Commonwealth v. UPMC, Appeal of: UPMC

97 (citations omitted), I prudent think it trial allow the court to of this light compli address issue matter’s tortuous and The has history. spoken degree cated been of to some issue in this I a more appeal, prudent but believe course would be Burroughs, Kurowksi v. remand for that determination. Cf. 611, (Pa.Super.2010) (noting 994 A.2d 617 trial respon court’s determine, instance, sibility first whether statement Newspa Weber v. Lancaster being defamatory); of capable Inc., (“The pers, (Pa.Super.2005) A.2d classification private of a a plaintiff public figure question law initially by carefully be determined the trial court and then (citation court.”) appellate scrutinized an and internal omitted). Otherwise, join marks I quotation Majority’s opinion full. joins BAER this concurring dissenting opinion.

Justice

129A.3d 441 KANE, Pennsylvania, by Kathleen COMMONWEALTH G. Attorney General; Insurance, by Pennsylvania Department of Miller, Commissioner; Pennsylvania D. Teresa Insurance Health, by Murphy, Secretary Department Dr. Karen Health

v. UPMC, Corp.; Nonprofit UPE, A a/k/a Health, Corp., Nonprofit Highmark, A

Inc., Nonprofit Corp. A UPMC, Corp. Appeal Nonprofit A Supreme Pennsylvania. Court

Argued 6,Oct. 2015. Nov. Decided Cozen, Bayer, Esq., Jared Dimock A. Stephen Stephen Miller, O’Rourke, Aaron Esq., Esq., Thomas Michael Cozen O’Connor, Jr., Leon Philadelphia, Esq., F. DeJulius S. Rebe- Kcehowski, Pohl, kah Byers Esq., Esq., Jones Paul Michael Jr., UPMC, for McGough Esq., Thomas Day, Pittsburgh, W. UPMC. Booker, Esq., Joseph Filloy, Esq., Paige

Daniel I. Daniel Forster, Watterson, Jeffrey Kim M. Hennessey Esq., Esq., Weimer, Esq., Pittsburgh, Eastgate, Esq., Paul Gavin Michael Kirk, LLP, Esq., Highmark Smith Thomas L. Van Reed Health, Health, Inc., UPE. Highmark, for Counsel, Concannon, Esq., Office of General Sean Martin Daubert, of In- Esq., Pennsylvania Department Amy Griffith III, surance, Knorr Office of Esq., Pennsylvania John G. Dan- General, Harrisburg, Zych, Esq., Edward John Attorney ville, Department, Insurance for Pennsylvania Department Insurance. Counsel, Concannon, Esq., Martin Office General

Sean III, Esq., Pennsylvania Attorney John G. Knorr Office General, of Health. Harrisburg, Department III, III, Esq., A. Donahue John Knorr Mark Esq.,

James G. Pacella, Wertz, Tracy Wright Esq., Harrisburg, A. Neil Esq., Mara, Pennsylvania Attorney Office of Esq., Philadelphia, General, for of Pennsylvania. III, Pacella, Esq., Tracy

James A. Donahue Mark A. Esq., Wertz, Mara, Wright Esq., Harrisburg, Neil Philadel- Esq., Attorney General, phia, Pennsylvania Office Kathleen G. Kane. EAKIN, TODD,

SAYLOR, C.J., BAER, STEVENS, JJ.

OPINION Justice TODD. case, reviewing

In this our Court tasked with principally interpreting provision of the Commonwealth Court a order decree, negotiated by Attorney of a consent the Office of (“OAG”)1 of Pennsylvania approved by General the Com- acting parens patriae capacity 1. The OAG in this matter is in its Commonwealth, represent people the interests of the and in duty supervise execution of charitable OAG entities. The addi- tionally represents parties in- other Commonwealth which have been Court, UPMC, monwealth between Appellant nonprofit a corporation, Highmark,2 health care Appellee nonprofit insurance corporation, medical which establishes the obli- gations respect both certain health care plans serving children, vulnerable populations—i.e., the elder- ly, poor. Specifically, and the we consider whether the Com- erroneously monwealth Court interpreted this “vulnerable provision as a populations” creating obligation contractual for UPMC to treat all in Highmark’s “Medicare participants Plans,”3—for Highmark which and UPMC cur- rently provider have contracts which UPMC has indicated it will terminate as December 2015—as for “in-network” purposes determining it is charge rates permitted for these individuals and other medical physician, hospital, during services duration of the consent decree—until 2019.4 review,

After careful we affirm the order of the Common- finding wealth Court that the clause requires the consent decree UPMC to in a “be contract” with decree, thus, for Highmark and, the duration of the consent physicians, hospitals, UPMC and other services shall be proceedings Pennsylva- in the in volved the Commonwealth Court—the Department Department nia of Insurance and the of Health. For ease discussion, we, therefore, collectively parties will refer to all of these as Commonwealth.” "the "Highmark” corporate (“Highmark 2. consists of two entities—UPE Health”) entities, “Highmark will and Inc.” We refer to both as do the Court, parties by designation the Commonwealth the unified "Highmark.” herein, explained fully plans 3. As more such are as classified "Medicare government pays plans private Part C” under which the federal a health Highmark per insurer such as a fixed amount enrollee for the insurer to pay providers providing (inpatient) health care for Medicare Part A (outpatient) BPart medical services to the enrollee. greater length, infra, As 4. discussed at under the consent decrees at case, provider in this a health who is "in- issue care considered plan with health insurer the health network” a has contracted with rate, negotiated plan plan treat the members at a health The members are, consequently, charged plan’s co-pay, no more than co-insur- deductible, negotiated paid by ance or rate which is the health plan provider payment to the health to be in full for the deemed provider has rendered. medical services as for Medi- participants “in-network” treated subject to Advantage plans provider are contracts care which and UPMC set be terminated between also affirm portion December We judicial requiring approval the Commonwealth Court’s order changes relationships any further business between decree, the consent but governed these which portion for review the of the quash yet ripe as not order which request supplemental directs the OAG to file a relief compliance the consent effectuate decree. Background History

I. Procedural developed by As the Commonwealth the proceedings below, UPMC, incorporated nonprofit was in 1982 Law,5 our corporation Nonprofit Corporation under is the provider Pennsyl- dominant of health care services western vania, percent “medical-surgical occupying nearly and, County overall, of this Allegheny percent market” in 35.7 county in of region Pennsylva- market the entire western 29 Review, 6/27/14, for at nia. Petition 4. UPMC Commonwealth controlling holding also maintains a interest in an “insurance which includes the “UPMC Health Plan” which company” million in people Pennsylva- covers western approximately 2 Id. As Commonwealth, explained by nia. under this arrangement, “integrated UPMC an health de- operates care insurance, system” whereby entity provides one health livery and, also, delivers health care services through physicians, medical care facilities. Id. at other 6. hospitals, ancillary Highmark possesses controlling interest an insurance holding which two of company system its subsidiaries operate not-for-profit plans. health care One sub- insurance nonprofit hospital Blue Cross—is a sidiary—Highmark insur- plan, another—Highmark Blue Shield—is a ance nonprofit plan. health care insurance Court Opinion, Commonwealth Review, 6/27/14, at 3 n. Petition for Commonwealth 6/29/15, 3; sold, at com- Highmark’s plans health care insurance 5. of individuals, and, at time mercially, businesses §§ 5. 15 Pa.C.S. 5101-5997. matter,

filings were utilized by percent more of than people Pennsylvania region's western health care Review, market. 6/27/14, Commonwealth Petition for 5. at 2002, In UPMC entered into a agree- ten-year “provider ment” with Highmark under which it furnished health care on an in-patient services or out-patient of basis subscribers Highmark’s plans commercial insurance and billed Id, for specified, those services at negotiated rates. Under separate provider terms other agreements covering Highmark’s products, Medicare Advantage Highmark and mutually agreed that UPMC be would considered “in- network” for products. Stipulations those Between the Com- 1, UPMC, 5/27/15, However, monwealth and at in the Spring agree UPMC announced it would or to renew renegotiate these provider agreements Highmark, majority to expire 2012. Id. set were on June as Highmark’s UPMC cited its reason proposed affiliation Allegheny with the West Penn Health System, which would delivery system create another in com- integrated health care petition system. with the UPMC Petition 6/27/14, Review, at 5-6. The Commonwealth considered having these expiration agreements deleterious conse- quences Highmark’s plans health insurance members because, Commonwealth, according to the these members subjected “significantly higher would out-of-network charges they for their health care needs unless either switched away health provider their health care from UPMC their plan away from one the health insurers with contracted, Id. prices.” at higher which UPMC had albeit legislative hearings appoint- This to and the prospect led of Tom by May ment a mediator then-Govemor Corbett Agree- 2012. into Highmark UPMC and entered a “Mediated alia, inter provided, Highmark’s ment” that month which Advantage Medicare members would have access “in-network to physicians” all UPMC and until December hospitals 5/2/12,1. 2014. a Agreement, separate provi- Mediated Under sion of UPMC also “continue to agreement, agreed hospital physician pre- in-network services

provide rates for which Highmark plans ferred certain serve vulnera- Care, (sic), fair populations, specifically Special pa. care ble plans, CHIP and Issue for such time as Guaranteed these Id. by plans, Highmark.” Although continue be offered were, all, Advantage there eleven individual “Medicare Agreements”—each signed by Highmark, UPMC, Provider hospital system—UPMC, acting a in the UPMC on behalf hospitals, Highmark of all the individual entered into a global agreements amendment to all of the individual Agreement. the terms the Mediated incorporated This global provided Highmark amendment also that UPMC and “negotiate would rates and terms for continued to certain services on an in-network member access UPMC upon Advantage termination of the basis effective certain Agreements, including Psychiatric, Provider Western services, Bedford, oncological and UPMC Northwest.” Agreements, Provider Amendment 9/13/12, Additionally, global at 2. specified amendment agreements could not be terminated De- provider before 31, 2014, that, subsequently, provider agree- cember each from automatically year year, ment would renew unless no party provided April either notice termination later than 6/29/15, If year. Opinion, of that Commonwealth Court at 6. termination, party provided a notice then the termi- such year nation effective as the end the calendar would be Id. covered the contract. 29, 2013, April Pennsylvania Department

On Insurance Allegheny affiliation with the Penn approved Highmark’s West System, contingent Highmark fulfilling Health a number of conditions, Highmark’s obligation of which included file one Department formal transition with the Insurance if it plan negotiate provider agreements new and UPMC could Order, 4/29/13, at 22. July Department Insurance Thereafter, already strained relations between UPMC and precipitously. According the Com- Highmark deteriorated monwealth, 12, 2013, on June because now viewed provider, as a health care of Di- competing UPMC’s Board

107 in it passed forego ‘any rectors a resolution which resolved “to contracts, existing any of the or new commercial extension contracts to providing Highmark any with in-network access in Penn- hospitals physicians current UPMC Southwestern UPMC, sylvania beyond Pittsburgh Hospital Children’s Clinic, Northwest, Psychiatric Western Institute and UPMC UPMC Bedford and certain other services ... as Memorial ” in the Peti- specified Agreement.’ Mediated Review, 6/27/14, that, tion for at 8. The Commonwealth noted matters, rather than to over attempting negotiate these in dispute “engaged their extensive and escalated costly lobbying, advertising campaigns, litigation which ... to the confusion and public’s contributed misunderstand- ing.” Id. at 10.

In to UPMC and informed February Highmark wrote it amount it for paying UPMC that had observed that the was of oncology drugs administration under the fee schedules it for previously negotiated had its commercial and Medicare had, view, Advantage products dramatically, its increased Highmark hospitals’ billing which to for the admin- attributed drugs patients outpatient istration of to cancer as an such service, though drugs physi- even were administered letter, that, cian’s office. In the informed UPMC Highmark provider agree- effective 2014—the date which the April revising outpatient ments were to renew—it would be its set fee schedule under its commercial and Medicare it for the policy paid reduce the fees administration drugs objections customers, public offi- due raised cials, community billing and other members to these UPMC, practices. Highmark Letter 2/25/14. claims that disputed Highmark’s provider agree- fashion, it to permitted unilaterally change

ments rates action to any agreements but did take terminate those 9, 2014, 1 automatic April May renewal date. On UPMC served with a demand arbitration which regarding oncology billing “included the issues disputed Highmark’s unilateral rate reductions.” Declaration of W. Jr., McGough, Thomas Answer Exhibit Supreme Emergency Supersedeas Court Application ¶24. Subsequently, on June Pennsylvania, 13, 2014, of claims to the a statement American UPMC submitted (“AHLA”) arbitrated, Association Health Law agreements hospitals, four originally involving covered agreements in 2014 to involv- August was amended cover later ing hospitals.6 nine additional clear that

By High- after it became UPMC June and 2014, to going negotiate not to a continuation mark were be able agreements own, the on their the Commonwealth provider Court, in filed for the Commonwealth assert- a review petition Highmark had the ing that and UPMC breached both which, contended, to the Agreement, Mediated Commonwealth large third-party beneficiary. specific a As public at was alia, relief, that the Com- requested, the Commonwealth inter to public third-party Court monwealth find beneficia- and, also, variety to into a ry require parties enter regarding to issues access to agreements disputed settle medi- by Highmark cal after care UPMC facilities subscribers expiration provider agreements December 31, 2014. matter, Specifically, as relevant to the instant the Common- requested wealth that the court: Require respondents agreement reach an hospital, physician follow-up Highmark and services members part populations, including, who are but 2015, 6, proceedings 6. These were on November arbitration concluded panel ruling justified with the arbitration was not making adjustments unilateral its fee schedule the individual under UPMC, provider agreements origi commercial between 2012, nally expire set in June of or under the 2012 Mediated Agreement agreements which extended those individual until December UPMC, al., 2014. See In the Matter between et v. Arbitration al., (11/6/15). Highmark, AAA UPMC et 01-14-002-1500 has No. filed 2501(a) application pursuant requesting an that we Pa.R.A.P. consid supplemental authority. grant application; er this decision as We ruling purport however this UPMC’s does not address duties case, nor, explain infra, under the Decree at issue in as we Consent this Highmark’s claiming unilaterally did that it actions was entitled paid entry oncology prior reduce the rates it obligations allow UPMC to under the Decree avoid vulnera populations’ will not ble clause of the Consent address it we opinion. this age limited to consumers 65 and or eligible older who are covered health Advantage/MediGap Medicare/Medieare plans; consumers eligible by CHIP, who are covered Medicaid, managed fee-for-service Medicaid health plans days within 30 of this and, failing Court’s order such agreement, an last impose best offer arbitration. Review, 6/27/14,

Commonwealth Petition for at 13.7 Thereafter, supervised the Commonwealth Court the Com- monwealth’s efforts to agreement mediate an which would accomplish objective, as well as settle the other outstand- ing disputed issues parties. between the As the Common- noted, wealth Court because there was such intense acrimony parties, they negotiate other, between the would not each nor together sit room during process. the same Com- monwealth Opinion, 6/29/15, Court at Consequently, attor- neys representing the were forced to engage what the diplomacy, OAG termed “shuttle” Brief of Attorney whereby they ferry General at would offers and parties. counteroffers back and forth Even- between tually, the Commonwealth a comprehensive agree- secured ment parties decree, but, between the the form of a consent parties sign document, because the refused a common two final separate consent decrees for prepared—one High- were Decrees”). mark and for (collectively, one UPMC the “Consent Each party’s decree has identical for fact provisions except that Highmark’s Consent requires Highmark Decree com- ply terms, with its and Consent Decree requires UPMC’s comply Decree, UPMC to its terms. Highmark Consent 6/27/15, 6; at Decree, 6/27/15, UPMC Consent at 6. The signatories are decrees. both

Inasmuch present dispute as the involves the Common- wealth interpretation Court’s UPMC’s Consent we discussion, focus our as do the Commonwealth Court and the parties, obligations which UPMC assumed its under requested parties’ The 7. Commonwealth also identical relief for the alleged provisions Pennsylvania Company violation of Insurance Law, 991.2111(1) 2111(4), through ongoing § P.S. and their contrac- dispute. tual lio

decree; however, Highmark’s because its decree and at respects, including provisions in all material identical governing Populations, appeal—those Vulnerable issue care, for the manner defining providing In-Network for are to set In-Network care the duration rates discussion, shall refer of the Consent Decree—for ease we The designation “Consent Decree.” to UPMC’s decree at the Populations” clause the Consent Decree “Vulnerable provides: of this dispute heart Populations—[1] UPMC and Vulnerable (i) include: con-

mutually agree eligible 65 or older who are or covered age sumers (ii) Medicare, Medigap Advantage, plans, health (iii) Medicaid and/or (iv) CHIP. ^[2] With respect High- UPMC shall contin- populations, mark’s covered vulnerable for all of ue to contract with in-network rates physician appropriate continuity care hospital, CHIP, Highmark Signature Medigap services long Highmark commercial retiree carve out as does make unilateral material changes to these programs. ^[3] treat all Medicare consumers as UPMC shall they have regardless In-Network whether Medicare as their primary secondary insurance. ^[4] UPMC reserves from if right arrangements Highmark to withdraw these position authority should take the has the to revise payable arrangements the rates and fees under those unilat- erally materially.8 IV(A)(2).

§ following The Decree “In-Network” defines fashion: provider

I. means where a health care has “In-Network” provide specified a Health Plan to services contracted with for at a rate to treat the Health negotiated reimbursement charged Plan’s members. The shall be no more member or co-pay, charged by than the co-insurance deductible his infra, meaning operation 8. As of these numbered detailed four parties appeal focus of contentions in this we sentences are the usage. parties’ them have numbered consistent with Plan, or her shall not Health the member be refused for the in contract specified treatment services based Plan negotiated paid his her Health and the under rate the contract Plan by Health the member shall be in for payment specified full services. II(I).9 Decree, §

UPMC Consent Further, following the Consent Decree contains the provi- sions how for explaining rates medical services would be if agreement determined could reach on this subject after faith good negotiations:

C. Miscellaneous Terms * * *

(1)

a. Rates 31, 2015, January 1, i. For 2015 to period, December for in rates all In-Network services covered this Consent for except currently being those rates arbitrated shall last Highmark, mutually UPMC and revert to the agreed Highmark rates or fees UPMC and upon (MBI) applicable ap- medical market basket index increase January 1, 2015. plied currently arbitrated, For being

ii. rates the event Highmark the current arbitration between UPMC and finds UPMC, in favor of then the rates fees under the will Consent Decree revert the rates effect before as of April the arbitral award and shall date 31, 2015. If place through remain in December conse award, quence Highmark of the arbitral owes UPMC pay shall UPMC underpayments, appropriate award, If as a consequence interest. arbitral overpayments, pay High- owes UPMC shall mark If an is not appropriate interest. arbitral award January 1, Highmark shall decided increase before Highmark’s payments by one-half the difference between 1, 2014 schedule and its rate schedule effect before April II(J) provision Highmark’s Agreement. 9. This 1, 31, 1, period January 2014 for the 2015 to December April 2015.[10] 1, beginning January expira- For 2016 to the period

iii. expiration agree- of the Decree of any tion Consent and for all In-Network Highmark ments between UPMC Services, later, the rates whichever is the rates shall be UPMC, or mutually agreed by Highmark to UPMC and single binding shall in a last offer Highmark engage best to as to rates Decem- any dispute arbitration resolve after C(2) 31, in paragraph ber 2015 as set forth below. IV(C)(1). Decree, speci § The Consent Decree also Consent any “[disputed to fied that the Commonwealth was mediate forth in Decree and related [the] terms set Consent and, and unrelated to rate if Consent Decree reimbursement” unsuccessful, dispute that was then submitted was be IV(C)(1)(b). Id. at § Common binding arbitration. The given “jurisdiction” wealth also was exclusive enforce IV(C)(4). the decree. Id. §

Additionally, provides the Consent Decree that the Com- for jurisdiction, monwealth Court is to retain the duration existence, any party apply “to to [the enable Common- further may wealth such orders and directions as Court] necessary appropriate interpretation, modifica- tion, and enforcement this Consent Decree.” Consent IV(C)(11). Judge Pellegrini § of the Com- President Court entered both decrees as orders of court on monwealth 2, 2014, July they July remain in effect until 2019. 29, 2014, August Highmark plan On its transition with filed Pennsylvania Department provided, Insurance which aMct) inter Highmark “[u]nder the Consent Decrees that UPMC continue to agreed UPMC would contract in-network for senior at rates care.” 8/29/14, Plan, Transition respect 12. With “[c]urrent Products,” Advantage plan High- described of the effect of the interplay mark’s view between Consent discussed, infra, recently provisions con- 10. As these two refer to the proceeding progress AHLA arbitration which was at the time cluded entry of the Consent Decree. Decrees products: and these Decrees, “[u]nder seniors in the current broad network products will continue to have in-network access to facilities and physicians after December cur- The rent broad contracts with network UPMC extend until Decem- 31, 2015 annually ber and renew unless either party provides prior notice.” Id. 2014, 3, September Highmark

On a commenced civil lawsuit UPMC, against as eight as well individual hospitals UPMC and three physician group practices, in the Court of Common (the of Allegheny lawsuit”). Pleas County “Allegheny County alleged This suit engaged that UPMC had in billing unlawful practices in beginning August 2010 until the time of the suit

by changing the in which billing manner for oncology supplies and services as if on they outpatient were a hospital delivered basis, when, were, according Highmark, they to in actuality, at a physician’s delivered office previously as was the estab- practice. Complaint, 9/3/14, lished at 4. Highmark also al- in leged the suit that “begun transferring UPMC had billing oncology in among hospitals services UPMC order to further their profits.” Highmark increase and Id. at 5. prices hospital contended these practices “breached terms contracts UPMC Hospitals UPMC executed with Highmark.” 4-5. in Id. at UPMC its allegations denied these to Highmark’s complaint. answer

Additionally, Highmark complaint in recited this the circum- surrounding 2014, stances April 1, of the fee adjustment schedule for of the of oncology reimbursement administration drugs. thereto, Highmark Related was asserted that it “the custom and practice Agreements High- under the UPMC mark ... make to changes unilateral the fee schedules to changes reflect in without prior approval conditions” UPMC; that UPMC Highmark’s did not limit Agreements adjust schedules; ability Highmark to these fee reserved right adjust time,” the fee any schedules and rates “at and, 2013, when it so prior acquiesced had done UPMC had relief, Highmark its action. Id. 43^4. As a sought 1, declaratory judgment “April that its adjustments v-HT—t Subject under the Oncology

the fee schedule rates for Services under Agreements proper appropriate each UPMC were Id. at 45. In an respective Agreements.” UPMC 21, 2014, Highmark on complaint filed November amended unjust declaratory this action count with a claim replaced it paid on the amount had previously enrichment based in the alleged overbilling UPMC administration drugs.11 oncology 2014, Highmark began marketing September

Later Blue, Advantage program Community known as new Medicare join UPMC to as an in-network previously it had invited which As February but UPMC had declined. provider provider UPMC was not considered an in-network under Blue, September 25, it Community wrote that it offering informed considered Decree a breach the Consent viewed be physicians “all hospitals network requiring populations’ by Highmark, including for the served ‘vulnerable to High- Letter subscribers.” UPMC mark, 9/26/14. objections, being aware UPMC’s Com-

After made for petition contempt against Highmark monwealth filed alia, Highmark that had breached the vul- contending, inter Decree, which, of its Consent clause populations nerable above, to that contained UPMC’s discussed identical to assigned Judge Pellegrini matter was decree. The rejected being unsup- he this contention as disposition, and of the plain language the terms vulnerable ported by clause: populations populations in the text of the [vulnerable clause]

Nowhere requirement Highmark is there a include provision preliminary objections complaint, filed to this 11. UPMC thereafter compel accompanied by to arbitration based its a motion on contention subject mandatory Highmark's were arbitration claims to under Highmark provisions response, In arbitration in the contracts at issue. petition stay The trial court overruled UPMC’s filed a to arbitration. granted Highmark's petition. preliminary objections and UPMC subse- decision, appeal pending quently appealed this and that remains Superior Court. Further, UPMC in all of its Medicare-Advantage products. populations while to requires [the clause] vulnerable continue contracting Highmark in-network rates for CHIP, Highmark Signature Medigap, and commercial it programs, impose retiree carve-out does not such require- regard Community ments with to the Program Blue products. Although future [vulnerable requires clause] UPMC to ‘treat’ all in-network, impose beneficiaries as it does not any corre- sponding requirement on to in- provide such care, unwilling network and we are such a impose re- quirement where none exists. 10/30/14, Opinion,

Commonwealth Court at 17-18. Thereafter, disputes” “serial continued between over compliance with the decrees which the Commonwealth mediate, to the attempted pursuant Decrees, but no avail. Petition to Enforce Consent 4/27/15, filed at 2-3. 20, 2015,

On March UPMC informed and the Pennsylvania that it Department Insurance would terminate all of Advantage hospital its Medicare contracts on December 31, 2015 Highmark’s assertion in its Allegheny based County it right change lawsuit that had the the rates under its contracts with UPMC for the administration of the oncolo- gy drugs overcharged claim that UPMC had it for that August and other medical services from 2010 forward. language UPMC claimed that the popula- tions gave right engage clause such unilateral termination. In response, Commonwealth filed with the Commonwealth Court a motion enforce the Consent De- crees which genesis litigation spawning was the instant appeal. 27, 2015,

On May Judge Pellegrini conducted a ten-hour on this motion. In hearing order determine UPMC’s obligations respect Highmark’s Advantage with Medicare programs, Judge Pellegrini testimony received extensive de- scribing general the characteristics and function of Medicare

ZO T—Í seniors, health Advantage delivering in care and programs specific Highmark Advantage of coverage the the Medicare In he from regard, at issue in this case. heard programs Sampson, Pennsylvania is the Director of the Darlene who Pennsylvania’s Apprise Program, of state Department Aging’s program, capacity she health assistance insurance educating for beneficiaries and as- responsible was Medicare understanding coverage. Hear- sisting them Medicare N.T. 5/27/15, 41, Sampson the structure at described ing, 43. of four Program consisting parts—A federal Medicare coverage A ser- through providing hospital D—with Part vices, coverage outpatient physician Part B and providing services, Medicare Pro- establishing Advantage Part C Id. D grams, providing prescription drug coverage. Part and that, if Sampson explained at 53. an individual is enrolled Advantage, part Medicare he she is still considered program federal Medicare and receives Part Medicare B through A and benefits Advantage program. Medicare Id. at 66. that Sampson principal testified difference A B programs between traditional Medicare Part and and is in Advantage plans Medicare how administered: an Part A B, when individual receives Medicare and government manages the of the Medi- federal administration benefits, Advantage program care whereas a Medicare is run by a private company insurance which contracts with the (the government federal Centers for Medicare and Medicaid (“CMS”)), company manages Services and the insurance Id. at claims. pays administration Medicare benefits and 53-54. also Gray—Highmark’s

The Commonwealth called Barbara Senior is responsible President Senior Markets—who Vice Advantage for Highmark’s Medigap Medicare and insurance products. agreed Sampson’s description She “a Advantage program, type Medicare that opining “if product,” you’re still afforded all the you’re you’re covered Medicare Medicare.” Id. ... of rights privileges protections further those are enrolled in Gray who testified Advantage plans Medicare, Medicare are of members and that such Advantage programs Medicare required provide, minimum, aat provided same benefit amounts which are that, Medicare Parts A and B. Gray frequently, noted Medicare Advantage programs greater furnished a monetary enrollee; value to an however, benefit Advantage Medicare programs also restrict a of participant’s choice or hospital doctor those who are of part specified by networks Id. at 108-09. insurer administering plan.12 Gray noted that types offered two Medicare Advantage plans which had UPMC net- hospitals their Blue, works: Security pays which is an HMO that no out-of- benefits, Blue, network is and Freedom which a Preferred (“PPO”) Organization Provider offering some out-of-network coverage under which pay members the difference between the, lower, covered amount and cost of treatment.13 actual Id. related that Gray plans automatically such at renew 98. each year plan participant unless the takes steps affirmative them, change and she that approximately estimated there are 145,000 current to both Id. at 103. plans. subscribers matter,

On this presented testimony only it hearing—Shawn witness called at the Bishop, Maree owner of a Washington consulting D.C. firm which based provides representation organizations companies and which Advantage plans, companies perform use Medicare Id. at 318. Bishop, who plans. outsourced services for such qualified expert was as an on her consultant based work a prior government, including service the federal CMS, opined that, while it Advantage was true part was program, program the Medicare was a distinct governed regulations, different statutes and and that offering Advantage plans required 12. The insurer such regarding plan approval, submit information to CMS for initial detailing changes. plans policy annual bids and rate Such must de- physicians hospitals, part plan’s scribe the which will be 16; 6/29/15, Opinion, Hearing, network. Commonwealth Court at N.T. 5/27/15, at 83-84. Community continues to offer Blue which does not in- hospitals. clude UPMC within its network not have person could traditional Medicare and Medicare the same time. Id. at 823-24. She testified participat- she had not encountered the terms “Medicare ing regulations, consumers” the Medicare statutes but Medicare, that this meant traditional not Medi- opined phrase Advantage, requirement care and that she viewed the populations requiring participat- clause “Medicare vulnerable consumers” to as “in-network” to refer to ing be treated product part commercial insurance which is not the Medi- 328-29, that, at Bishop acknowledged care Id. 331. program. Advantage, under Medicare the reimbursement rates are ne- gotiated directly provider; between the insurer and the whereas, B, Part A under Medicare and CMS sets the reim- Hence, if a to provider participate bursement rates. chooses A B program, in the Medicare Part and those are the rates receives, it no negotiation. which and there is Id. at 359. witnesses—Sampson, Gray, of these or Bishop—par- None in ticipated negotiation of the Consent Decree. only The in to witness who that and testified as participated process, of its surrounding language, the circumstances the choice was Rice-Johnson, the President of tes- Highmark. Deborah She that in populations tified the vulnerable clause was structured the manner in which Highmark proposed including had it—as Advantage of all Medicare members within the definition so participating they Medicare consumers that would be treat- ed in-network. Id. at 208. President Rice-Johnson testified subject that populations vulnerable clause was the back forth negotiations parties, extensive and between that the second sentence of that clause originally had included Advantage, that Highmark requested pro- Medicare but from that gram Highmark deleted sentence because want- protected to ensure that it was if it offered other ed Medicare Advantage programs Community such as its Blue program. 210-11, 215. Id. Rice-Johnson indicated her under- standing of the term participating “Medicare consumers” during sentence it negotiations third was that included i.e., Highmark’s members, all of those of its custom- Highmark, ers in Medicare contracts with and not those Parts A forB, individuals enrolled Medicare has no contractual relationship. Id. at view, Consequently, 274-75. her because the third sen- tence clause obligated “In-Network,” all treat Medicare consumers as and the Consent Decree further as defined “In-Network” when a health “has provider care contracted” with the insurer provide rates, health care at negotiated services this sen- required tence UPMC be contract 215, 270, duration the Consent Decree. Id. at 273-74. Rice- that, Johnson further testified the term because “In-Network” rates, to negotiated refers government because the does B, negotiate rates Part A and this term has A meaning no Medicare Part and B. Id. applied at 273- Rice-Johnson regarding impact also testified lawsuit. Allegheny County She claimed that complaint 14, 2014, of time it period prior addressed March not an change required was effort the rates that would be January 1, to pay under Medicare from forward, by binding as such rates would be set arbitra- tion terms of under the the Consent noted that Decree. She Highmark only change had claimed that it had fee right the 2014, provider agreements schedules under the April when agreements changed those were renewed with fee sched- those ules, that took it Highmark position but she denied the that right change the such rates the had under Medicare Advan- during the term of tage contracts the Consent Decree. She that Highmark limiting testified viewed the Consent Decree as ability any to make further such “Once we changes: Decree, into arrangement entered the with the Consent that ability during our to do so. of the period limited So the forward, they Consent not unless change Decree we will rates agreed upon through are arbitration.” Id. mutually agreed stated, at 186. further we Consent “[o]nce She entered into the agreed change we not fee until we would schedules the Rice- end that Consent Decree.” Id. 198. President Johnson also that Highmark related considered the arbitration in the Decree as the preserving right

clause question and UPMC to the of whether Highmark arbitrate Highmark change oncology was entitled make the the fee at 221, 2014. Id. 256-57. schedules 2015, May 29, the on the days hearing, Two after based filings parties evidence responses presented hearing, Judge Pellegrini granting at the issued an order Commonwealth’s Motion to Enforce the Decree in which he following findings parties: made the directives to the

ORDER WHEREAS, parallel consent decrees entered into only with the at issue in this matter;

WHEREAS, I Advantage participants that Medicare find are included definition of “Medicare participating within the consumers” sentence Popula- third Vulnerable decree, paragraph tions’ UPMC’s consent UPMC consent IV(A)(2); § decree

WHEREAS, I that not position find did take the authority unilaterally had the revise the rates 27, fees UPMC after June payable date executed, not any consent decrees were and did revise rates UPMC; paid to

WHEREAS, I find did violate the fourth Populations’ paragraph sentence of Vulnerable IV(A)(2); § consent decrees. UPMC consent decree See IV(C)(l)(a)(ii); § see also Id. NOW, May, upon

AND this 29th consider- day ation of the Commonwealth’s Motion Enforce Consent Compel Decrees and and Respondents’ replies Arbitration thereto, 27, presented hearing May the evidence at the on 2015, I findings made, and the have the Common- Motion is granted. wealth’s

It is further ordered that: Respondent High-

1. in a contract shall be with Highmark, (collectively, Highmark) mark Health Inc. provider and be an in-network for for hospitals, Plans and other ser- physicians, vices for the term of the consent decrees.

2. If for negotiate pay- are unable terms by Highmark ment owed those entities or other terms and conditions the Plans: 1, 2015, By Respondents joint

A. July shall submit a identifying statement all remaining and issues unresolved to be pursuant UPMC-Highmark determined Joint Plan for Offer Single Last Best under Con- Arbitration sent Decrees entered separately with the Commonwealth Pennsylvania approved by as this November Court’s 24, 2014 Order. date,

B. By Respondents the same shall select an arbitrator in a provided manner November Order, or the Court will select the arbitrator. Respondents complete C. shall the arbitration out- standing issues no identified September later than 2015. Respondents provide

D. shall Court and the this Com- monthly monwealth with status reports commencing 1, 2015, July continuing until the decision arbitration is rendered. shall Respondent any changes Neither make any

Plan, contract, or other relationship business between Inc., Highmark Health/Highmark, UPMC and no matter small, securing how without first from the Court. approval request supplemen- 4. The Commonwealth will file a tal compliance relief effectuate consent de- crees, to, changes corporate including but limited governance.

Order, 5/29/15, at 1-3. order, opinion accompanying Judge Pellegrini

In his explained interpretation his third of the vul- sentence establishing duty part clause on the nerable to treat customers as “in-network” for Decree:14 the duration of the Consent participating I that the ‘Medicare consum- disagree phrase interpreted excluding in the third clause must as ers’ be Doubtlessly, as the Advantage] participants. tes- [Medicare establishes, timony significant there are similarities and Highmark’s Advantage] Plan [Medicare differences between however, original Notably, Medicare. the consent de- not provision cree does limit UPMC’s of in-network service rather, that participants, provides to ‘Medicare’ but such ‘all participating services must to Medicare provided be consumers,’ encompasses Advantage] par- [Medicare which to limit ticipants. duty Had the intended UPMC’s drafters give only participants, to treatment to Medicare in-network it easily could have stated ‘Medicare’ instead ‘Medicare as it does in first sentence. participating consumers’ However, the groups together first sentence Medicare and participants, reap- and this Advantage] grouping [Medicare as the ‘Medicare consumers’ in pears phrase participating if I Critically, third sentence. construe the third sen- apply only participants, provision Medicare tence original contract purport would establish via Yet, participants’ rights access UPMC. in-network rates are parties agree exclusively by these set CMS Therefore, contract. abrogated by private cannot sentence, reading provision UPMC’s of the third under already-existing duty forth UPMC’s to treat Medicare sets in-network, best, as it participants rendering superfluous at rates, purports negotiate and insofar it the CMS as opinion, Judge Pellegrini 14. In his also second found sentence populations clause "extends UPMC’sin-network con- Plan,” tracting Advantage] to the [Medicare duties 6/29/15, 27, however, Opinion, neither nor the Court present appeal. this contention in the Conse- Commonwealth advances explain, infra, quently, we for reasons we because consider UPMC’s obligations Highmark's to be estab- customers clause, lished the third sentence of the vulnerable relief, Judge Pellegrini granting cited in his order as the we basis Judge Pellegrini's analysis of the second need not address sentence. (See § ‘in- illegal. (H)(1)(defining UPMC consent decree network’)). In Opinion, making

Commonwealth Court at 27-28. 6/29/15, finding, Judge Pellegrini testimony did credit Bishop pertained phrase to the interpretation “Medicare consumers.” He noted that she was expert not an in field of contract interpretation, the that, she acknowledged experience her in the field Medicare, participating “Medicare consumer” was not a term of art that a acquired special meaning. had

In opinion, Judge Pellegrini rejected argu- his also UPMC’s ment that of this clause in prior interpretation his his October 30, 2014 opinion already question. this He rea- had decided construing Highmark’s obligation soned that he this was under UPMC’s; thus, control provision, question not it did not the UPMC’s this clause. out that in pointed duties under He the opinion he found that the third sentence of previous expressly clause, governs present the vulnerable “which the ‘requires participating to ‘treat’ all issue in-network,” a impose correspond- beneficiaries as but did ing obligation Opinion, on Court Highmark. Commonwealth contrast, that the By Judge Pellegrini at 29. found 6/29/15, UPMC’s duties the first present dispute only concerned under Nevertheless, of the clause. he consid- and third sentences consis- present interpretation prior ered his and his one recognize duty, “insofar as UPMC’s under the third tent both in- clause to consumers as participating treat all Medicare Moreover, observed, network.” Id. at 30. he instant “[t]he however, step defining farther opinion, goes ‘Medicare the [Medi- consumers’ include beneficiaries contracts.” Id. at 30. care Advantage] rejected Pellegrini argument UPMC’s Additionally, Judge that it to terminate the permitted was the fourth sentence of the vulnerable agreements popu- under Allegheny County lations clause due to the lawsuit. He found this specifically dispute that the Consent Decrees addressed IV(C)(l)(a)(ii) through the clause Section set arbitration forth above: dispute

There can be no that the referenced doubt section, being the rates at the time the arbitrated entered, oncology the rates. At consent decrees were were executed, decrees were initial time consent UPMC’s concerning oncology pending demand rates was arbitration Further, undisputed Highmark the AHLA. it is before April its revised rates on 2014. The [arbitra- effectuated Highmark makes that if provision above clear unsuc- tion] rates, concerning oncology cessful at arbitration Highmark’s revert in place must those before rates pay must interest unilateral revision outstanding amounts. Pellegrini provision that this must be Judge at 31. found

Id. population’s clause to together with construed resolve, intent that parties’ be able reflect through process, question whether was arbitration change oncology April fee schedules in entitled to allegation In UPMC’s in a motion for an emer- response to gency stay Court, Judge Pellegrini filed with our that had Pennsylva- Czar of himself “Health Care Western appointed order, the inclusion of 3 4 of his through paragraphs nia” and had Judge Pellegrini arrogated denied that he such plenary that authority. explained require He his order his did aspect relationship of of the every business between review UPMC, but, rather, only was confined and from precluding Highmark “altering and UPMC without court in- approval relationships and their contracts business that decrees, the of the over scope volve matters within consent jurisdiction.” Judge this retains Id. at 34-35. Court given this the fact that the Pellegrini appropriate, deemed nearly 180,000 Blue dispute current affected Cross subscrib- ers, that, view, given parties’ in his the contentious for history, ‘necessary appropriate “such a directive is the decrees, of consent particularly ... enforcement’ with who, regard testimony to the as the populations vulnerable established, ongoing are the true casualties of the dispute.” Id. at 35.

125 forAs the fourth of paragraph his order which instructs the request Commonwealth to file a supplemental relief order to compliance effectuate with the Consent in- cluding seeking changes governance, if corporate warrant- ed, he viewed that as consistent directive with both the Decrees, populations provision vulnerable of the Consent the other Consent provisions giving Decrees Common- power wealth enforcement and the Commonwealth Court con- tinuing jurisdiction to compliance effectuate with the decree. Moreover, he such action to consistent provi- deemed with Law, of Corporation sions the Non-Profit which place upon the director of of if corporations such the duties a trustee as charity 5547(a), § was not incorporated, Pa.C.S. of which allow the removal of directors such corporations, § Pa.C.S.

UPMC appealed Judge Pellegrini’s requested order and expedited importance review. Because of the resolution questions by to the appeal people raised granted Commonwealth affected this dispute, we In request. appeal, presents three issues our consideration:

1. Did the erroneously interpret Commonwealth Court [the the Common- clause] require Consent Decree to UPMC to “be in a wealth/UPMC contract as to Highmark” Advantage, with where plain language consent decree—as confirmed admissions, drafting history, parties’ prior and a inter- pretation provision by judge the same the same Court—preserves parties’ to ter- ability upon minate their contracts each proper notice? position” authority

2. Did “take the has to unilaterally materially revise the rates and fees payable Advantage under contracts with UPMC populations clause] under [the alia, Decrees—thereby triggering, Consent UPMC’s inter right Advantage provisions from withdraw Decrees—where, among things, Consent other both 126 that Judge Pellegrini High-

Commonwealth and admitted position? mark that had indeed taken process by Court violate due 3. Did the Commonwealth that no that ordering sweeping party requested, relief was Decrees, the Consent and that ex- expressly released authority? constitutional ceeded the Court’s consider these issues seriatim. Brief 5-6.15 UPMC at We II. Issue One High- first that the Commonwealth and argues UPMC have, mark since the time of the execution Consent through their actions that the vulnera demonstrated clause of the Decree it to ble allows Advantage any terminate its Medicare contracts at time. Specifically, Highmark acknowledged UPMC claims that right Advantage to terminate its Medicare contracts UPMC’s transition, Insurance plan Department in its filed with the when it current broad network contracts “[t]he admitted UPMC extend until 2015 and renew annu December ally provides unless either notice.” Brief party prior UPMC 1(a)). (citing Highmark Transition Plan at UPMC refers strategy by Highmark to an internal discussion Senior Vice President she the termi Gray impact which discussed UPMC, According nations would have on their business. Gray High- the fact that discussed this fact evidence of was mark’s had right belief UPMC execute such a termination. also from cites March letter Kirk, Legal Highmark, the Chief Officer Thomas Van to the UPMC, Legal McGough, Chief Officer Thomas agreed making changes to refrain from unilateral to rates and if agreed fees its Medicare contracts UPMC keep them in effect for the duration of the Consent Decree. claims,

UPMC also as evidence the Commonwealth’s possessed right belief that UPMC to terminate the Medi- jurisdiction appeal pursuant have over this from order below We 311(a)(4) (“An appeal may right be taken as of ... from ... Pa.R.A.P. denies, grants modify, An order that modifies or refuses continues continue, injunc- or refuses to or dissolves or refuses to dissolve an tion.”).

127 Advantage care that it agreements, when made the Common- wealth aware of intention to its terminate the Medicare Ad- contracts in fall of vantage the Commonwealth never Also, to letters. responded points prelimi- those UPMC to a nary press prepared by internal draft a release Insur- Department department’s ance which the press secretary Advantage stated that the Medicare contracts termi- could be at nated the end of 2015.

Turning language to the populations clause vulnerable itself, UPMC notes that Medicare is Advantage not contained within the enumerated list of set forth in programs the second sentence of that clause and that this purposeful omission was since wanted to its option introduce new Com- munity Blue HMO at the time it negotiating was the Consent Decree; hence, view, in UPMC’s compel sentence did not it to continue Medicare Advantage High- contracts with to points mark. UPMC the fact that the Consent Decree that it not to provides is be construed as a contract extension. 1(A)). at (quoting UPMC Brief Consent Decree at With respect to the third populations sentence vulnerable clause, it it argues appears throughout UPMC that did Decrees; thus, original of the negotiations contends any change phrase absence “Medicare parties’ give consumers” indicated the intent original meaning—i.e., that term its traditional Medicare as populations used the first sentence clause. vulnerable out that points Advantage UPMC Medicare and Medicare are and, sentence, in that if separately defined Advantage were be considered to be same program, there have been no them then would need define separately. argues that the term be Medicare cannot meanings adjacent In given different sentences. UPMC’s view, distinctly construing Medicare and Medicare government would be consistent how the federal treats they programs both since are created different statutes and governed by regulations, different a cannot and subscriber programs both once. the third sentence of the suggests UPMC instead is, in actuality, clause coordination employee clause intended cover situations when an benefits plans, is two medical one which commercial covered insurance, In and the other which is Medicare. such situa- tions, insurance can primary the commercial either be the depending on the size of the secondary payer Medicare clause, UPMC, of this is to according business.16 effect to The require participants that all Medicare be in-network whether primary secondary or not is a UPMC payer. Medicare of at Highmark acknowledged avers that the effect this clause hearing. the

Further, that it illogical UPMC claims would be read this obligation an creating sentence as treat Medicare Advan- tage restrict, as and then in the members “In-Network” sentence, only of of second half the coordination benefits program. traditional those Medicare UPMC claims of Judge Pellegrini improperly disregarded that the effect of part interpretation. second the sentence his UPMC that, if further all programs avers Medicare related includ- consumers,” ed within as “Medicare such Medi- program, which is also a Medicare related then it gap, would as a of impossible render coordination matter law. benefits that it is for Judge Pellegrini UPMC maintains inconsistent interpret populations requiring the vulnerable clause as Highmark UPMC to contract with all Advan- with Medicare tage products, previously when he that Highmark ruled was no to contract with obligation Community UPMC under plan. Blue that the

Highmark responds Consent Decree is a contract UPMC; hence, it and it must interpreted between be Services, generally, Department 16. See U.S. of Health and Human First, Pays Health Your Guide to Who Medicare and Other Benefits: that, (explaining employer those 65 and older who work for an employees group with 20 or more the commercial health insurance whereas, plan secondary payer; pays first and Medicare is a if the employer employees, payer primary has than 20 is less secondary group plan payer); Testimony health of Shawn 5/27/15, Bishop, Hearing, Maree N.T. at 324-27. accordance fundamental contract principles, namely, with law provisions that all of the of a contract must be considered contract light purpose in a construed manner to all of gives provisions. Highmark effect those stress- clause, es that the populations together vulnerable when read whole, as a had with Consent Decree the core purpose ensuring Highmark customers could basis, an providers continue to access UPMC as in-network they had in the until past, expiration done of that decree. Highmark argues Judge Pellegrini recognized properly purpose negotiation that the fundamental entry the Consent Decree to ensure that populations, was vulnerable citizens, such as senior would provided be ser- medical vices, anxiety Consent Decree served lessen the populations those who were subscribers securing physicians in-network and facili- access until ties multiple avers that the contained in sentences should, therefore,

the vulnerable clause read view, In purpose. Highmark’s whole to fulfill that the first clause, of populations sentence specifying vulnerable that populations vulnerable include those seniors who have eligible Advantage, are Medicare to indicate that serves clause, of protections populations the vulnerable as a whole, Highmark’s to those in extended Medicare Advan- tage programs, Advantage inasmuch Medicare members to program are considered the Medicare participating be acknowledged by under fact federal law—a the Medicare www.medicare.gov. Highmark itself on its program website that of populations contends the third sentence the vulnerable of to purpose providing protection clause serves the that these to ‘all “by requiring partici- individuals UPMC treat Medicare consumers,’ pating which includes Medicare mem- bers, Highmark Highmark as In-Network.” Brief that, avers because “In-Network” is the Consent defined Highmark, Decree as when with” UPMC “has contracted imposes an on UPMC to in a Advan- obligation Medicare Id. tage Highmark. contract with that reliance on the Highmark UPMC’s disputes that it is not a extension excuses Decree’s statement contract provide network access obligation it from continue of categories for certain its customers. UPMC facilities Highmark requirements that Consent Decree contends any rights existing termination “trumped” contained as, view, it with UPMC in its “that individual contracts had Highmark Brief point was the whole of the Consent Decree.” at 30. of

Highmark reading next contends that UPMC’s the third of the clause as defining sentence only consumers as those enrolled Medicare, would, not in if Advantage, traditional but having meaning result in the sentence no accepted, respect requirement since the “In-Network” contemplates a contract a health plan section between reimbursement, a provider provide services for but paid directly by govern- traditional Medicare is the federal provider performing ment health care services and contract a any by Highmark involve with health care does Rather, if provider. having meaning considers it as applied Advantage, program to Medicare as such fits within of “In-Network” the Consent the definition under it is a contract it to provide because between and UPMC care for reimbursement. health services argument Judge UPMC’s Regarding Pellegrini improp- which, last erly disregarded portion the third sentence view, in UPMC’s demonstrated that this sentence was a clause, that, if Highmark posits coordination of even benefits the last sentence were to function in portion interpreted clause, capacity a coordination benefits does not change plain meaning language the entire sen- tence, obligation UPMC’s to treat all Medi- establishes Moreover, High- care consumers as in-network. see that, regulations, mark out under federal points relevant 422,108 (establishing secondary payment § proce- C.F.R. Advantage when “Medicare is not Medicare dures function as primary payer.”), Advantage can either insurance; thus, primary secondary subscriber’s third sentence cannot being be construed as to only limited traditional Highmark Medicare. Brief at 38.

Highmark rejects also contention that UPMC’s the second clause, sentence of the populations requires vulnerable it contract, continue to the exclusive source of its obli- gations clause, populations under the vulnerable since that interpretation disregards the third entirely. High- sentence mark proffers that sentence of the second vulnerable populations clause enumerates are not programs, which Medi- CHIP, care programs, such as and Medigap, requires sentence UPMC to in a contract for be those programs, requires whereas the third sentence UPMC to inbe a Medicare contract Advantage Highmark. Highmark with that, highlights as Rice-Johnson’s showed at testimony hearing, Advantage the reason that Medicare was deleted from the second was so that it sentence could offer its Community Blue of program being making without accused change unilateral in Advantage program its Medicare viola- tion of the restrictions that sentence. asserts that, deletion, in no intention to making had exclude existing to its programs— subscribers Security protections Blue and Freedom Blue—from the clause, and that it considered populations those to still protected subscribers under third sentence the clause.

Highmark disputes any that it in course of engaged ever that indicated that it acquiesced interpre- conduct UPMC’s tation of It populations the vulnerable clause. describes UPMC’s of the statements question assessment made reports correspondence by employees being its “cher- that, ry-picked” argues and taken out context. It when they these are examined their reveal no entirety, materials by Highmark agreement admissions or indicating conduct interpretation with UPMC’s the vulnerable clause. brief, aligns entirely High-

In its mark’s clause. interpretation population’s the vulnerable

132 participat- The avers that term “Medicare Commonwealth is, Pellegrini recognized, not a term of ing Judge consumer” as art; hence, view, in given the Commonwealth’s should be is, consumer who ordinary accepted meaning—that and a program. in Medicare The participates Commonwealth to a Highmark that those who subscribe Medicare agrees with participating the federal Medicare Advantage policy are rights protections have the same and program they that and Parts A B. The as those who are enrolled Medicare is Advantage that Medicare a distinct disputes Commonwealth contended, pointing out that UPMC has program as statutorily C of Advantage designated Part the Medicare viewed, along A therefore, parts it must be program; Medicare, part program.” B the same as a “distinct Brief at Commonwealth rejects

The UPMC’s assertion the last Commonwealth have they clause of the third Medicare as sentence—“whether secondary their insurance”—renders entire primary as a coordination benefits clause. The Com- only sentence that this would with the asserts be inconsistent monwealth all of its plain meaning includes individual Moreover, the Commonwealth stresses that a parts. such with the entire reading purpose would inconsistent be pur- Decree. As the Commonwealth describes this pose: why

The whole of the consent decree—the reason purpose got corporate spat the Commonwealth involved place—is protect might first the consumers who be injured The first Popula- it. sentence Vulnerable by provision expressly tions includes Medicare population; of that vulnerable part yet, members UPMC, on to according provision goes then exclude any not protection from whatsoever. UPMC does them what attempt explain purpose would served such be provision, none comes mind. (emphasis original).

Commonwealth Brief at The Com- that, if Judge Pellegrini’s monwealth also endorses conclusion consumer are construed as terms Medicare excluding members, Medicare Advantage then the clause is meaningless and illegal since the rates for Medicare are “set exclusively by cannot CMS and abrogated by private Id. contract.” at 29.

The argues that the extrinsic evidence re- lied on UPMC involving Highmark’s of performance course is, not view, should be considered since the contract in its ambiguous, and makes no argument UPMC that it is. Fur- ther, if even the Consent to Decree were be considered ambiguous, meaning then its is a of is question fact which properly fact, resolved of by finder and the Common- rejected wealth Court arguments. below UPMC’s event, In any the Commonwealth maintains that UPMC’s evidence does not support the conclusion that Ad- vantage were not protected members intended to be under Consent Decree. The unambiguous, by

not be considered clear and as evidenced the in this mat disparate interpretations by parties advanced the ter, which, face, can each of taken on its be considered Thus, given ambiguity terms, the of these as reasonable. issue,17 Advantage policies to the Medicare at it was applied of proper Judge Pellegrini question take evidence the rely the of these terms and to on such evidence in meanings Master, interpreting Org. these terms.18 See Int’l Mates & (in Pilots, at 624 the of the ascertaining meaning 439 A.2d decree, “may of a consent a court take into terms consider circumstances, surrounding ation the the situation the objects view, have in the parties, they apparently subject-matter of the To the agreement”). nature Advantage plans 17. These are the two in existence into—Security at the the consent decree was Blue and time entered provider. Freedom Blue—which include as an "in-network” Order, 5/29/15, (resting 2 18. See Commonwealth Court at determina- "upon presented hearing”). tion consideration of ... evidence at the

135 findings extent that the court’s of fact and credibility determi- by record, nations supported we defer them. will 326, 363, Messina v. East Penn 619 Township, Pa. 62 A.3d 366 (2012). However, we legal review the court’s conclusions de Id. novo. addition,

In our guided by review is princi certain canons, ples, contract interpretation. See Hutchison v. Coal, (1986) 192, 513 Pa. Sunbeam 519 385 (construing A.2d ambiguous language a contract through examination of extrinsic application evidence of interpreta canons tion). Four such which, some of principles, as discussed above, parties have been referenced arguments, in their are applicable First, to the instant case. “the entire contract should as a to give be read whole ... effect to its true Wick, 598, v. purpose.” 725, Pritchard 406 Pa. A.2d 178 727 (1962). Second, interpreted a contract must be to give effect to all provisions. Murphy, Thus, of its 777 A.2d our Court “will not interpret provision one of a in a contract manner results another annulled.” portion being LJL Pilot Air Transp. Freight, 546, v. 599 962 639, Pa. A.2d (2009). Third, 648 “a parties word used in one sense is interpreted employed throughout the same sense writing the absence of countervailing reasons,” such as Glosser, the intent of thwarting agreement. Maloney v. (1967). 607, 548, And, Pa. 235 A.2d 609 finally, 427 party’s under the of a performance terms contract is evidence of the Razumic, meaning those terms. Atlantic v. Richfield (1978). Pa. 390 A.2d considering entirety In of the evidence of sur- record rounding the formation of the Consent Decrees to discern clear, their true it is on the purpose, abundantly history based contentious interactions between the recited above, that the specifically intended them to provide enduring a measure of security certitude and health consumers who of High- care were members certain they mark health care that plans, significant would incur in if seeking costs treatment at UPMC facilities fol- UPMC on through promise provider lowed to terminate contracts plans for at the end 2014. The also reflects these record to seek particularly that the Commonwealth was motivated the justifiable to Decrees alleviate concerns had impact looming over the deleterious these would terminations on certain most likely have vulnerable individuals to groups treatment, of access or be need to UPMC facilities medical who, circumstances, but because their would have the costs, greatest difficulty paying higher out-of-network or obtaining other for such insurance care. This included all enrolled, enrolled, or eligible High- individuals be those Advantage plans. mark’s then extant See Common- Review, 6/27/14, wealth Petition for at 13; Commonwealth at Brief

The had into parties previously entered the Mediated alia, Agreement, by officials, to, due intervention state inter ensure some measure access for enrollees continued Advantage to certain for plans facilities a UPMC period upon provider agree- limited time termination Agreement ments at the end of 2014. The required Mediated negotiate parties in-network rates this continued Agreement, However, access. once it supra. See Mediated to the that parties became evident would not, initiative, on negotiated agreement their own reach a objective, con- accomplish amply supports record Commonwealth, point, clusion that actively sought alternative, more a solution—namely, comprehensive an viable judicially binding enforceable accord which was In parties. order to ensure that eligible those covered be covered these Medicare programs, all populations, other individuals considered vulnerable would long-term have access facilities the time beyond periods parties provider in the agreements established then in place, specifically requested the Commonwealth agree- Commonwealth Court order the into a new ment, to provide also mechanism—last best offer arbi- tration—whereby the rates for access would deter- such parties, anticipated, negotiate mined if the could not such Review, rates. Commonwealth Petition at 6/27/14,

187 (requesting that the Commonwealth “[r]equire Court respondents agreement reach an for hospital, physician and follow-up for Highmark services members who are of part populations, including, but not vulnerable limited consumers age eligible and older who are or by ... covered Medicare Advantage plans and, ... health ... failing agree- such an ment, impose arbitration”); last best offer (“The Decree, 4/27/15, Petition to Enforce Consent Con- at 7 Decrees, vigorously negotiated voluntarily sent executed by parties], designed [the were both in express terms and in concept protect vulnerable of by the public pro- members viding senior and other care recipients citizens with suffering insurance to disruptions avoid in their medical care UPMC”). having emergency unavoidable contacts with and/or Consequently, Decrees, all provisions the Consent which, by terms, their intended to were settlement of by matters raised the Commonwealth in for Re- its Petition view, see Consent at IV(C)(5), Decree parties which both voluntarily agreed, interpreted to must be effectuate this objective overarching shielding from populations vulnerable incurring excessive out-of-pocket costs, ensuring medical by their basis, access UPMC facilities an in-network even after specific contracts provider covering these populations terminated, scope and that the were this protection was specifically intended to participat- extend those individuals ing Advantage plans, Medicare and intended to last at least long as the life of decree. only populations The clause is vulnerable clause in affording populations Consent Decrees vulnerable cost this protection, by setting specific containment forth the contractu- obligations al with respect to their medical specifies popu- treatment. The first sentence that “vulnerable (i) age eligible lations consumers 65 or include: older who are ” Medicare, or Advantage.... covered Medicare TV(A)(2). Thus, this introductory Decree sentence furthers Decrees, purpose by establishing central the Consent covered, covered, that all to be eligible those Advantage protections are to all of plans be afforded clause. The remain- the vulnerable

conferred by must, therefore, together in this be read ing sentences clause and, sentence, also, in a which introductory manner purpose consistent with the central the Consent Decrees. Pritchard; Murphy. provisions to the sentence of the

Turning second clause, is not within its list enumerated provide medical insurance to vulnerable plans of other Highmark Signature such 65. How- populations as CHIP and ever, partici- this fact alone does not exclude those individuals Advantage protections in Medicare from the the pating Indeed, there no clause.19 element populations vulnerable coverage which of this of the sentence restricts second only in participating plans clause to those enumer- individuals sentence; terms, thus, by in the second its the second ated preclude protection does not for Medicare Advan- sentence in tage being from addressed elsewhere participants is, fact, separate in with the entirely clause. This consistent parties previously manner in which the treated these various In Agreement. agreement, in that one plans the Mediated Advantage, Medicare whereas another provision addressed covering populations, separate plans vulnerable addressed Agreement, supra. as CHIP. See Mediated such Therefore, presently acknowledge, as the since not Advantage plans by are covered second Medicare clause, the central populations sentence of the vulnerable terms con- is whether the “Medicare question may interpreted in be the third sentence afford sumers” supra, Highmark 19. As indicated President Rice-Johnson testified that purpose removing Advantage Medicare from the second sentence clause was to ensure that when Community Advantage program Blue offered its then new Medicare being UPMC of in violation of the decree. by would not be accused 5/27/15, However, Hearing, that she did at 210-11. she indicated N.T. obligation consider deletion to relieve UPMC of its to contract not that existing Advantage programs, Highmark for those in its Medicare require. at she third sentence of the clause Id. which viewed the our conclu- evidence record buttresses 214-15. This uncontroverted deletion, intend, through exclude not this sion did that coverage programs from the existing Medicare those populations clause. the vulnerable protection to those As plans. Judge Pellegrini individuals recognized, phrase “Medicare participating consumers” is anywhere defined the Consent nor does the introductory of this portion sentence use the terms “Medicare” Advantage,” alone, “Medicare standing as was done in the then, first sentence. This reasonably suggests, this phrase may not restricted to apply either two those programs individually.

Accordingly, Judge Pellegrini properly resorted to the con- sideration of question, extrinsic evidence this which was furnished at through testimony hearing taken held matter, this and the exhibits submitted from government’s the federal Medicare Based on website. evidence, Judge Pellegrini found the terms “Medicare participating consumers” were intended to broadly include participants in and Medicare Advantage both programs to in referred the first sentence the vulnerable 6/29/15, populations clause. Commonwealth Court Opinion, As reasonably supported by this construction is evidence, below, we discuss it. we bound

The overall structure of the statutory program has succinctly by the Circuit Court of been described Third Appeals, thusly: parts.

The Medicare Statute divides into four Part benefits A, Disabled,” “Hospital Aged Insurance Benefits for and B, and Part for and “Supplementary Aged Medical Benefits Disabled,” create, describe, regulate and traditional fee-for- service, §§ government-administered Medicare. 1395c to 1395Í-5; 1395—j C, §§ to 1395w-5. Part with the inserted 1997, 105-33, passage Budget of the Balanced Act of Pub.L. known as program Advantage, creates the now Medicare Finally, which allows for the creation MA ... Part plans D provides prescription drug coverage for Medicare § enrollees. to -154. 1395w-101 In Mktg., Litig., re Avandia Sales Practices & Products Liab. (3d Cir.2012). 685 This explication supports F.3d conclusion, legal Commonwealth, advanced that Medi- A, B, care Parts and C are statutorily component treated as parts program, of the overall Medicare but serve same coverage purpose providing common health insurance however, aged saliently, and disabled individuals.20Most is the A, B of the function interpretation that Parts fact C, testimo- previously confirmed was further described ny Aging a official Sampson, Pennsylvania Department familiarity the Medicare due to particular program with in experience administering Apprise program her personal servicing elderly and who conducts educational populations, health training relating elderly Critically, care. issues as as the official Sampson’s testimony, well materials both agency pro- from the which administers the Medicare federal CMS, that, in of the gram, govern- establish federal view ment, if is enrolled in an individual Medicare is in the that still considered federal program, individual such, As a enrolled in program. person Medicare who is Part A and Advantage receives their Medicare B Medicare See N.T. through Advantage program. benefits the Medicare 41-66; 5/27/15, “13 Hearing, Commonwealth’s Exhibit Advantage Plans,” Medicare things https:// to know about www.medicare.gov/sign-up-change-plans/medicare-health- plans/medicare-advantage-plans/things-to-know-medicare- (“1. Pro- You’re still the Medicare advantage-plans.html rights 3. gram. protections. 2. You still have Medicare You Part A and Part B get coverage through still complete plan.”). we conclude that the Consequently, findings Highmark’s Court’s Ad- enrollees Medicare vantage plans properly participants considered therefore, are, program, included within the consumers,” ambit of in the third “Medicare Contrary suggestion, Medigap policy fundamentally is UPMC's A, C, designed pay from Medicare B is different Parts paid A and B of difference costs between the amounts under Parts care; hence, Medigap Medicare for medical it is unremarkable provided separately under the sentence second (Me- Supplement clause. See Insurance "What’s digap)?,” https;//www.medicare.gov/supplement-other-insurance/ ("A medigap/whats-medigap.html Medigap policy is different a from plans ways get Plan. Those benefits, Original Medigap policy only supplements your while a Medi- added)). (emphasis care benefits.” clause, sentence of the populations vulnerable are amply sup- ported the record. reject UPMC’s

We contention that “Medicare participating consumers” can only be understood to refer to those individu- als in B Medicare Part A part because the latter third sentence of the states, clause “regardless of whether participating [Medicare consumers] have Medicare as primary their or secondary insurance.” IV(A)(2). Decree, § As by Judge noted Pellegrini, the third sentence of the Consent explicitly Decree obliges UPMC to treat all participating “Medicare consumers” “In- as Id. The Consent Decree Network.” “In-Network,” defines part, relevant to mean “where a Health Care Provider has contracted a provide specified with Health Plan to services negotiated at a reimbursement rate to treat the Health Plan’s II(I) members.” Consent As (emphasis supplied). testimony President hearing Rice-Johnson’s established, disputed, which was otherwise no there is negotiation a government between federal and health care provider agrees who with the federal government become a participating in Part A B of provider the Medicare program. provider The must accept participating provid- paid by Thus, er rates Judge Pellegrini found, CMS. as if the phrase “Medicare consumers” is restricted only participants B, those A Medicare Parts Consent Decree purport negotiation would allow of those rates, though even such rates are determined and not CMS subject to negotiation under federal law. Such an interpreta- would, therefore, tion illegal Judge Pellegrini deter- mined. Since we not countenance interpretation do of a contract it illegal incapable which would render of perform- ance, but, rather, give construe a contract to legal effect therein, every provision refuse to interpret we likewise third this manner. Murphy; see also Restate- sentence (2d) 203(a) (“an § ment of Contracts interpretation reasonable, gives lawful, meaning and effective all [con- terms is to an preferred interpretation tractual] which leaves a 142 effect.”).21 unreasonable, unlawful, or of no

part true, argues, that, general as a rule it is as UPMC While a in a contract which is first used in a term interpretation, usually given in the contract is the same manner particular contract, the remainder of the this maxim meaning throughout absolute, yield countervailing must the face and it is (4th § 11 on Contracts 32:6 Maloney; indications. Williston ed.). reasons not strong countervailing Here there are “Medicare,” in the term used restrictively interpret A sentence, only B, Part since apply third Medicare popula- first sentence of the vulnerable that would annul the expressly designates tions clause which those individuals cov- separate as a by popula- ered Medicare vulnerable Moreover, A by Part and B. tion from those covered Medicare an interpretation such would have the importantly, and most by of the contravening purpose effect of Consent Decrees excluding participating those seniors entirely pro- from the “in-network” cost containment Advantage plans Decrees, though even Consent tections established conclusion that these were compels record individuals protected.22 intended to be specifically found, Judge Pellegrini is his 21. As this construction consistent with separate question decision which dealt with the October 2014 clause, i.e., Highmark’s duty population’s to under the vulnerable obligated to include UPMC as an in-network whether was then-newly provider population under the vulnerable clause for its above, Community plan. Judge Blue HMO As Pelle- offered indicated grini language opinion October that the concluded his sentence—i.e., "UPMC treat all Medicare the third shall In-Network,” imposes duty consumers as a on to treat those “In-Network,” language, ap- consumers as but this same which also pears populations Highmark’s in the vulnerable clause of Consent impose corresponding obligation Highmark. does not Although UPMC insists that the third sentence of the vulnerable populations only clause must be read as a coordination of benefits population when a member of a has clause that functions vulnerable commercial, coverage, employer Part A B and also has insurance, provided group unpersuaded suggested we are health construction, that, given again, this would necessitate us to restrictive part popula- interpret first of the third sentence of the vulnerable requiring those Medicare Part A and B to be tions clause as consumers and, thus, "In-Network,” mandating illegal impossible negotia- Additionally, coverage. B tion of for Medicare Part A and rates Instead, we construe of the operation second third sentences of the vulnerable clause as populations functioning in a manner that consistent with the core purpose Decree—namely, they to provide work tandem protection contractual to all described in the first sentence of the clause. second The sentence requires shall “UPMC continue to contract High- mark at in-network rates for all of hospital, physician and appropriate continuity CHIP, care services 65, Signature Medigap and commercial retiree carve out as as long Highmark does not unilateral changes make material IV(A)(2). programs.” Decree, § these Consent The third sentence, using while not the same “continue to contract” terminology, nevertheless obliges partic- UPMC to treat those ipants Highmark Medicare “In- Advantage programs as Network,” thus, and, requires it High- have a contract with mark that negotiated establishes rates for treatment of those Advantage programs Medicare for which cur- provider High-

inasmuch as some of the commercial contracts between and, by ultimately, mark and UPMC were not covered those decrees 2014, expired at the end of see Motion Enforce Consent 4/27/15, illogical it would be under such circumstances to construe being provision solely govern this as intended to the coordination of B longer Medicare Part A and benefits with benefits would no which be Likewise, payable upon expiration of those commercial contracts. as only the Consent Decree is to establish the intended contractual obli- duration, gations of incongru- UPMC for its it would purpose sole ous to construe the of this sentence to be a coordination of benefits clause between Part A and B benefits Medicare benefits and payable policies by under commercial health insurance offered insurers parties who are not to the decree. Moreover, importantly, interpreting and most we note that “Medicare including consumers” as those enrolled in Medicare Ad- enrolled, vantage eligible plans, prevent or to be would not this clause operating employer from to coordinate benefits for those who also have commercially purchased coverage. Advantage based health Medicare primary secondary coverage can function as either or in such circum- stances, 1395w-22(a)(4) § (setting authority 42 see U.S.C. forth Advantage organizations payers); secondary Medicare to act as 422.108, (enumerating Advantage § secondary payer C.F.R. Medicare would, then, procedures), operate require and the clause the rates members, paid by Advantage plan as the the either "In-Network,” and, therefore, primary secondary payer, to be estab- negotiation provisions lished either or arbitration under the of the consent decree. UPMC, or, if provider negotiations has contracts with rently fruitless, such rates then will be set arbitration under are IV(C)(1)(a)(iii) Section the Consent Decree. populations specifical- the vulnerable clause

Accordingly, as governs continuing obligations under Con- ly parties’ the respect Advantage participants sent with to Medicare Decree covers—i.e., it time the time period from not, 2019—this is provision of the decrees until as entry contends, superseded by provision the introduc- paragraph provides the decree which that the decrees tory 1(A). are not “a contract extension.” Consent Decree Given surrounding entry decrees, of the circumstances construing prefatory language conjunction this clause, the introductory admonition not a contract must extension be understood only pertaining to the contracts between the which Decree—i.e., to the effective date the Consent prior existed agreements in provider effect at entry time of the Decree now due it be terminated December 2015—and forecloses However, annual contracts. automatic renewal those duty perform separate does not relieve UPMC of the to its imposed by populations clause, obligations vulnerable it to treat require which as in-network all those independently in participating Highmark’s Advantage plans, Medicare which existing to the and soon to subject provider be terminated in agreements. Certainly, require- order to with the comply clause, could population agree ments the vulnerable UPMC existing provider agreements to continue their these under 31, 2015, on expiration they terms after their December since in already Highmark’s furnish participants Medicare Advan- facilities; tage in-network to UPMC plans with access howev- er, it has not to elected take this route.

Thus, despite existing UPMC’s termination Medicare 31, Advantage provider agreements 2015, as December populations obligates clause still UPMC treat vulnerable plans participants Advantage governed by in Medicare those period January as “In-Network” for the provider agreements

145 forward, and the rates for such treatment will be IV(C)(1)(a)(iii) specified by determined as Section of the Con- Decree. such agreement sent Absent between the rates, the Consent provides Decree for binding arbitration Id. settle the matter. Consequently, Judge Pellegrini’s order, directing contract,” UPMC to “in a and for UPMC to be an provider “in-network” Medicare Advan- tage plans because UPMC’s termination of the Medicare Advantage provider agreements, obligations, confirms these affirm it in regard.23 we this

III. Issue Two that, argues UPMC next regardless obligations of its clause, was, under the it populations nevertheless, vulnerable entitled to from escape obligations imposed by the vulner populations’ able fourth under the sentence of that provision, Highmark, because after the execution of took in positions certain it right claimed the unilateral adjust its fee schedules Advantage under the Medicare agreements. Specifically, UPMC claims that took in position: complaint this regarding paid the rates for oncology drugs it filed in the Allegheny County lawsuit; pleading filed on July the AHLA proceedings; arbitration a letter to UPMC Highmark sent 13, 2015, response on March to Highmark UPMC’s notice breach; of its and in an in a material interview journal. Advantage position UPMC claims “take since, view, clause” all of in its encompasses these statements no temporal that clause has restriction and “applies equally present, past, and future contracts.” UPMC Brief at 58. Highmark denies that it took any position under fourth sentence of clause which would trigger right escape obligations UPMC’s under existing 23. Because UPMC’s termination of the provider separate contracts does not relieve of its contractual clause, obligations by populations created the vulnerable the issue of Highmark right whether "admissions" that UPMC had to made the existing Advantage provider any terminate its contracts at time is irrelevant. that, contrary, since Highmark avers Consent Decree. Decree, it has consistent- entry of the the Consent time trial as reflected the aforementioned position, taken the ly Rice-Johnson, that it considers itself bound testimony that, from the time the rate terms of the Consent and forward, repeatedly it averred entry of the the decree it was change any agreed upon by rates unless would that the record Highmark argues or arbitrated. both scope of the understanding it has adhered to reflects it took any Decree and contends that actions the Consent regarding disputed oncology drugs, any fees reimbursement, to its right statements related were public provider agreements Decree be- regarding pre-Consent UPMC—i.e., Advantage provider it and the Medicare tween entry of the Consent agreements which renewed before 1, 2014, which as of April terminating Decree on UPMC is Highmark argues that the Consent De- December as reasonably curtailing rights cree cannot be read take prior entry. which occurred to its positions matters agrees Highmark’s interpretation The Commonwealth nature, “escape looking that this clause” forward only Highmark entry took after the applies actions Judge Pellegrini’s Commonwealth defends decree. The as not prohibiting Highmark of this sentence interpretation from Decree action it took to challenging pre-Consent change oncology prior April fee schedule that it proffers renewal deadline. The Commonwealth would to allow UPMC the Consent Decree escape absurd entry, actions took before its as such an citing unilaterally UPMC to exit the interpretation would allow time, rendering illusory it an any Consent Decree agreement. unenforceable clause

The relevant sentences issue, 4, provide: to this sentences 3 and pertaining UPMC shall treat all Medicare consumers have Medicare as regardless they In-Network whether secondary insurance. UPMC reserves the their primary arrangements from these if right to withdraw position should take the that it to authority has the revise the payable arrangements rates and fees under unilat- those erally materially. IV(A)(2). discussed, § As Decree we have the third clause,

sentence of the vulnerable populations set forth above—that “UPMC shall treat all Medicare consumers as that In-Network”—requires High- UPMC and mark maintain a contractual relationship which sets “In- Network” reimbursement rates for medical treatment provid- in ed to participants Highmark’s Advantage plans. Medicare we read Consequently, phrase arrangements” ap- the “these in pearing to referring the next sentence as this contrac- very tual relationship. then, we “if

Correspondingly, phrase must construe the Highmark position should take the that it has the to authority revise the and fees payable arrangements rates under those to unilaterally materially” refer to a situation where Highmark right the that it has the to position takes unilateral- ly the materially change rates and fees to UPMC payable under the Advantage plans. phrase We find this unambiguous. The “if phrase’s Highmark use the words position” should take denotes a conditional occur- the future rence; thus, Highmark argue, and the Commonwealth condition was to prospectively apply, intended from the time entry words, of the decree In other it is forward. if triggered Highmark take the that it has position should right to it unilaterally pays alter rates and fees UPMC for patient Advantage agreements care under the Medicare from entry through the date the Consent Decree its termination. that it

Highmark clearly right April believed had the 2014, prior Decrees, to the of the Consent entry unilaterally change fee schedules it oncology paying was under that Advantage provider agreements effect at time, for and which renewed 2015. This is reflected belief brief, in its various documents referred all by Highmark management contain assertions and its personnel justified making that it that alteration to the was agreements. of those in 2014 under terms

fee schedules However, Court’s the Commonwealth supports record possess itself to Highmark conclusion that did consider the Consent Decrees right take such unilateral action once contrary, the record reflects the Com- To the were entered. consistently dis- monwealth Court’s conclusion any right it such under the Consent Decree had avowed specified changes, such considered decree’s make setting rates mechanisms i.e., arbitration, controlling, negotiations plans, subject by on this Rice- Highmark’s stance is reflected best hearing testimony Johnson’s Commonwealth arrangement “Once into the Court: we entered Decrees, ability [change limited our fee sched- Consent forward, period the Consent Decree during ules]. So they agreed not change mutually upon will rates unless we 5/27/15, or agreed upon through Hearing, arbitration.” N.T. Judge testimony finding Pellegrini at 186. credited for, terms of account express specifically the Consent Decrees seek, explicitly recognize Highmark’s right resolution oncology pre-Consent dispute drug Decree over reim- IV(C)(l)(a)(i)(ii) (refer- bursements. See Consent Decree, § ring currently being by to “rates UPMC and arbitrated” Highmark). affirm the Consequently, we Commonwealth from may that UPMC not seek release Court’s conclusion Decree upon Highmark specifi- Consent based conduct cally permitted by was the Consent Decree. Three

IV. Issue attacks, Finally, alleged as an denial due process, order, paragraph Judge Pellegrini’s which bars from making “any changes any both UPMC and contract, Plan, relationship or other between UPMC business small, securing no matter how first without ... order, Court,” from 4 of his approval paragraph request supplemen Commonwealth will file a “[t]he states decrees, compliance tal relief to with the consent effectuate to, in corporate governance.” not including changes but limited Order, 5/29/15, at 3. given UPMC claims that it was no notice that such relief could be entered during the proceedings below, as it was requested by the Commonwealth in its motion to Further, enforce the decrees. UPMC argues that the Commonwealth Court jurisdiction had no to supervise the private business interactions between these two parties, as its jurisdiction was limited resolving arising matters under the only; nor, claims, Decree did jurisdiction Court have original to hear issues relating to changes corporate governance, as such matters are within jurisdiction the original Orphans’ Court Division of the Courts of Common Pleas.

Highmark responds that UPMC mischaracterizes para- graph 3 of Judge Pellegrini’s order, inasmuch as paragraph 3 encompasses only matters covered the Consent Court, over which the Commonwealth by the terms of that decree, jurisdiction retains Commonwealth, resolve. The part, suggests that UPMC’s appeal quashed should be under our Court’s decision Rae v. Funeral Directors Asso- ciation, (2009), 602 Pa. 977 A.2d 1121 in which our Court that, in ruled situations where there an order a lower tribunal containing multiple parts, and part one the order meets the three-pronged allowing test appeal immediate as a collateral order under Pa.R.A.P. of remaining parts subject the order are not to appellate unless each review parts those independently three-pronged meet the test as well. acknowledges Judge While Commonwealth Pellegri- that ni’s collateral, instead, not order is but it as interlocu- views tory since it contemplates proceedings further in the trial court, should, the Commonwealth asserts that we neverthe- less, apply the rationale of quash portion Rae and appeal UPMC’s 4 dealing paragraphs with 3 and of Judge Pellegrini’s order.

Our of paragraph Judge review 3 of Pellegrini’s order to it compels nature, us conclude that is in prohibitory that from parties any bars both further action taking would alter relationships their without obtaining ap- business from proval Thus, contrary Commonwealth Court. to the 150 constitutes a paragraph this suggestion,

Commonwealth’s Barish, v. See Levin 505 Pa. A.2d injunction. form of (“An (1984) injunction prohibiting is a court order 1183, action.”). such, it is As commanding virtually any type right as of interlocutory immediately appealable an order supra See 311(a)(4). Thus, note 15. we will Pa.R.A.P. under of the order. appeal part UPMC’s this quash opinion, in his However, Judge Pellegrini explained as precluding is UPMC and scope of this order limited or con relationships their altering from business scope of the consent “that involve matters within the tracts 6/29/15,at 35. Con Opinion, decrees.” Commonwealth Court Pellegrini’s order, that Judge we conclude when sequently, fashion, is authorized this circumscribed viewed parties agreed inasmuch as the therein Consent jurisdiction “have exclusive to en the Commonwealth would the Commonwealth Court. force the Consent Decree” before IV(C)(4). Moreover, Decree, § we note that ample process protections by spelling also affords due section provided to a mandatory provisions out notice which must be any may formal enforcement action be taken party before Court, and it re against party the Commonwealth party opportunity any afforded the cure quires be agreement enforcement action prior violation under Id addition, In if action taken. formal enforcement being Court, taken the Commonwealth both later here, evidence given opportunity, they present were considered. Id. thus, We, positions have their respective portion Judge Pellegrini’s affirm this order.

Likewise, Judge Pelle- paragraph we consider the fourth injunction, in the of an since it is a order nature grini’s that it “will file a mandatory directive to request supplemental compliance relief effectuate Order, 5/29/15, at 3 the consent decree.” Commonwealth Court added). Accordingly, the order commands (emphasis because action, a we specific the Commonwealth to undertake future Judge of order constitute portion Pellegrini’s consider this

151 an interlocutory appealable order as under right Pa.R.A.P. 311(a)(4). Levin. so,

Even we yet find that this issue is not ripe adjudication. our Generally speaking, as our previ Court has ously articulated, “the doctrine of ripeness concerns the timing of a court’s intervention in litigation.” Philadelphia Entm’t & Partners, Dev. City 468, L.P. v. Philadelphia, 594 Pa. 937 (2007). 385, A.2d jurisprudential 392 This doctrine seeks having avoid our court prematurely adjudicate controversy, a thereby entangled become an resolving abstract hypothetical issue, has, whenever no party yet, suffered harm concrete which could through be alleviated appellate review. Id. determining When whether a ripe matter judicial review, our “generally Court will consider whether the issues adequately developed and the hardships that the Nurses, if parties will suffer review is delayed.” Boyada Inc. Com., Indus., Dep’t 527, v. Labor & 866, 607 Pa. 8 A.3d (2010). Presently, the Commonwealth has not any taken enforcement action this paragraph Judge under Pellegrini’s order, nor, brief, as it in its contemplating any indicated is it Hence, at this opine regarding time. were we to whether the potential power of this exercise the Commonwealth is lawful, rendering advisory opinion. we would be an Inasmuch is, party present, suffering neither harm from this provision Judge Pellegrini’s order, we conclude that to it challenge ripe present. We, UPMC’s is not for review at therefore, portion of UPMC’s appeal. See Brown quash Health, v. Dept. 495 Pa. 434 A.2d (1981) (quashing raising claims which appeal “pre were mature”). in part, quashed

Order affirmed Jurisdiction part. relin- quished. join

Chief Justice SAYLOR and Justice EAKIN opinion. a concurring Chief Justice SAYLOR files opinion. concurring BAER files a dissenting opinion Justice joins. which Justice STEVENS

Ox to SAYLOR, concurring.

Chief Justice subject following to the join majority opinion only I the difference. of an Baer that there is less agree

I with Mr. Justice of the Con- Populations in Clause ambiguity the Vulnerable of portrays, light in his majority opinion Decree than the sent simply illegal that the is not apt explanation third sentence in Parts A participants if to meaningless directed Medicare 160-61,129 Dissenting Opinion, B at 156-57 & alone. See Nevertheless, I is still A.3d at 477 & 479. believe there beyond the the four ambiguity justify inquiry, sufficient why Decree, of the Consent into the reason the corners language encompass contract” specific “continue to did Advantage. Medicare

In this in the Consent Decree “Medicare” and regard, collectively single Advantage” treated “Medicare as “(i)”—in segment—under the vulnerable-population sub-clause This Populations the sentence the clause. first Vulnerable drafter(s) plausibility to me to the the would seem bolster in the terms “Medicare consumers” having used encompassing the third as a shorthand the Medicare sentence Particularly previously a collective basis. treated units the landscape understanding, captured the broader the protect intent to majority opinion, overarching the members including Ad- populations—defined of vulnerable Medicare vantage parens patriae the of the participants—and overlay case, finding consequences I of ambiguity the and the support flowing from this determination. BAER, concurring dissenting.

Justice I the Opinion commend its excellent recitation Majority history in Part I of acrimonious factual and contractual the join I dispute. Additionally, Part IV complex legal challenges Paragraphs Three and opinion rejecting UPMC’s Also, I Pour of Commonwealth Court’s order the below. overarching that the agree Majority Commonwealth’s with drafting specifically intent the Consent Provision, protect the listed at- Population Vulnerable was

15B groups, including risk Advantage from participants, becoming damage collateral war between Indeed, UPMC. II path Majority taken in Part an attempt comport protect understandable intent language subscribers with the Nevertheless, Vulnerable Provision. I Population am con- strained dissent from Part II because I conclude that Majority’s interpretation is inconsistent lan- plain guage of provision.

While the Consent Decree unambiguously provides protec- tion for most the listed vulnerable populations, parties the either intentionally negligently require failed and to UPMC Highmark to to contract regarding continue Medicare Advan- tage. This Court no authority has to read ambiguity into plain language to order effectuate we what discern be the below, more result. As forth favorable set I conclude that the language not plainly require does to con- UPMC continue Highmark regard tract with Advantage, Medicare even if that original was the intent of the and would have been See, the for policy better the citizens this Commonwealth. e.g., Co., Willison v. 49, Consolidation Coal 536 Pa. 637 A.2d (1994) (“The 979, 982 accepted and plain meaning the used, language rather than the silent intentions of the con- tracting parties, given determines construction agreement.”); Co., 664, Moore v. Stevens Coal 315 Pa. 173 A. (1934) (“It not province is of the court to alter a contract by construction or make a for new contract parties; duty its is interpretation confined to the of the one themselves, they which have made for regard to without its 524). 485, folly.”) (quoting § wisdom or at 13 C.J.

As Majority, prior noted to signing Consent Decree, 2012, and Highmark, UPMC a entered into Mediat- Agreement ed global related amendment prior individual Advantage provider agreements, specified underlying Medicare Advantage provider agreements could be terminated than earlier December automatically annually would renew December after party provided unless either timely notice of termination.

r—1 Ol parties, disputes between Following relevant to this case.1 The the Consent Decree brokered it is not a contract extension specifies Consent Decree separate and instead creates provider agreements the prior in re- Highmark and UPMC obligations contractual between areas, including specified emergency to the service gard services, services, unique hospi- oncology/cancer room/trauma Clinic), and, (such Psychiatric Institute and tals as Western bar, UPMC populations. relevant to the at case 1(A). in the case question presented § The Population four-sentence following Vulnerable whether right Decree acts to restrict UPMC’s Provision the Consent provider to terminate Agreement the Mediated under Advantage: agreements Medicare agree that vulnera- Highmark mutually [VP-l] (i) 65 or who age include: consumers older ble Medicare, eligible Advantage, or covered (iii) (iv) (ii) CHIP. Medigap plans, health Medicaid and/or Highmark’s respect pop- With covered vulnerable [VP-2] to contract ulations, UPMC shall continue hospital, physician appro- for all of its rates in-network CHIP, continuity of care services priate as and commercial retiree carve out Signature Medigap not material long Highmark as does make unilateral UPMC shall treat all programs. [VP-3] to these changes regard- consumers as In-Network Medicare Medicare as their or they primary less whether have secondary right UPMC reserves the [VP-4] insurance. if arrangements Highmark from should take these withdraw authority that it has the to revise the rates and position arrangements unilaterally those fees under payable materially. (sentence IV(A)(2) designations § discussion). for ease of

added singular reference will use the term "Consent Decree” to We However, Highmark signed by recognize we document UPMC. equivalent language. signed functionally the same decree with sentence, The first VP-1, will be referenced undis- putedly provides that Highmark agree UPMC and “that vul- (i) nerable include: age consumers 65 or older who (ii) are eligible by Medicare, covered Medicare Advantage, (iii) (iv) Medigap health plans, CHIP.” Id. Medicaid and/or This sentence distinguishes between Medicare and Medicare Advantage programs, a distinction that is consistent with federal Majority notes, law. As the Advantage Part program C the which is governed by sepa- rate statutes and from regulations governing those standard (medical). Medicare Parts A B (hospital) Maj. at 116— Op. 18, 129 Advantage A.3d at 452-53. Medicare is administered by private companies negotiate insurance with health care providers regarding services, rates A while Medicare Parts and B are administered the federal government with rates set (CMS), Centers for Medicare and Medicaid Services without negotiation provider. Maj. 117-18, with the Op. at 129 A.3d at 453. An individual cannot have both standard Medicare and Medicare they provide because es- sentially Maj. 116-18, the same Op. at 129 A.3d at benefits. Thus, 452-53. Medicare Advantage and Medicare are distinct programs, which the Consent Decree recognizes VP-1.

The second Population sentence Vulnerable Provision (“VP-2”) when UPMC is addresses bound continue contract Highmark: with respect Highmark’s

With populations, covered vulnerable UPMC shall continue contract with at in- network for all of its hospital, physician rates and appropri- CHIP, ate continuity Highmark Signa- care services ture Medigap and commercial retiree carve out as long as Highmark does not make unilateral changes material programs. these IV(A)(2). Decree, § clearly

UPMC Consent This sentence requires UPMC to “continue to contract in- which, groups sentence, network rates” for the listed conspicuously importantly, does include Medicare Advantage. omission,

There is a for this reason which informs our analysis. prior A draft the sentence included Medicare

Advantage populations in the which list Highmark. to continue to contract obligated was with UPMC language, High- in the Anal negotiations resulting During from the Advantage Medicare stricken requested mark to to offer provision permit Highmark to contract” “continue that did Advantage product Blue Community its Medicare new See Cmwlth. provider. as an in-network not include UPMC 19-20; If 2015, at UPMC Brief at 38-40. Op., Ct. June list, in this the entire four- Advantage had remained Medicare fulfilled Population Provision would have sentence Vulnerable in listed the vulnerable purpose protecting However, while the included Medi- the first sentence. VP-1, Advantage population they as a vulnerable failed care binding UPMC to continue protect population by Highmark they intentionally deleted the contract when with agree I during drafting process, fully term from VP-2 require not UPMC Majority that this sentence does with regarding Medicare Highmark to contract with continue 138,129 Maj. Op. at A.3d at Advantage. acknowledges the absence Medicare Majority

While (“VP-3”) VP-2, it sentence Advantage from finds third Advantage an Medicare attempt protect ambiguous 133-35,129 Maj. A.3d at 462-63. Unfor- Op. participants. not does allow for such tunately, language VP-3 plain reading, again provides: as treat all consumers as shall

UPMC Medicare regardless they of whether have Medicare as In-Network secondary insurance. primary their IV(A)(2). Majority § The acknowl UPMC Consent “the edges that this sentence does utilize same ‘continue VP-2, but concludes that the sen terminology” contract’ as participants to treat those obliges tence “nevertheless UPMC ‘In-Network,’ programs and, thus, have a contract requires [UPMC] rates for treatment those negotiated that establishes Highmark currently Advantage programs through [or arbitration provider has contracts with IV(C)(1)(a)(iii) 143-44, 129 Maj. atOp. A.3d ].” under Section at 469. Majority’s While the paraphrase of the sentence unambiguously champions protection of Medicare Advan tage participants, the Consent Decree simply itself not does include this language. must

We restrict our examination to language to which the parties actually agreed. just There no way to construe language of VP-S require UPMC to continue contract with regarding If Advantage. to require

desired UPMC to continue to contract High- with mark regarding Medicare Advantage, they could have either VP-2, included the term as suggested they above and as did in an draft, or earlier they could have a separate drafted sentence stating: “UPMC shall continue to contract with Highmark at in-network for rates all of hospital, physician and appropriate of continuity care services Medicare Ad- vantage.” language This or expression a similar does not exist Population Provision, Vulnerable I and am unable language twist the of VP-3 into a “continue to contract” provision to reform the parties’ removal of Medicare Advan- tage from VP-2, the substantive provision requiring UPMC to continue to Highmark. contract with plain

The language VP-3 addresses the separate very limited issue of the rate UPMC in a charges coordination of benefits situation patient where has a a both a primary and secondary source health coverage, insurance where one Medicare, source is rates, which negotiated does not utilize and the other source is a health plan negotiated in- network rates. The problem sentence appar- addresses that ently plagued parties prior regard- the Consent Decree ing the charged rate a patient when was covered by both a private Medicare and plan. insurance UPMC Brief at 47-49 (quoting testimony Highmark President Rice- Deborah Johnson, (“N.T.”), 215). of Testimony 27, 2015, (which has no pay

an who both Medicare would individual The Consent Decree defines "In-Network” as: 2. provider a contracted "In-Network” means where health care has provide specified for a Health Plan to services reimbursement with negotiated to treat the Plan’s members. The at a rates Health charged co-pay, be no more than the co-insurance or member shall Plan, charged by his or her Health the member shall not deductible specified be treatment for service in the contract based refused the negotiated paid rate the on his or her Health Plan and the under payment in the Health Plan and the member shall be contract specified full for the services. II(I). § UPMC Consent provisions Additionally, detailed set the Consent Decree includes rate, negotiated of the In-Network rate in the absence a could Highmark pertain where UPMC and do not current to situations have a IV(C)( )(a)(i) provides parties 1 if the cannot contract. Section that rates, negotiate otherwise the the "In-Network” rates for 2015 "shall mutually agreed upon revert to last rates or fees UPMC and the (MBI) Highmark applicable the medical market basket index with 1, IV(C)(l)(a)(iii) January Similarly, applied increase 2015.” Section period beginning January "In-Network" rates for the addresses expiration expiration of of the Consent Decree or “the until later Highmark any agreements UPMC and for all In-Network of between negotiated provides services” and that the rates shall either between Highmark "engage Highmark requires or UPMC and in a UPMC and single binding last best offer arbitration.” VP-3, states, summarizing argument regard In in Decree ‘In-Network’ to mean UPMC 'has Consent defines "[t]he Highmark.” contracted with’ Brief at 28. The definition UPMC has has In-Network does not state that not contracted with currently Highmark, nor does it inform whether UPMC a contract has Highmark; merely happens if it describes what a health care UPMC, Plan, High- provider, has contracted with a Health like like Moreover, supra noted in note Decree mark. as address- negotiated no current es the situation where there is in-network rate. thus, Highmark’s language, appears recitation of the contractual to be a mischaracterization of the definition of In-Network. rate) more than the designated CMS plan another health (which rate).4 pay up would the in-network

I no suggestion language see VP-3 to require intended UPMC to continue to contract with any entity; rather it simply addresses the rate applicable treatment of a consumer who is by Medicare covered addition to another health plan. Ambiguity only arises sentence when it is read to an entirely address unrelated concept contract continuation an to compensate effort acquiescence Commonwealth’s and UPMC’s Highmark’s request remove Medicare Advantage from VP-2.5 I respectfully disagree with the analysis criticism this as explained by my colleagues Majority in the Common First, reject wealth Court. I reading VP-3’s term “Medicare participating consumer” to include consumers with 138-41, 129 465-68; Medicare Advantage. Maj. Op. at at A.3d 29, 2015, Cmwlth. Op., cavil, Ct. June It beyond 27-28. all parties agree, that Medicare is an Advantage integral part system C, the Medicare as Part along with the federally Thus, operated Medicare Parts A and B. unmoored to the language provision, of the current eminently would be to refer to someone who Medicare reasonable has However, “Medicare participating nego consumer.” language distinguishes tiated of VP-1 between “Medicare” and “Medicare,” “Medicare such that Advantage,” the term Notably, correctly acknowledged during 4. as the Commonwealth Court hearing, provision VP-3 is not a standard coordination of benefits determining plan primary in it is that not is and which is instead, secondary; dictating apply it is what will rate to services provided patients regardless program to this subset of which is the N.T., 27, 2015, patient’s primary May insurance. at 398-99. Moreover, Highmark’s suggestion that VP-2 addresses non-Medicare entities and VP-3 addresses Medicare entities at fails. Brief above, any language requiring 34-35. As noted VP-3 does not contain any entity, merely UPMC to contract with but defines the rates to be patient applied Additionally, if has two a insurers. would be no there require reason to UPMC to for in-network rates with contract because, acknowledged, non-negotiable as all have CMS sets rates for Therefore, only apply Advantage, Medicare. if VP-3 can to Medicare as 32-33, Highmark argues, Highmark parties Brief at should have that used term rather than Medicare.

160 federally operat to the provision, only of this purposes applies B, Parts A from Medicare and and is distinct ed Medicare C, Medicare Part Un Advantage, private-insurer-operated interpretation, recognize we cannot our rules contract der distinction the two terms the drafters’ between VP-1 Glosser, 548, Pa. 235 Maloney it in v. ignore VP-3. See (1967) (observing that Contracts A.2d Williston is that “a word one sense to be used instructs throughout in the interpreted employed as same sense reasons”); 11 countervailing writing the absence Willi- § 32:6. ston on Contracts reading participating our of Medicare consumer

Secondly, A solely to those consumers with Medicare Parts applying as at- provision’s protect B with the intent is consistent is illegal suggested by Majority not groups risk Maj. Court. at 129 A.3d at 467- Op. the Commonwealth 68; 29, 2015, Op., My colleagues Ct. June at 28. Cmwlth. “Medicare accept argument reading the term Highmark’s consumer participating only participat- consumer” mean B require legal Parts A and ing Medicare would negotiating of UPMC rates with Medicare. This impossibility argument analysis. created to is a straw man obfuscate the above, is not requiring negotiate As VP-3 discussed rates but instead dictates the rate that a health care regarding charge for a provider can customer’s treatment and directs plan applies regard- that the “in-network” rate the health secondary is the insurer. primary less whether Medicare reading suggest any negotiate This does need plain Medicare, agree which all are set payment rates CMS. if

Finally, opined the Commonwealth Court the draft only to refer Medicare rather than a broader ers intended consumers, “it participating easily of Medicare then category ‘Medicare’ instead have stated of Medicare could 29, 2015, Op., Ct. June Re consumer.” Cmwlth. 27-28. the term spectfully, only the drafters could not have used consumers, addressing provision because the consum plan. addressing not the the sentence is Specifically, is coverages, one which multiple who have insurance ers Thus, Medicare. participating” adjective “Medicare an phrase It describing the consumer. would pur eliminate the phrase “Medicare,” the term pose use which de scribes not plan, person. The phrase cannot be in any drafted more limited fashion than “Medicare participat ing consumers.” discussed, previously Commonwealth,

As I agree that the at negotiations, outset to protect intended Medicare Advantage participants they specifically were included in listed VP-1 of the provision. Moreover, Advantage Medicare participants been should have included in protections provided the Consent Decree. Indeed, they protections were in the included the “continue to contract” until provision, High- the term was deleted at negotiations. mark’s request during It is not this within Court’s authority reinsert the protection for Medicare Advantage into the Population Vulnerable Provision it when was specifically parties. removed alsoWe read cannot an otherwise clear sentence a addressing separate concept as ambiguous merely to correct a concession during made diffi- cult I no negotiations. ambiguity VP-3, find which simply a in a problem addresses arises coordination of benefits situation.

While the contractual analysis permit result is to UPMC to terminate Advantage agreements its Medicare with Highmark, which turn result will UPMC doctors and hospitals being “out of network” for Advantage participants, necessarily does leave the Medi- Advantage participants care without recourse. The Common- wealth Court “a special observed CMS could allow enroll- period.” 29, 2015, ment In Op., Cmwlth. Ct. June at such case, Highmark’s participants could choose to stay Highmark plan their or switch to another in-network access to plan which would allow UPMC doctors 29, Cmwlth. Ct. Op., facilities. June 23-24. Additionally, testimony was to the presented Court that CMS can grant special individualized enrollments they N.T., customers assert that May who “confused.” 29, 2015, 365, June

27, 2015, 342, Op., see also Cmwlth. Ct. at 22. duty plain of this Court’s basic to decide

As a function II contract, Majority I dissent from Part of the meaning of a Court’s the Commonwealth order Opinion and would reverse must continue to that UPMC contract extent holds I Advantage. As would regarding Medicare basis, on this I need not address whether UPMC reverse Part of the right Majority to relief under III establishes of the addressing the fourth sentence Vulnerable Opinion at the outset provision. Finally, as noted Population join Majority Opinion addressing I Part opinion, IV Four of the Commonwealth Court Paragraphs Three and Order. joins concurring dissenting

Justice STEVENS opinion.

129A.3d 480 Pennsylvania, Appellee COMMONWEALTH v. Shayne WOODARD,Appellant.

Aric Supreme Pennsylvania. Court March 2015. Submitted Decided Dec. notes any state- ments Highmark subsequent to the entry decree do Moreover, not bind the Commonwealth. the Commonwealth points insistence, out that Highmark, UPMC’s not a is to party its own Consent to respect Decree. the transi- With tion plan filed with the Insurance the Common- Department, general wealth characterizes it as a description Highmark’s relationships business to the speak UPMC and does meaning of the lack populations vulnerable clause. As for its of response to 2014 in UPMC’s letters in the Fall of which it expressed the view that Highmark triggered had UPMC’s right Decrees, from the withdraw the Common- it obligation wealth asserts that was under no respond from every indicating letter that was “evaluating” taking particular course action. The Commonwealth denies that it ever that it accepted UPMC’s contention had the right Decrees, from withdraw the Consent and that its non- response to those cannot as a legal letters be construed formal agreement regard. with UPMC’s contention in this As the Court parties and the Commonwealth have recognized, a consent decree is a contract which has been judicial sanction, and, given such, it must interpreted be 134 governing interpre- general principles accordance with Master, Org. contracts. Int’l & Pilots tation all Mates Am., Masters, Am., & Org. No. 2 v. Int’l Mates Pilots Local Inc., 621, (1981). In 102, interpreting A.2d 624-25 497 Pa. 439 contract, courts is the terms of a the cardinal rule followed parties. Lesko v. contracting to ascertain the intent 115, 337, 609 Pa. 15 342 Hosp.-Bucks Cnty., A.3d Frankford (2011). unambiguous If the contractual are clear and terms face, on their then such terms are deemed best parties. of the intent of the v. Pa. Kripp Kripp, reflection (2004). 1159, If, however, the contractual 849 A.2d then resort to extrinsic ambiguous, terms are evidence meaning proper. Murphy Duquesne their v. ascertain Ghost, 418, 429 Holy 565 Pa. 777 A.2d Univ. The Of “ (2001). A ‘if ambiguous they contract’s terms are considered than subject interpretation to more one reasonable when ” to a set of facts.’ at 430. particular Id. applied matter, In present and as our threshold determi nation, the term “Medicare consumers” used in of the Consent Decree can clause

Notes

Notes May The language VP-3, clear in conjunction when read with the “In-Network,” defined term merely provides “regardless of whether [the consumers] have Medicare as their or primary secondary insurance[,]” “UPMC shall treat” the consumers “as In-Network,” pertains to “where a health care provider has contracted with a Health Plan to provide specified services negotiated at a rate.”2 UPMC Consent for reimbursement II(I). IV(A)(2), §§ The definition “In-Network” by limiting the consumer operates protect further “no more the co- charged can be than amount member co-insurance, his or charged by her Health deductible pay, Plan” instructs that the member “shall be refused in the contract based specified treatment services Finally, provides or her Plan.” Id. his Health payment specified “shall full for the negotiated rate Thus, out-of-pocket expense limits the Id. VP-3 services.”3

Case Details

Case Name: Commonwealth v. UPMC, Appeal of: UPMC

Court Name: Supreme Court of Pennsylvania

Date Published: Nov 30, 2015

Citation: 129 A.3d 441

Docket Number: 48 MAP 2015

Court Abbreviation: Pa.