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12 April 2011

Midwest Edition

Calendar Blues Probe Expands Into Midwest


Michigan Case On “Most-Favored” Contracting

April 26-28 The Department of Justice has expanded its state law.!These responsibilities are established
investigation into the contracting practices of to fulll specic 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 ofce 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. signicant antitrust concerns,” Raskin said.!
Meanwhile, the government’s case against “In the Michigan complaint, DOJ specically
?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-prot 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 modied
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 difcult 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 prots, 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 benet 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 signicantly 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 ofce 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

Longer ALOS!* Catholic Merger Proceeding Slowly


Advertise Here Resurrection, Provena Taking Longer on Diligence
(877) 248-2360, ext. 2
*For our ads, not your hospital The proposed merger of Resurrection Health Combined, the systems had 2010 revenues of
Care and Provena Health, two large Roman nearly $3 billion. They will have a medical
Catholic hospital systems in Illinois, is staff of 5,000 physicians and 22,000

In Brief proceeding slowly and probably won’t close


before the fall, Resurrection said last week.
employees, and almost 100 locations of care.
A non-binding letter of intent was
In a letter to afliated physicians on April announced on Feb. 3. “By working together,
6, Sandra Bruce, president and CEO of we not only increase access to outstanding
building. Resurrection, said the systems were working care and compassionate service to our
The hospital cost $30 million, said through complex issues of integration. The patients and community residents, but
St. Luke’s Health System in Kansas proposed merger must yet be approved by the leverage the benets of our advanced
City, Mo., the hospital’s parent
systems’ boards and state regulators. A closing continuums of care within the new health
organization. The hospital includes
two labor and delivery suites and an of the merger would likely come in the fall, reform law,” said Guy R. Wiebking, president
emergency department staffed around she said. and CEO of Provena, in a statement.
the clock with physicians. It also Provena Health comprises six hospitals, 36 The merger doesn’t have a denitive
features an electronic intensive-care clinics, and various other afliated entities, timetable. “It would depend on the due
unit that has automated warning and
decision-support software. An outside the Chicago region. It is sponsored by diligence,” said Brian Crawford, spokesman
electronic medical records system will three orders of Roman Catholic sisters and is for Resurrection. “If all goes well, I would
be installed in 2012. based in Mokena. expect sometime in the fall we would have a
Wright Memorial is considered a Chicago-based Resurrection includes six closing.
“critical access hospital”, meaning it
hospitals with 2,336 staffed beds, as well as “It’s probably a little slower than expected.
meets Medicare reimbursement
criteria designed to improve access to eight nursing and rehabilitation centers, ve An enormous amount of work goes into due
health care in underserved rural areas. retirement communities, and other services. diligence; we thought we could do it quicker,”
The St. Luke’s system now includes
11 hospitals and numerous primary
care clinics and other ancillary health
facilities.

HHS Gives 129


Minnesota HMOs To Limit Earnings
Dollar-Limit Waivers to State Contracts Voluntarily Set at 1% Profit Margin
Health Plans in March
The Department of Health and Gov. Mark Dayton of Minnesota has been trying Health plans had prots of 3.8% on state
Human Services granted 129 new to place a prot cap on earnings to HMOs from managed-care contracts in 2010 and 2.6% in
approvals in March for waivers to state healthcare programs. He achieved a partial 2009. The health plans said the state’s pro-
health plans that cannot meet the victory last week with the announcement that jected budget of $5 billion played a role in
annual dollar limit on benets four not-for-prot health plans – Blue Cross Blue their decision to voluntarily restrict their
specied in the Affordable Care Act. Shield of Minnesota, HealthPartners, Medica, earnings. A spokesman for Medica said the
The total of waivers was 1,168 by and UCare – will make only a 1% prot margin giveback was consistent with the plan’s not-
March 31.
The ACA forbids plans from
on their 500,000 state-insured patients in 2011, for-prot orientation. UCare gave $30 million
imposing dollar limits on benets by under a voluntary agreement with the governor’s back to the state in March.
2014. Between now and then, insurers ofce. If they make more than that amount, they Dayton, a Democrat, has introduced
may gradually phase out their annual will pay it into a fund that supports a state care competitive bidding for next year’s contracts
limits. Between September 2010 and plan for the working poor. with managed care companies.
September 2011, plans must provide
at least $750,000 in coverage.
HHS said that about 95% of its
waivers went to plans sponsored by
employers. Usually, they are limited
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people with private health insurance,
HHS said.
Many Republicans have taken
issue with the waivers, saying they
demonstrate another of the intrinsic
aws in the health reform law.
OR CALL (877) 248-2360, ext. 2

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Payers & Providers OPINION Page 4

9-21:)!$6!;++1)!< Hospitals Should Open Up on Errors


'(&)*+!,!'*-./0)*+!/+!=1%2/+3)0!
A Closed Attitude Ensures They Will Stubbornly Persist
).)*&!>31*+0(&!%&!'(&)*+!,!
'*-./0)*+!'1%2/+3/456!778?!@4!(441(2!
/40/./01(2!+1%+A*/=B/-4!/+!C<<!(!&)(*! A few weeks ago, I was mining a trove of state average. It was the single hospital described
DC$E<!/4!%12F!1=!B-!$#!+1%+A*/%)*+G?! publicly available data for a presentation I was as “signicantly worse” on that metric. Loyola,
;B!/+!0)2/.)*)0!%&!)H:(/2!(+!(!'IJ! to give looking at quality of care at some of the the U of C, and the U of I were “signicantly
(BB(A3:)4B6!-*!(+!(4!)2)AB*-4/A! Chicago region’s marquee hospitals. I worse” on the infections. The U of C ranked
4)K+2)BB)*? discovered there were warning ags at several signicantly worse on sepsis, where Stroger,
institutions, including the University of incidentally, came out “signicantly better.”
@22!(0.)*B/+/456!+1%+A*/%)*!(40!)0/B-*/(2! Chicago Medical Center. These statistics demonstrate how seriously a
/4L1/*/)+M Imagine my regret to hear, just a few days hospital's managers and clinicians are working
later, that one of the city’s together to reduce serious safety
DNOOG!"ENH"PQ#
/4R-S=(&)*+(40=*-./0)*+?A-: leading business gures and problems. The best efforts of
philanthropists, James Tyree, caring and hardworking
T(/2/45!(00*)++M was killed by a medical error in individuals won't be successful
that same hospital – a hospital unless systematic error
N$N!U?!V-22&K--0!W(&6!X1/B)!Y
Y1*%(4F6!8@!<$Z#Z on whose board he had served. prevention is built into a
The cause was an air embolism hospital’s processes as part of its
in a dialysis catheter, during a culture. A government study
W)%+/B) hospitalization to treat his showed nearly one-third of
KKK?=(&)*+(40=*-./0)*+?A-: cancer. (Payers & Providers, 22 hospitalized Medicare patients
J(A)%--F March 2011, p. 3) suffer some sort of adverse event.
KKK?R(A)%--F?A-:[=(&)*+=*-./0)*+ Great doctoring and great It’s possible that the hospitals that
>K/BB)* medical safety are not the same apparently had safety issues in
KKK?BK/BB)*?A-:[=(&)*+=*-./0)*+ thing. The University of Chicago 2009, when these data were
has a reputation for outstanding gathered, have completely solved
\0/B-*/(2!Y-(*0 cancer care. That's why Tyree them. If so, there's nothing
had a good prognosis when he stopping those institutions from
entered the hospital and why his By Michael Millenson sharing detailed clinical
Y*/(4!]?!X/2.)*+B)/46!T?I? death was so disturbing to his information with the public.
X)4/-*!9/A)!'*)+/0)4B
family and friends. Most important, there's nothing preventing
>3)!8(:0)4!^*-1=
How likely is the average patient to be hospitals, with the consent of an individual
_-++!@?!X2-BB)46!T?I? harmed at Chicago-area hospitals? If national patient's family, from opening up the results of
`2)/4!X2-BB)4!,!J*)4A3 gures apply to our area, at least 10 people die error investigations instead of hiding behind legal
83/A(5- from preventable medical mistakes in local barriers. Most patients don't want to sue. They
hospitals every day and another 100 are only want fair compensation, compassion and the
T/A3()2!7?!T/22)4+-4 injured. Few of these deaths make news. But knowledge that someone else won't be harmed
'*)+/0)4B Tyree was a prominent citizen, his death was again in the same way. That's why local hospitals
V)(2B3!a1(2/B&!@0./+-*+!778 reviewed by the medical examiner and the should invite patient representatives to serve on
V/532(40!'(*F6!;22? results were released by his family. hospital safety committees, as has become
To nd out more about preventable medical common in Massachusetts and elsewhere.
'1%2/+3)* mistakes, I went to a site intended for health- Tyree was a blue-collar guy who worked hard
care professionals, whynotthebest.org. Its to become the much-admired CEO of a successful
_-4!X3/4F:(4 sponsor, the Commonwealth Fund, wants to Chicago nancial company. It's impossible for an
motivate hospitals to improve care. outsider to know whether his death was
=1%2/+3)*S=(&)*+(40=*-./0)*+?A-:
I looked at one set of measures for eight of preventable, even if many air embolisms are. But
the area's best-known hospitals — Lutheran healthcare insiders need to start sharing the kind
\0/B-* General (agship of the Advocate system); of information that will help prevent people like
I14A(4!T--*) Evanston (agship of NorthShore University); Jim Tyree from dying too young. We are all
0:--*)S=(&)*+(40=*-./0)*+?A-: the academic medical centers of Loyola, vulnerable to medical error, and we must all start
Northwestern, Rush, the U. of C. and the to demand accountability from our hospitals and
;R!&-1!0-!4-B!*)A)/.)!&-1*!/++1)!-R!'(&)*+!,! University of Illinois; and Stroger, Cook doctors.
'*-./0)*+!%&!$!'?T??!-4!>1)+0(&6!=2)(+)!A(22! County's public hospital.
DNOOG"ENH"PQ#?
The problem areas I picked out were Michael Millenson is president of Health
decubitous ulcers, catheter and IV line Quality Advisers in Highland Park, Ill. He is a
infections, and post-operative sepsis. Loyola member of the Payers & Providers editorial
had nine times the rate of bedsores than the board.

!!!"#$$!%&!'(&)*+!,!'*-./0)*+!'1%2/+3/456!778
Payers & Providers MARKETPLACE/EMPLOYMENT Page 5

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*New England Journal of Medicine, 2004.

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Payers & Providers MARKETPLACE/EMPLOYMENT Page 6

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