sutter has aggressively bought up hospitals and physician practices throughout the Bay Area and Northern California, and exploited that market dominance for profit.

Among other tactics, it accused Sutter of employing an “all-or-none” approach to contracting with insurance companies, demanding that an insurer that wanted to include any one of the Sutter hospitals or clinics in its network must include all of them — even if some of those facilities were more expensive than a competitor.

Sutter Health consistently denied the allegations, saying its large, integrated health system offers tangible benefits for patients, including more seamless, high-quality care and increased access for residents in rural areas. Sutter also disputed that its prices are higher than other major health care providers, saying its internal analyses tell a different story.

The case was expected to have nationwide implications on how hospital systems negotiate prices with insurers. Even with details of the agreement not yet public, attorneys and patient advocates said they expect the settlement to mark a pivotal moment.

David Balto, a former federal regulator who is now an antitrust lawyer in Washington D.C., called the developments “precedent-setting.”

“You have all these metropolitan markets where you have large hospital systems, but Sutter Health in the Bay Area is like the filet mignon of the problem,” Balto said. “The problems in San Francisco are bigger than anywhere else. And you see that in how Sutter has exploited its market power to the nth degree.”

Sutter’s tactics were hard to challenge under antitrust law, Balto added. But “what [Becerra] did was bring together hard facts with top-notch scholarship proving there was an overwhelming problem and that Sutter’s strong-arm tactics were the cause of the problem.”

Anthony Wright, executive director of the advocacy group Health Access California, said he wasn’t privy to the settlement details, but that he expected it to include “some meaningful remedies in terms of adjusting some of the anti-competitive practices and contract provisions that Sutter has advanced over the years.”

“While we await the details of the settlement,” he said, “the lawsuit itself sends a strong signal to hospital chains across the nation and all health care providers planning to adopt predatory prices.”

Jaime King, associate dean and a professor of law at UC Hastings College of the Law, said Sutter’s decision to settle “in some ways is not a surprise. On the eve of trial, we often see big settlements.”

Still, she said, it comes at a cost: “I think it’s a shame we won’t ever get to see the evidence that would have been brought forward in this case about Sutter’s contracting and pricing practices. There are a lot of very large health systems that are charging a lot of money for their services, and this case had the opportunity to give us much more insight into what we’re spending our health care dollars on.”

Sutter continues to face trial on a separate federal antitrust lawsuit.