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Payers & Providers Midwest Edition - April 12, 2011
Payers & Providers Midwest Edition - April 12, 2011
Midwest Edition
April 26-28 The Department of Justice has expanded its state law.!These responsibilities are established
investigation into the contracting practices of to fulll specic state policy objectives of
Blue Cross and Blue Shield plans, looking at access to health care and controlling its cost.”
F4+</<1<)!>-*!=)(2<3:(*)!F@I*-.)@)4<! whether their terms for dominant provider Rumley further said the government did not
JK):1</.)!L1(2/<&!G:(0)@& networks effectively shut down provide any evidence that the
7)(0)*+3/I!>-*!M3-2)!;&+<)@! competition from other MFN contracts caused economic
F@I*-.)@)4<
8(@%*/05)6!9(++N insurance companies. harm, as the antitrust laws
The Wall Street Journal require. Blue Cross said it has
82/:D!=)*)!E-*!9-*)!F4>-*@(</-4 reported that Blues plans in been more successful than most
Missouri, Kansas, Ohio, West other plans in managing the
Virginia, North Carolina, South growth of health care costs, in
Carolina, and the District of part because of its contracting
April 29- May1 Columbia have received civil practices.
subpoenas. The investigation BCBSM covers 4.3 million
focuses on contracts that feature lives in Michigan and is by far the
9/:3/5(4!;<(<)!9)0/:(2!;-:/)<& “most-favored-nation” clauses, state’s dominant insurer, with
=-1+)!->!?)2)5(<)+!@))</45 or MFN, by which dominant revenues of $19 billion a year.
A(0/++-4!'2(B(6!C(2(@(B--. payers obligate providers to give It is that dominance that calls
preferential rates for medical the MFN contracts into question,
82/:D!=)*)!E-*!9-*)!F4>-*@(</-4
services. Other insurers with said Richard D. Raskin, a health-
less market share would care antitrust expert in the
presumably have to pay more for Richard D. Raskin Chicago ofce of Sidley Austin
the same thing. Sidley Austin LLP LLP, a large law rm.
MFN clauses may be “Unless a payer has a
June 19-23 considered anticompetitive if they dominant position in the market,
prohibit fair price competition, and can be the use of an MFN is unlikely to raise
regulated under antitrust laws. signicant antitrust concerns,” Raskin said.!
Meanwhile, the government’s case against “In the Michigan complaint, DOJ specically
?FG!"#11H!8-4.)*5)4:)!->!;:/)4:)6!
9)0/:/4)6!(40!=)(2<3 Blue Cross Blue Shield of Michigan, led Oct. names the local markets in which it believes
83/:(5-. 18, will come under scrutiny in a court BCBS’s use of an MFN provision is
hearing next week. The Department of Justice problematic.”
82/:D!3)*)!>-*!@-*)!/4>-*@(</-4 and the state attorney general alleged that the He suspects that the DOJ is probably
Blues plan required 70 Michigan hospitals to looking for inhibition of price competition in
guarantee it favorable pricing over competitors individual local markets among the other
using MFN contracts. Blues plans it’s investigating.!
In December the Michigan Blues led a MFNs are bad “because it ensures the
motion to dismiss that will be heard in U.S. incumbent will get the best discounts and
District Court in Detroit on April 19. “We seals off the ability of others to compete,” said
E-Mail conduct our business under a comprehensive Robert Laszewski, a Washington consultant, in
info@payersandproviders.com with regulatory system enabled by a 30-year-old a comment to the Wall Street Journal.
the details of your event, or call Michigan statute that was written solely to “Practically, the dominant insurer will get less
(877) 248-2360, ext. 3. It will be govern Blue Cross Blue Shield of Michigan,”
published in the Calendar section, Blues General Counsel Jeffrey Rumley said
space permitting. in the motion. “Blue Cross Blue Shield of Continued on Next Page
Michigan has unique responsibilities under
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Payers & Providers NEWS Page 2
Top Placement... Blue Plans Antitrust Investigation (Continued from Page One)
Bottomless Potential discounts and the difference would narrow, Likewise, Cigna said: “We’re going to
but the Blue plan would still have a decline to participate in this article.”
Advertise Here substantial price advantage.” The Michigan case and the subsequent
WellPoint Inc., the for-prot parent investigations are “a really important deal
(877) 248-2360, ext. 2
company of Anthem Blue Cross and Blue from the perspective of the Justice
Shield in Missouri and Anthem Blue Cross Department and health care reform in
and Blue Shield in Ohio, said it uses general,” said Tim Greaney, a law professor
In Brief “comparable rate, equal rate, or modied
rate protection clauses” in its contracts,
at St. Louis University. “You can trace this to
the debate over the public option.”
which are sometimes described as MFN The ACA provides for the creation of
clauses. “We believe that comparable rate insurance exchanges, where individuals and
Mayo Clinic Shutters clauses are pro-consumer and can be small groups may choose among competing
advantageous to both parties in a insurance plans in their area. For exchanges
Community Hospital
negotiation by allowing for a longer-term to work properly, there has to be robust
in Arcadia, Wis. contract,” which leads to more network competition and a variety of plans. If Blues
The Mayo Clinic has closed a small stability and value, the company said. plans tie up the local providers in MFN
community hospital in Arcadia, Blue Cross Blue Shield of Kansas is a contracts, it will be extremely difcult for
Wis., saying it was no longer mutual company serving all parts of the state new entrants to come into those markets.
economical to keep it open. except the two counties near Kansas City, “If you tell the hospital in town that it has
Emergency, inpatient, and
maternity services at Franciscan Mo. Its network includes 96% of all to charge (the other plans) more than it
Skemp Healthcare - Arcadia providers in its service area, notably 99% of charges you, the dominant insurer, then no
Hospital were terminated at the end all medical doctors and 100% of all medical new rival can offer an attractive package to
of March, as announced by Mayo facilities, it says on its web site. Mary Beth consumers or employers,” Greaney said. “Its
late last year.
Chambers, spokesman for BCBSK, said the costs are going to be higher, and it can’t
The parent company said low
patient census and little population plan is “cooperating fully” and preparing the compete. It’s just going to be Blue Cross
growth forced them to look at the information the government requested. charging high prices.”
hospital’s long-term prospects. In general, hospital discounts are one tool DOJ has looked closely at concentrated
Around five patients a day were that Blue Cross and Blue Shield companies insurance markets and has wondered why a
seen in the emergency department,
and only seven babies were may use to keep costs down for members, few companies continue to dominate in so
delivered each month. said Brett Lieberman, a spokesman for the many areas of the country. “If there’s
“This is a loss, to the community Blue Cross and Blue Shield Association, the monopoly prots, someone should enter the
and to the dedicated staff,” said Tim umbrella group for the 39 independent Blues market,” Greaney said.
Johnson, M.D., Franciscan Skemp
plans. “It hurts consumers to remove tools Instead, with MFN contracting, both the
president.
About 20 jobs were lost at the that help obtain the lowest possible costs,” he hospital and the insurer lock in their market
hospital, which served about 7,000 said. “It doesn’t make sense for BCBS dominance, and effectively join hands to
people in the surrounding area of companies to reimburse at higher rates than keep costs high, at the consumer’s expense.
southwest Wisconsin. they could otherwise negotiate.” This is one of the reasons that some
The town no longer has around-
the-clock health services. A nursing The federal government dictates MFN reformers wanted a public option, Greaney
home and clinic will continue to terms in its contracts all the time, he added, explained: to shake up too-cozy market
operate. “for the exact same reasons that plans do: to relationships.
The closest town with a full guarantee low prices.” Medicare, Medicaid, BC of Michigan “is asserting that they are
service hospital would be Winona,
and the federal employee health benet so heavily regulated by the state” that they are
Minn., just across the Mississippi
River. program all use variations on a requirement not subject to federal antitrust law. “If the state
that contractors provide the government their tells you to x prices, you can’t be prosecuted
lowest rates. by the feds for anticompetitive conduct,”
St. Luke’s in KCMO National health plans that compete with Greaney said. As a legal argument, “it’s
Opens New Facility the Blues were wary about commenting on something of a stretch,” he added.
for Wright Memorial the Michigan case or the other state From a hospital’s perspective, Raskin said,
investigations. “Any time payer, hospital or these cases are a mixed bag at best.! “On the
Wright Memorial Hospital in Trenton, physician pricing is signicantly out of line, one hand, a hospital would want to keep its
Mo., about 60 miles northeast of it can create an uncompetitive market, and negotiating freedom and not have to give a
Kansas City, is moving patients into a consequently, a burden to employers and preference to any particular payer.
new building on April 12. The new 25- consumers,” said Bill Berenson, Aetna’s ! “On the other hand, the Michigan
bed facility includes about 60,000
square feet of hospital space and a market head for Michigan, in a statement. “It complaint at least suggests that in some
12,000 square foot medical ofce should be the goal of everyone to ensure instances there may have been a quid pro quo,
competitiveness. That, in turn, will deliver and that locally dominant hospital systems
Continued on Page 3 value to the consumer.” Berenson declined were given preferred rates in exchange for
to be interviewed. agreeing to an MFN provision.”!
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Payers & Providers NEWS Page 3
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Payers & Providers OPINION Page 4
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Payers & Providers MARKETPLACE/EMPLOYMENT Page 5
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Or visit: www.payersandproviders.com
*New England Journal of Medicine, 2004.
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Payers & Providers MARKETPLACE/EMPLOYMENT Page 6
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