Top court allows UPMC-Shapiro fight to continue

UPMC and Pennsylvania Attorney General Josh Shapiro are heading back to court in their battle over a consent decree requiring the Pittsburgh-based health network to take patients insured by Highmark Health.

The Pennsylvania Supreme Court on Tuesday reversed a lower court’s decision that would have ended the consent decree on schedule on June 30. Shapiro is fighting to have it extended indefinitely.

But the decision was not unanimous. The court ruled 4-3 in favor of Shapiro, finding fault with the reasoning of the Commonwealth Court. The ruling does not mean the decree will be extended, only that Commonwealth Court will have to rehear the case.

A date for a hearing has not been announced.

“As directed by the Supreme Court, my office will now make our case in Commonwealth Court on an expedited basis that modification of the end date is not just permitted — but necessary to ensure UPMC fulfills its role as a public charity and isn’t able to shun the very taxpayers whose tax dollars built their business,” Shapiro said in a statement.

UPMC was not immediately available to comment on the ruling.

The Supreme Court justices split over whether and to what extent the decree between UPMC and Highmark could be modified. The majority agreed it could and that, based on the decree’s language, there were no limits on how.

“Given the unbounded language of the Modification Provision, seasoned counsel likely foresaw, or should have foreseen, the possibility that significant alterations might be requested,” Justice David N. Wecht wrote for the majority.

In a dissenting opinion, Justice Max Baer said he agreed with the majority that Commonwealth Court ruled incorrectly, but that the decree’s modification clause should be limited. He wrote that changing the end date from June 30 to “indefinite” is not a modification.

“I conclude that the ‘modification’ sought by the Office of Attorney General is not a modification at all but, rather, an attempt to seek judicial intervention to eliminate the termination date and impose upon UPMC a permanent injunction requiring that it remain tethered to Highmark indefinitely,” Baer wrote.

The consent decree was reached in 2014 after UPMC and Highmark fell out over Highmark’s purchase of Allegheny Health System, a rival health system to UPMC. UPMC said it would stop accepting patients insured by Highmark. The consent decree created a five-year transition period.