Received 2/7/2019 2:33:43 PM Commonwealth Court of Pennsylvania

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,
By JOSH SHAPIRO,
Attorney General, et al.;
Petitioners,
v.
UPMC, A Nonprofit Corp., et al.;
Respondents.

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: No. 334 M.D. 2014
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COMMONWEALTH’S PETITION
TO MODIFY CONSENT DECREES

A.

INTRODUCTION

Pennsylvania’s nonprofit charitable healthcare systems are obliged to benefit
the public by following their stated charitable purposes. According to its mission
statement, the University of Pittsburgh Medical Center’s (hereinafter UPMC)
charitable purposes are to develop a high quality, cost effective and accessible health
care system advancing medical education and research while providing governance
and supervision to its subsidiary tertiary and community hospitals related to those
purposes. Based on these charitable purposes, the Commonwealth granted UPMC
its status as a charitable nonprofit health care institution and the public benefits that

 status affords. Consequently, UPMC may not pursue financial gain, commercial
success, or market expansion to the exclusion of its charitable purposes.
It is the Commonwealth’s responsibility to ensure that UPMC fully and
faithfully meets its mission and fulfills its charitable responsibilities. This petition
alleges UPMC’s conduct in a number of areas violates its stated mission making it
non-compliant with Pennsylvania’s charities laws.
The modification being sought in this petition is in the public interest as
UPMC’s actions, backed by its Board of Directors, are causing widespread
confusion among the public and personal hardships for many individual UPMC
patients. UPMC’s exorbitant executive salaries and perquisites in the form of
corporate jets and prestigious office space waste and divert charitable assets.
Moreover, UPMC’s misleading promotional campaigns and unnecessary litigation
damage UPMC’s goodwill and reputation, which were earned through public tax
exemptions, charitable donations and public financing.
Accordingly, Petitioner, the Commonwealth of Pennsylvania acting as parens
patriae through its Attorney General, Josh Shapiro (Commonwealth), respectfully
seeks modification of the Consent Decrees of record pursuant to paragraph IV.C.10.
This modification is necessary to maintain the Consent Decrees’ principles to protect
and promote the public interest through enforcing the respondents’ charitable
missions by: enabling open and affordable access to the respondents’ health care

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 services and products through negotiated contracts; requiring last best offer
arbitration when contract negotiations fail; and ensuring against the respondents’
unjust enrichment by prohibiting excessive and unreasonable charges and billing
practices inconsistent with the respondents’ status as public charities providing
medically necessary health care services to the public.
All parties (Office of Attorney General, Pennsylvania Insurance Department,
Pennsylvania Department of Health, Highmark and UPMC) agreed under paragraph
IV.C.10 of the Consent Decrees that if modification of the decrees would be in the
public interest, the party seeking modification should give notice to the other parties
and attempt to agree on the modification. If an agreement cannot be reached, the
party seeking modification may petition this Court for modification and shall bear
the burden of persuasion that the requested modification is in the public interest.
The Commonwealth has duly attempted to secure the respondents’ agreement
to modify their respective decrees for the past two years. Those attempts have
involved numerous meetings with both organizations involving the exchange of
concerns and justifications for the respondents’ conduct. The Attorney General gave
both Highmark and UPMC a formal proposal to modify the existing Consent
Decrees. Significantly, Highmark did agree to the terms, provided UPMC would be
subject to those same terms. However, UPMC was unwilling to agree to these same
modifications. Consequently, court intervention is now required.

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 As such, through the actions alleged more fully within, UPMC is operating in
violation of its stated charitable purposes as well as the Solicitation of Funds for
Charitable Purposes Act, 10 P.S. §§ 162.1 et seq., the Nonprofit Corporation Law of
1988, 15 Pa.C.S. §§ 5101 et seq., and the Unfair Trade Practices and Consumer
Protection Law, 73 P.S. §§ 201-1 et seq.
UPMC’s failure to fulfill all of its charitable obligations in their entirety, and
comply with other applicable law compels the requested relief to protect the health
and welfare of the people of Pennsylvania.
In summary, this petition will address: UPMC’s stated charitable purposes;
public financial support for UPMC; history of the case; UPMC’s departure from its
charitable purposes; UPMC’s expansion; and legal causes of action.
The Commonwealth offers the following in support.

B. UPMC’S STATED CHARITABLE PURPOSES AND
REPRESENTATIONS TO THE PUBLIC
The foundation for seeking this modification is primarily based on UPMC’s
status as a charitable nonprofit health care institution governed by Pennsylvania’s
charitable laws. UPMC’s status requires that it operate consistent with its purpose.
1.

UPMC’s Amended and Restated Articles of Incorporation set forth

UPMC’s stated charitable purposes as follows:

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 [T]o engage in the development of human and physical resources
and organizations appropriate to support the advancement of
programs in health care, the training of professions in the health
care fields, and medical research, such activities occurring in the
regional, national and international communities.
The
Corporation is organized and will be operated exclusively for
charitable, educational and scientific purposes within the
meaning of Section 501(c)(3) of the Internal Revenue Code of
1986, as amended (the “Code”) by operating for the benefit of,
to perform the functions of and to carry out the purposes of the
University of Pittsburgh of the Commonwealth System of Higher
Education (“University of Pittsburgh”), UPMC Presbyterian, and
other hospitals, health care organizations and health care systems
which are (1) described in Sections 501(c)(3) and 509(a)(1)(2) or
(3); (2) are affiliated with the Corporation, University of
Pittsburgh and UPMC Presbyterian in developing a high
quality, cost effective and accessible health care system in
advancing medical education and research; and (3) which will
have the Corporation serving as their sole member or
shareholder. Further, the Corporation provides governance
and supervision to a system which consists of a number of
subsidiary corporations, including, among others, both
tertiary and community hospitals. The Corporation shall
guide, direct, develop and support such activities as may be
related to the aforedescribed purposes, as well to the
construction, purchase, ownership, maintenance, operation and
leasing of one or more hospitals and related facilities. Solely for
the above purposes, and without otherwise limiting its power, the
Corporation is empowered to exercise all rights and powers
conferred by the laws of the Commonwealth of Pennsylvania
upon not-for-profit corporations. The Corporation does not
contemplate pecuniary gain for profit, incidental or
otherwise (emphasis added). See Exhibit A attached.
2.

At all times relevant and material hereto, UPMC has operated as the

parent and controlling member of a nonprofit academic medical center and

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 integrated health care delivery system supporting the health care, research and
educational services of its constituent hospitals and providers.
3.

UPMC and all of its constituent nonprofit charitable hospitals have

been recognized as tax-exempt entities under Section 501(c)(3) of the Internal
Revenue Code (IRC) and are all classified as public charities under Section 509(a)(3)
of the IRC.
4.

UPMC and all of its constituent nonprofit, charitable hospitals have

registered as institutions of purely public charity under the Institutions of Purely
Public Charity Act, 10 P.S. §§ 371 et seq., and are exempt from Pennsylvania
income, sales, use and local property taxes.
5.

In addition to their stated charitable purposes, UPMC also has a

Patient’s Bill of Rights required by the DOH at 28 Pa.Code § 103.22, published in
various handbooks of its subsidiaries, posted in their offices, and published on the
UPMC website as its “Patient Rights & Responsibilities at UPMC Hospitals” which
provides in pertinent part:
At UPMC, service to our patients is our top priority. We are
committed to making your stay as pleasant as possible. We have
adopted the following Patient Bill of Rights to protect the
interests and promote the well-being of our patients.
. . .
A patient has the right to medical and nursing services
without discrimination based upon race, color, religion,
ancestry, national origin, age, sex, genetics, sexual orientation,

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 gender identity, marital status, familial status, disability, veteran
status, or any other legally protected group status.1
. . .
Make Payment for Services: You are responsible for all services
provided to you by UPMC. Payment may be made through
third-party payers (such as your insurance company), by
self-payment, or by making other payment arrangements for
services not covered by insurance (emphasis added).
6.

An additional representation made by UPMC can be found at its web

site at www.upmc.com through which it solicits the public for donations of financial
support and volunteers, answering the question “Why Support UPMC?” as follows:
Life Changing Medicine. Every day at UPMC lives are saved
and quality of life is restored. We provide hope during difficult
illnesses and compassion for every patient.
We are deeply committed to the people who make up our
communities and to making sure that everyone who comes
through our doors has access to the very best, most advanced
health care available.
. . .

1

https://www.upmc.com/patients-visitors/patient-info/Pages/rights-andresponsibilities.aspx.
Since the entry of its Consent Decree in 2014 UPMC deleted “source of payment”
from the non-discrimination clause within the above-cited paragraph 5 of “Patient
Rights.” The non-discrimination provision based upon a patient’s source of payment
under the “Patient Bill of Rights” is provided for under 28 Pa. Code § 103.22(b)(13)
and UPMC’s deletion thereof is subject to disciplinary actions pursuant to 28 Pa.
Code § 103.24.

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 It is our mission to provide outstanding patient care and to
shape tomorrow’s health care through clinical innovation,
biomedical and health services research, and education.
No matter the size or type, all gifts are meaningful and
provide important support for all of the programs at UPMC.
Please consider giving today (emphasis added).2

C. PUBLIC FINANCIAL SUPPORT FOR UPMC
As a charitable organization committed to public benefit, UPMC has enjoyed
and benefitted from strong public financial support throughout its existence.
7.

Some examples of the public’s financial support for UPMC include:
a.

Since at least 1952, the Hillman Company and the Hillman
Family Foundations have donated a total of $77,098,497
to benefit the public-at-large through what are today
various UPMC entities and health care initiatives,
including the UPMC Hillman Cancer Center.

The

Hillman’s never intended that their donations would be
used to only treat patients with certain types of insurance.
b.

In 2002, Highmark, whose funds come from its premium
paying individual and employer customers, donated
$250,000,000 as part of a joint initiative with UPMC, the

2

https://www.upmc.com/about/support/why/Pages/default.aspx

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 Children’s Hospital of Pittsburgh (now the Children’s
Hospital of Pittsburgh of UPMC), the St. Francis Health
System, and the Jameson Health System (now UPMC
Jameson), as follows:
i.

$233,000,000 to the Children’s Hospital of
Pittsburgh for the purchase of its Lawrenceville site
and construction of a new hospital and pediatric
research facility; and

ii.

$17,000,000 to the Jameson Health System (now
UPMC Jameson) for the acquisition of the St.
Francis Hospital of New Castle; and

c.

Since 2001 Highmark has donated another $4,161,600 to
the Children’s Hospital or its foundation to benefit the
public-at-large.

8.

From July 1, 2005 through June 30, 2017, UPMC reported in its IRS

Form 990 UPMC Group returns that it has received $1,272,514,014 in public and
private contributions and grants to support its charitable health care, education and
research missions.
9.

From its inception UPMC has additionally benefitted from hundreds of

millions of dollars in accumulated state and federal income tax exemptions; city and

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 county property tax exemptions; and low-interest, tax-exempt government bonds
and debt financing. UPMC receives approximately $40 million in annual real estate
tax exemptions in Allegheny County alone from Allegheny County, the City of
Pittsburgh, the Pittsburgh School District and the Carnegie Library.
10.

The public’s support has not gone unrewarded in that UPMC has grown

into one of Pennsylvania’s largest health care providers and health care insurers.
11.

The public has paid for UPMC’s dramatic expansion, yet thousands of

those taxpayers who built UPMC are now being shut out of the very care they helped
pay for.

D. HISTORY
In addressing the current matter, it is important to discuss the conduct that
led to the current Consent Decrees and efforts that resulted in the second mediated
agreement.
Conduct Leading Up to Consent Decrees
12.

This case arose out of a dispute between UPMC and Highmark, two of

Pennsylvania’s largest charitable institutions, and has spread to impact healthcare
consumers across the Commonwealth.

It began in the spring of 2011 after

Highmark and UPMC were unable to agree on new health care provider contracts

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 and Highmark announced its intention to acquire control of the West Penn
Allegheny Health System (“West Penn Allegheny”).
13.

West Penn Allegheny was UPMC’s main health care provider

competitor in southwestern Pennsylvania and the Highmark/West Penn Allegheny
affiliation resulted in the region’s second Integrated Delivery and Finance System
(IDFS) 3 – UPMC was the region’s first.
14.

UPMC reacted to the Highmark/West Penn Allegheny affiliation by

refusing to renew its health insurance provider contracts due to expire after
December 31, 2012 4 on the basis that Highmark had become UPMC’s competitor
as a provider. UPMC took this position despite the fact that UPMC had been
competing against Highmark as a health care insurer for more than a decade
without similar objection from Highmark, and both UPMC and Highmark are
charitable institutions committed to providing the public with access to highquality, cost effective health care.
15.

In order to protect the interests of the general public caught in the

middle of the respondents’ contractual dispute, an agreement was negotiated
between UPMC and Highmark through the auspices of then Governor Tom Corbett

An “Integrated Delivery and Finance System” is comprised of health care providers
and health care insurers under common control.
3

4

The subject contracts had been in effect since 2002.

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 on May 1, 2012 (Mediated Agreement). The Mediated Agreement was intended to
provide members of the public with additional time, i.e., until December 31, 2014,
to transition insurance coverages to include the medical providers of their choice.
Otherwise, thousands of patients risked disruptions in the course of their medical
care and/or exposure to UPMC’s substantially higher “Out-of-Network” charges.
16.

On January 1, 2013, Highmark re-launched its Community Blue Health

Plan which was exempt from the anti-tiering and anti-steering5 provisions under the
respondents’ existing 2002 contract as well as the Mediated Agreement. UPMC
reacted by refusing treatment to Highmark Community Blue subscribers under any
circumstance – even when those subscribers attempted to forego their Highmark
insurance coverage and pay UPMC’s charges directly out-of-pocket. UPMC’s
refusal to treat Highmark Community Blue subscribers occasioned considerable

5

An anti-tiering/anti-steering provision is a contract provision between a health
plan, like Highmark, and a health provider, like UPMC, which prohibits the health
plan from providing customers with the option of using less costly health care
providers while “steering” them away from more costly providers. Plans with these
types of provisions are usually sold at a discount to plans that offer unfettered access
to any provider. Anti-tiering and anti-steering provisions have recently been
successfully challenged by the United States Department of Justice and the North
Carolina Attorney General as anticompetitive. As part of a Joint Stipulation and
Order Regarding a Proposed Final Judgment, the provisions were rendered void in
existing health care provider contracts with health plans and their use was prohibited
in future health care provider contracts with health plans. United States v. CharlotteMecklenburg Hospital Authority d/b/a/ Carolinas Healthcare System, 3:16-cv00311 (W.D. NC Nov. 5, 2018)

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 hardship on Community Blue patients, many of whom were forced to find other
providers.6
17.

UPMC and Highmark then engaged in aggressive and often misleading

marketing campaigns which caused widespread public confusion and uncertainty as
to the cost and access of Highmark subscribers to their UPMC physicians.
18.

In response, the “Patients First Initiative” was formed pulling together

the Office of Attorney General (OAG), the Pennsylvania Insurance Department
(PID) and the Pennsylvania Department of Health (DOH) to resolve the disrupted
health care and In-Network access issues presented. After lengthy negotiations
UPMC and Highmark agreed upon the terms reflected in the reciprocal Consent

6

By way of example, UPMC: a) Refused to write and/or refill prescriptions for
medications; b) Refused to schedule medical appointments and/or procedures,
including pre and post-operative procedures and examinations; c) Refused obstetrics
and gynecological services to long-term patients; d) Refused non-emergency based
follow-up treatment to a patient admitted through the emergency room after learning
that the patient subscribed to Highmark Community Blue; e) Advised a transplant
patient who had been on the waiting list for four (4) years that he would have to find
another provider f) Refused treatment to a patient with multiple health insurance
policies because Highmark Community Blue was among the multiple policies held;
and g) Refused to treat Highmark Community Blue patients, on a non-emergency
basis, even though they offered to pay UPMC’s charges out-of-pocket with cash.

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 Decrees approved by this Honorable Court on July 1, 2014, including for future
modification of the Consent Decrees to promote the public’s interest.7
19.

In spite of the Consent Decrees, however, UPMC and Highmark have

continuously engaged in recurrent disputes that required informal mediations by the
Office of Attorney General and other state agencies and foretell the negative
consequences that will be suffered upon the public after the expiration of the existing
Consent Decrees.8
The Second Mediated Agreement
20.

On or about December 20, 2017, a Second Mediated Agreement was

negotiated between UPMC and Highmark through the auspices of Governor Tom
Wolf. Despite the administration’s best efforts, the agreement will only apply to
Highmark’s commercial insurance products – it does not include Highmark’s
Medicare Advantage products important to seniors or any other health plan UPMC
decides it disfavors.
21.

Moreover, this latest agreement will only extend In-Network access to

certain UPMC specialty and sole provider community hospitals for a period of two

7

Copies of each of the respective Consent Decrees are attached as Exhibits B and
C.
8

In addition to the recurrent disputes recounted here, the record reflects the
Commonwealth’s three past formal enforcement actions before this Court – none of
those enforcement actions involved the modification relief requested here.

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 to five years after June 30, 2019 and retreats from broader protections afforded under
the Consent Decrees concerning emergency room and Out-of-Network rates as well
as balance billing practices.
22.

As a result, despite the past assurances from UPMC that seniors would

never be impacted by their contractual disputes, UPMC has failed to ensure that
senior citizens and other vulnerable members of the public will continue to have
affordable access to their health care providers.
23.

In light of the above circumstances and public statements by UPMC,

the expiration of the Consent Decrees can only be expected to result in UPMC’s
eventual refusal to contract with other health insurers. Such refusal will result in
more patients seeking access patients seeking access to UPMC on a cost-prohibitive
Out-of-Network basis. These circumstances are in direct conflict with UPMC’s
status as a charitable institution developed through decades of public donations, taxexemptions, and debt financing.

E. UPMC’S DEPARTURE FROM ITS CHARITABLE PURPOSES
As a charitable nonprofit health care institution, UPMC must continuously
satisfy all of its obligations to the public, not only those that further its commercial
goals. It is not a balancing test, UPMC’s obligations to the public under state
charities laws are not abated when a consumer has a health plan UPMC disfavors.

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 Although UPMC may receive reasonable compensation for the value of its services,
it may not profit and is prohibited from private, pecuniary gain – the financial
success of its health care operations must inure to the benefit of the public-at-large.
Disputed Payments Concerning Highmark’s Out of Network Riders
24.

Under the Consent Decrees, UPMC agreed that Highmark subscribers

would pay no more than 60% of charges when Highmark subscribers sought care
from UPMC on an Out-of-Network basis. Highmark created Out-of-Network policy
riders offered to some of its self-insured employers under which Highmark would
pay the 60% of Out-of-Network charges, less the usual co-payments and coinsurance. UPMC has thwarted the efforts of patients to use this rider which caused
confusion as to:
a.

How much insurance coverage was actually provided by
Highmark’s Out-of-Network Riders in addition to a
patient’s applicable deductible, co-payment and/or coinsurance;

b.

Whether patients must pay all 60% of UPMC’s Out-ofNetwork charges “up front” pursuant to paragraph
IV(A)(6) of the decrees before receiving any treatment and
before being reimbursed by Highmark;

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 c.

Whether Highmark is obliged to pay UPMC directly under
the prompt payment provision of paragraph IV(A)(6) of
the Consent Decrees; and/or

d.

Whether UPMC must accept Highmark’s pledge of
prompt payment in lieu of demanding “up front” payments
from patients for the entire 60% of UPMC’s Out-ofNetwork charges or only the patients’ applicable
deductibles, co-payments and/or co-insurance.

25.

The above issues imposed both financial hardships, treatment denials

and/or treatment delays upon Out-of-Network patients, for example:
a.

A patient had to change hospitals to have required surgery
performed in February 2017 on an In-Network basis by her
physician in order to avoid paying UPMC $11,816.67 in
up-front charges; this was only possible because her
physician was an independent provider with privileges at
both UPMC and West Penn Hospital.

b.

Another patient was required to pay UPMC $65,181.70 in
“up front” charges before UPMC would perform time
sensitive brain surgery in November 2015 to remove a cyst
that could lead to the patient’s coma and sudden death.

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 The patient paid this amount to avoid treatment delay
despite the fact that UPMC completed a “UPMC Patient
In-Network Attestation” form for In-Network coverage
under the cancer/oncology provision of the Consent
Decree. UPMC ultimately reimbursed the patient months
after the surgery and the unnecessary and exorbitant fees.
26.

The foregoing circumstances evidence the Consent Decrees’ material

shortcomings in securing the respondents compliance with their stated charitable
purposes and support the merits of the Commonwealth’s requested modifications.

Refusal to Contract and Practices to Increase Revenue
27.

UPMC has made clear that it has no intention of contracting with

Highmark concerning any of Highmark’s Medicare Advantage plans, after June 30,
2019.
28.

UPMC’s latest refusal to contract with Highmark’s Medicare

Advantage plans after June 30, 2019 constitutes a reversal of prior representations
to the public and the Commonwealth that seniors would never be affected by its
contractual disputes with Highmark – that seniors would always have In-Network
access to their UPMC physicians. See Exhibit D attached.
29.

UPMC’s refusal to contract with Highmark has the practical effect of

denying cost-effective In-Network access to a substantial segment of the very public

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 that is subsidizing and helping to sustain UPMC’s charitable mission. Highmark has
more than 100,000 Medicare Advantage participants in Pennsylvania.
30.

Additionally, UPMC has largely refused to commit its newly acquired

health care systems to contracting with all health insurers going forward, saying only
that it will agree to contract if health plans are willing to pay UPMC’s self-defined,
often higher, market rates.
31.

UPMC also employs practices that increase its revenue without

apparent regard for the increase on the costs of the region’s health care, including,
but not limited to:
a.

Transferring medical procedures to its higher cost
specialty providers;

b.

Utilizing “provider based,” “facilities based” and/or
“hospital based” billing practices that permit increased
service charges in facilities where they had not been
before;

c.

Balance billing Out-of-Network patients even when the
insurance payments UPMC receives generally exceed the
actual costs of UPMC’s care; and

d.

Insisting upon full “up front” payments from Out-ofNetwork insureds before rendering any medical services.

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 Unfair and Misleading Marketing
32.

With large numbers of Pennsylvanians in health plans disfavored by

UPMC, UPMC had an incentive to convince people to abandon those disfavored
plans.
33.

On or about July 17, 2017, the UPMC Health Plan circulated a

promotional flyer that offered employers within the service area of UPMC
Susquehanna the opportunity to “[p]ut a lock on health care costs.”
34.

The promotional flyer represented that:
[w]ith this special, limited-time offer from UPMC Health
Plan, you can lock in to single-digit premium increases
through 2020. Given the double-digit increases during the
last decade, this offer could translate to massive savings
for your organization. Meanwhile, with UPMC Health
Plan, your employees will be getting extensive in-network
access to hospitals and providers, affordable plan options,
and world-class local customer service they can count on.

See Exhibit E attached.
35.

However, in the far lower-right hand corner of the flyer under “Terms

and conditions” the flyer noted that, “UPMC Health Plan may, at its sole discretion,
cancel, amend, modify, revoke, terminate or suspend this program at any time.
Participation in this program and/or election of the offer is not a guarantee of
continued plan availability or renewal.”

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 36.

UPMC also markets a limited UPMC Health Plan such that subscribers

have unwittingly purchased coverage for UPMC’s community hospitals that does
not include In-Network access to UPMC’s premier and/or exception 9 hospitals,
resulting in unexpected and much more costly Out-of-Network charges should
subscribers need heightened levels of care from UPMC’s premier or exception
hospital providers.
Access and Treatment Denials
37.

Despite UPMC’s representation that it is “deeply committed to the

people who make up our communities,” UPMC does not ensure “that everyone who
comes through [its] doors has access to the very best, most advanced health care
available.” Rather, only certain people who carry the right In-Network insurance
card or are able to pay up front and in full for non-emergency medical services get
access to UPMC’s health care.

Exception Hospitals are identified in Para. 5 of the Consent Decrees as “…Western
Psychiatric Institute and Clinic, UPMC Bedford, UPMC Venango
(Northwest),UPMC/Hamot and UPMC/Altoona, UPMC Horizon and any facility,
any physician, facility or other provider services located outside the Greater
Pittsburgh Area currently owned or acquired in the future by UPMC, or with whom
UPMC has an agreement to handle provider contracting such as, but not limited to
Kane Hospital, or any other physician or facility outside the Greater Pittsburgh Area
determined by DOH to be essential to meet local community needs, by July 15,
2014...”
9

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 Individuals:
a.

An established UPMC cancer patient with a rare and
aggressive form of Uterine Carcinosarcoma has been
advised that there is an 85% chance of her disease
recurring within two years of her recently completed
initial treatments, but nevertheless, was advised in July
2018 that she will no longer be able to see her UPMC
oncologists In-Network after June 30, 2019 unless she
switches

from her

husband’s

employer

provided

Highmark health insurance to a non-Highmark InNetwork insurance plan or prepays for the services she
needs.
b.

An established UPMC kidney transplant patient with a
history of complications from the removal of her ovaries
and fallopian tubes is under the care of three UPMC
specialists, but will no longer be able to see her UPMC
transplant, gynecological and pain specialists after June
30, 2019 unless she changes to a non-Highmark InNetwork insurance plan with UPMC or prepays for the
medical services she needs.

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 c. An established UPMC patient with five types of cancer
from her experience as a World Trade Center first
responder will not be able to continue to access UPMC
facilities for treatments and procedures despite having
three layers of available insurance, which included
Highmark, and will be forced to travel more than 90 miles
to receive specialized care or prepays for the services she
needs.
d. An established UPMC patient with Parkinson’s disease,
who has an Allegheny Health Network primary care
physician and who treats with a UPMC Movement
Disorder Specialist, which is critical to her treatment, will
lose access to her UPMC Movement Disorder Specialist
and be forced to travel over 90 miles to receive this
specialized care or prepay for the medical services she
needs.
Employers:
38.

On or about August 14, 2017, UPMC Susquehanna notified patients of

its Susquehanna Medical Group physician practice, who were employees of a
Williamsport area manufacturing business, PMF Industries, that it was discontinuing

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 its access to the physician practice despite PMF’s insurer having a contract with the
physician practice. 10 PMF’s insurer calculated hospital reimbursements using
reference-based pricing and did not have a separate hospital contract. UPMC
contended that:
a.

Although PMF employees’ physicians visits would be
covered under the physician practice contract, any hospital
care the employees could need would not be covered as
PMF Industries did not have a provider contract with
UPMC Susquehanna for hospital services;

b.

Although PMF employees’ physician visits would be
covered under the physician practice contract, any tests or
other services including, but not limited to, outpatient and
hospital-based services, such as labs, imaging and cancer
care, would not be covered as PMF did not have a provider
contract with UPMC Susquehanna for these hospitalbased services and PMF employees would be billed at full
charges for these services;

These actions are reminiscent of UPMC’s complete refusal to treat any of
Highmark’s Community Blue subscribers during 2013 and 2014 and predict
UPMC’s future conduct.
10

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 c.

The standard approach within the entire healthcare
industry was to negotiate mutually agreed upon contracts
for both physician and hospital services;

d.

In order to eliminate confusion about which services were
covered and which were not, UPMC Susquehanna decided
to discontinue access to the physician group to PMF
employees until the matter was resolved to protect the
employees against the risk of large out-of-pocket
expenses;

e.

After 30 days Susquehanna Health Medical Group
physicians would stop caring for their medical needs until
further notice;

f.

If the employee felt he or she still required ongoing
medical care they should seek an alternative physician
provider immediately and that UPMC Susquehanna would
assist in transferring their medical records to another
provider if requested; and

g.

That UPMC Susquehanna remained hopeful that PMF
Industries would reconsider its position so that they could

- 25 -

 work together again to help meet the needs of the
employee and his or her loved ones.11
See Exhibit F attached.
39.

Like PMF, many employers purchase health insurance for their

employees. Also like PMF, many other employers look at innovative health plan
products, like Reference Based Pricing to lower their health care costs.
40.

Reference Based Pricing means using prices hospitals actually receive,

i.e., the market based prices UPMC says it desires, as opposed to the “chargemaster
prices” hospitals often open with in contract negotiations.
41.

UPMC rejects efforts by employers to use reference based prices or

other cost comparison tools, like tiering and steering mentioned above, as a means
to deny access to patients with certain disfavored health plans.
42.

In addition to the denial of access to Highmark patients, in cases where

an employer determines that another member of the Blue Cross and Blue Shield
Association, such as Capital Blue Cross or Anthem or other health plan provides the
best, most cost-effective health insurance for its employees, those employers and
their employees will be forced to pay up front and in full UPMC’s estimated charges
for non-emergency health care services, even when the estimated charges may be in

11

PMF Industries subsequently secured access to both the physician group and
hospital through another insurer, but at a higher cost.

- 26 -

 the tens of thousands of dollars and in excess of UPMC’s costs and reasonable value
of services provided.
Medicare and Older Pennsylvanians:
43.

UPMC’s decision to not participate in certain Highmark or other Blue

Cross Blue Shield Medicare Advantage plans imposes special costs and hardships
on seniors.
44.

If a Medicare participating patient should desire to switch to a new

health care insurer to retain In-Network access to their UPMC physician, they risk
being medically underwritten and the possibility of higher insurance premiums
should they have a pre-existing medical condition, a circumstance that many senior
citizens on fixed incomes can ill-afford. For example:
a.

After 12 months in a Medicare Advantage plan, seniors
cannot switch to a Medicare Supplement plan (Medigap)
without the possibility of being medically underwritten for
pre-existing conditions, be subjected to a six-month “look
back period” before coverage begins, and be required to
pay higher premiums and other costs as a result of those
conditions. 12

12

Original Medicare is not a part of the Affordable Care Act (ACA) and is not
subject to the ACA’s prohibition against medical underwriting for pre-existing
conditions.

- 27 -

 b.

Seniors with pending surgeries, costly diagnostic tests,
chronic illnesses, and those living in nursing homes or
assisted living facilities, who desire to change to a
Medigap insurer, may simply have their applications
denied outright.

c.

Seniors with employer or union coverage may not be able
to switch back from a Medicare Advantage plan after
changing insurers and could also lose coverage for their
spouse and dependents.

d.

Although Medicare Advantage plans are required to cover
pre-existing conditions, they often entail restrictive
provider networks and coverage differences that can also
result in higher deductibles, co-pays and/or premiums.

e.

For example, an established UPMC Medicare patient
diagnosed with Lymphocytic Leukemia who receives
blood transfusions every two weeks at the Hillman Cancer
Center, and could suffer a fatal “brain bleed” should she
stop treatment, who has a Highmark Freedom Blue PPO
Medicare Advantage Plan, has been told she will no longer
be able to see her oncologist after June 30, 2019 unless she

- 28 -

 pays for UPMC’s services up-front, which can cost
upwards of $100,000; financial constraints prevent this
patient from using other insurers due to higher co-pays for
specialist visits and routine scans as well as more
restrictive Out-of-Network coverage.
Emergency:
45.

Further, under Section 1395dd of the Emergency Medical Treatment

and Labor Act (EMTALA), 42 U.S.C. § 1395dd, hospitals are required to treat all
persons who come to an emergency room when in an emergency medical condition
or in labor.
46.

UPMC acquires more than 60% of its patient admissions through its

emergency rooms and when a patient is treated for an emergency condition or
admitted for an emergency, the patient’s health plan is obligated to pay for the
patient’s care.
47.

Since patients in an emergency medical condition often have no control

over the emergency room they are taken to when their emergency occurs, it is
common for patients to be taken to emergency rooms in hospitals which are outside
the networks of their health plans.
48.

In those situations, the health plan pays the bill of the hospital at rates

negotiated on an ad hoc basis.

- 29 -

 49.

In such circumstances for commercial patients13, UPMC tenders bills

to the health plans at its full charges, representing UPMC’s highest prices, and each
bill is individually negotiated. If the price negotiated is below UPMC’s posted
chargemaster price, the patient may be billed for this difference or balance.
50.

If UPMC can deny contracting with Highmark (or any other health

insurer for that matter), those insurer’s members will nonetheless still arrive at
UPMC’s emergency rooms through no choice of their own; those insurers and
UPMC will negotiate each bill; and those insurers, employers in the case of selfinsured employers, and their members will pay significantly higher prices for
UPMC’s emergency care.
51.

These higher costs will be borne immediately by all employers who are

self-insured under an Administrative Services Only (ASO) contract with Highmark
or another disfavored health plan, while employers who are fully insured with
Highmark will pay higher insurance rates in the future as the higher costs are
incorporated into their future rates. Imposing these higher costs conflicts with
UMC’s stated charitable mission.
Intent to Require All Out-of-Network Patients to Pay Up-Front and InFull

13

Medicare patients are reimbursed according to the Medicare Fee Schedule and
Medicare patients cannot be balanced bill for the difference between the Medicare
Fee Schedule and UPMC’s Chargemaster prices. 35 P.S. § 449.34.

- 30 -

 52.

UPMC has made clear that after the expiration of its Consent Decree

on June 30, 2019, all Out-of-Network patients regardless of their insurer will be
required to pay all of UPMC’s expected charges for their non-emergency health care
services up-front and in-full before receiving any services from UPMC providers.14
53.

Although UPMC’s Out-of-Network charges for Medicare patients will

be limited to the applicable rates established by the Centers for Medicare and
Medicaid (CMS), UPMC’s up-front and in-full payment demand will effectively
deny access to all those who lack the financial wherewithal and ability to pay the
Medicare rates up-front or in-full.
54.

All non-Medicare patients will be in an even more difficult position as

they will be required to pay UPMC’s charges in-advance and in-full without the
limitation of CMS’s applicable rates or the existing 60% limitation under paragraph
IV.A.6. of UPMC’s Consent Decree.
55.

UPMC’s refusal to entertain any non-contract “referenced based

pricing” coupled with its intended up-front and in-full billing practice post-June 30,
2019 will result in both UPMC’s unjust enrichment as patients will be forced to pay
amounts in excess of the reasonable value of UPMC’s services and denial of care to

14

https://www.upmc.com/-/media/upmc/patients-families/choice-isvital/medicareadvancepay.pdf

- 31 -

 patients in contradiction to UPMC’s stated charitable mission and representations to
the public.15
Assets, Spending and Compensation Practices
UPMC’s Current Financial Success Belies Its Need to Deny Care to
Anyone
56.

At its fiscal year ended December 31, 2017, UPMC’s consolidated

financial statements reported:
a.

$5,601,837,000 in net assets which included $529,631,000 in
cash and cash equivalents consisting of savings and temporary
cash investments, as well as $5,072,206,000 in publicly traded
securities and other investments, all with maturities of three days
or less that are unrestricted as to their expenditure.

b.

Further analysis of UPMC’s consolidated financial statements
reveals that after satisfying all of its current liabilities, i.e.,
liabilities payable within one year, UPMC reports that it will still
have $1,462,477,000 in cash and cash equivalents as well as
publicly traded securities and other investments with maturities
of three days or less that are unrestricted as to their expenditure.

15

Temple University Hospital, Inc., v. Healthcare Management Alternatives, Inc.,
832 A.2d 501 (Pa. Super. Ct., 2003)(Absent express agreement to pay, the law
implies a promise to pay a reasonable fee for a health provider’s services based upon
what the services are ordinarily worth).

- 32 -

 57.

As such, UPMC’s financial position and large share of the provider and

insurance markets belie any contention that contracting with Highmark, or any other
competing health provider or insurer, will place its charitable assets and mission at
any unreasonable risk.
58.

In fact, UPMC was able to obtain its financial position and large share

of the provider and insurance markets while subject to its Consent Decree and while
providing access to seniors with Highmark Medicare Advantage plans.
59.

UPMC’s executives and governing board appear to simply prefer the

status and perquisites associated with purely commercial pursuits rather than
furthering the public’s interests in high quality, cost-effective and accessible health
care.
60.

UPMC’s spending and compensation practices mimic material aspects

of a purely commercial enterprise in that:
a.

UPMC’s CEO receives in excess of $6 million in annual
compensation and UPMC has 31 executives who receive
in excess of $1 million in compensation. A comparison of
UPMC’s IRS Forms 990 with other nonprofit charitable
health care systems reveals that UPMC pays executive
compensation well-above that of its nonprofit competitors,

- 33 -

 calling into question whether the compensation is
unreasonably excessive;
b.

UPMC’s corporate offices occupy the top floors of the
U.S. Steel Building in Pittsburgh, one of the city’s most
prestigious and costly locations.

Wasteful Expenditures of Charitable Resources
61.

In recent years, UPMC has made a series of decisions about how to use

its significant charitable resources. Many of those decisions are clearly motivated
by commercial gain without regard to UPMC’s charitable purposes, as evidenced by
the duplicative services it is creating. For example:
a.

UPMC’s $250M construction of its UPMC East hospital
within 1.2 miles of Highmark’s Forbes Regional Hospital;

b.

UPMC’s proposed construction of its UPMC South
hospital in close proximity to Highmark’s Jefferson
Regional Medical Center;

c.

UPMC’s recently announced $2 billion expansion plan to
construct three specialty-care hospitals in areas already
concentrated with existing health care providers within
Pittsburgh’s city limits.

- 34 -

 62.

In addition to the wasteful duplications alleged, the above-

circumstances risk reducing the quality of the respondents’ services through the suboptimization that occurs when the limited number of medical procedures required to
develop expertise is divided among two or more providers.
63.

These additional wasteful expenditures will be paid for by taxpayers,

employers and those who purchase health insurance and health care services
individually. They pay once through the tax benefits and charitable donations they
provide to UPMC and they pay a second time through higher prices for inefficiently
used, duplicative facilities owned by UPMC and other providers. Some who pay
twice are then denied care at the very UPMC facilities they helped build.

F. UPMC’S EXPANSION
The effects on the public of UPMC’s conduct were previously limited to the
greater Pittsburgh area. However, with its expansion across the Commonwealth,
even more patients and payers will experience these negative impacts.
64.

Since the implementation of the Consent Decrees, UPMC has acquired

control of the following health care providers and grown well beyond its initial
southwestern Pennsylvania footprint:
a.

Susquehanna Health System, in Williamsport, PA, now
operating as UPMC Susquehanna;

- 35 -

 b.

Jameson Health System, in New Castle, PA, now
operating as UPMC Jameson;

c.

Pinnacle Health System, in Harrisburg, PA, now operating
as UPMC Pinnacle;

d.

A joint venture with the Reading Health System, in
Reading, PA, now known as Tower Health that commits
the system to the UPMC Health Plan;

65.

e.

Charles Cole Memorial Hospital in Coudersport, PA; and

f.

Somerset Hospital in Somerset, PA.

Three of the above transactions involve significant additional

acquisitions:
a.

UPMC Pinnacle has acquired control of five additional
hospitals in Cumberland, York and Lancaster Counties; 16

b.

Reading Health System/Tower Health has acquired
control

of

five

additional

hospitals

in

Chester,

Montgomery and Philadelphia Counties; 17 and

16

Carlisle Hospital, York Memorial Hospital, Heart of Lancaster Hospital,
Lancaster Regional Hospital and Hanover Hospital.
17

Brandywine Hospital, Phoenixville Hospital, Pottstown Memorial Medical
Center, Jennersville Regional Hospital, and Chestnut Hill Hospital.

- 36 -

 c.

UPMC Susquehanna has acquired two hospitals in Clinton
and Northumberland Counties.18

66.

These additional acquisitions have significantly expanded UPMC’s

footprint throughout most of Pennsylvania as both a health care provider and insurer.
67.

UPMC now controls more than 30 academic, community and specialty

hospitals, more than 600 doctors’ offices and outpatient sites, and employs more
than 4,000 physicians.19
68.

UPMC describes its Insurance Services Division, which includes the

UPMC Health Plan, as being the largest medical insurer in western Pennsylvania,
covering approximately 3.2 million members.20
69.

UPMC purports to be the largest non-governmental employer in

Pennsylvania with 80,000 employees.21
70.

As UPMC grows in both clinical and geographic scope, its potential to

deny care or increase costs will impact thousands more Pennsylvanians.

G. COUNTS
COUNT I
18

Sunbury Hospital and Lock Haven Hospital.

19

https://www.upmc.com/about/facts/pages/default.aspx

20

https://www.upmc.com/about/facts/pages/default.aspx

21

https://www.upmc.com/about/facts/pages/default.aspx

- 37 -

 Modification of the Consent Decrees is Necessary to Ensure Compliance with
Charities Laws

71.

Paragraphs 1 through 70 are incorporated as if fully set forth.

72.

The Consent Decrees provide, in part, that they are to be interpreted

consistent with protecting the public and the respondents’ charitable missions.
Paragraph IV(C)(10) of the Consent Decrees further provides that, “if the OAG . . .
believes modification of [the Consent Decrees] would be in the public interest, [the
OAG] shall give notice to the other [sic] and the parties shall attempt to agree on a
modification. . . . If the parties cannot agree on a modification, the party seeking
modification may petition the Court for modification and shall bear the burden of
persuasion that the requested modification is in the public interest.”
73.

As required by paragraph IV(C)(10) of the decrees, the Commonwealth

has notified all other parties of its belief that modification of the Consent Decrees is
needed to protect the public’s interests in order to:
a.

Enable patients’ continued and affordable access to their
preferred health care providers and facilities;

b.

Protect against the respondents’ unjust enrichment;

c.

Promote the efficient use of the respondents’ charitable
assets; and

- 38 -

 d.

Restore the respondents to their stated charitable missions
beyond June 30, 2019.

74.

UPMC’s conduct including, but not limited to the following, will result

in it not operating free from a private profit motive:
a.

Demanding up-front payments in-full from all Out-of-Network
patients based upon UPMC’s estimated charges and resulting in
payments in excess of the value of the services rendered by
UPMC;

b.

Utilizing facilities based billing for services where they had not
been before; and

c.

Transferring medical procedures to its higher cost specialty
providers.

75.

Consequently, the Commonwealth sought the following modifications

to the Consent Decrees. Highmark agreed to these modifications, UPMC did not.
Those terms included:
a.

Imposing internal firewalls on the respondents that
prohibit the sharing of competitively sensitive information
between the respondents’ insurance and provider
subsidiaries;

- 39 -

 b.

Imposing upon the respondents’ health care provider
subsidiaries a “Duty to Negotiate” with any health care
insurer seeking a services contract and submit to single,
last best offer arbitration after 90 days to determine all
unresolved contract issues;

c.

Imposing upon the respondents’ health care insurance
subsidiaries a “Duty to Negotiate” with any credentialed
health care provider seeking a services contract and submit
to single, last best offer arbitration after 90 days to
determine all unresolved contract issues;

d.

Prohibiting the respondents from utilizing in any of their
provider or insurance contracts any practice, term or
condition that limits patient choice, such as anti-tiering or
anti-steering;

e.

Prohibiting the respondents from utilizing in any of their
provider or insurance contracts any “gag” clause, practice,
term or condition that restricts the ability of a health plan
to furnish cost and quality information to its enrollees or
insureds

- 40 -

 f.

Prohibiting the respondents from utilizing in any of their
provider or insurance contracts any “most favored nation”
practice, term or condition;

g.

Prohibiting the respondents from utilizing in any of their
provider or insurance contracts any “must have” practice,
term or condition;

h.

Prohibiting the respondents from utilizing any “providerbased” billing practice, otherwise known as “facilitybased” or “hospital-based” billing;

i.

Prohibiting the respondents from utilizing in any of their
provider or insurance contracts any “all-or-nothing”
practice, term or condition;

j.

Prohibiting the respondents from utilizing in any of their
provider or insurance contracts any exclusive contracts or
agreements;

k.

Requiring

the

respondents’

health

care

provider

subsidiaries to limit charges for all emergency services to
Out-of-Network patients to their average In-Network
rates;

- 41 -

 l.

Prohibiting the respondents from terminating any existing
payer contracts prior to their termination dates for
anything other than cause;

m.

Requiring the respondents’ health care insurance
subsidiaries to pay all health care providers directly for
emergency services at the providers’ In-Network rates;

n.

Prohibit the respondents from discriminating against
patients based upon the identity or affiliation of the
patients’ primary care or specialty physicians, the patients’
health plan or utilization of unrelated third-party health
care providers;

o.

Requiring

the

respondents

to

maintain

direct

communications concerning any members of their
respective health plans being treated by the other’s
providers;
p.

Prohibiting the respondents from engaging in any public
advertising that is unclear or misleading;

q.

Requiring the respondents to replace a majority of their
respective board members who were on their respective
boards as of April 1, 2013 by January 1, 2020, with

- 42 -

 individuals lacking any prior relationship to either
respondent for the preceding five (5) years; and
r.

Extending the duration of the modified Consent Decrees
indefinitely.

76.

Nothing in the requested relief will prohibit the respondents from

continuing to develop both broad and narrow health care provider and/or health care
insurance networks.
77.

Nothing in the requested relief will limit or suppress competition

among health care providers or insurers – it will create a level playing field and
promote competition on the basis of provider-versus-provider and insurer-versusinsurer.
78.

As public charities, the respondents will only be precluded from

refusing to contract with any insurer or provider who desires a contractual
relationship through the usual course of negotiations with last best offer arbitration
compulsory after 90 days of failed negotiations.
79.

The above terms were discussed with Highmark on November 14, 2018

and with UPMC on November 26, 2018. After receiving and responding to the
respondents’

feedback

the

terms

were

contemporaneously on December 14, 2018.

- 43 -

formally

presented

to

them

 80.

Highmark has agreed to the Commonwealth’s requested modifications

set forth in the proposed modified decree attached as Exhibit G as long as they also
apply to UPMC.
81.

UPMC has rejected the Commonwealth’s requested modifications of

its Consent Decree thus requiring that the Commonwealth petition this Court for the
desired relief pursuant to paragraph IV(C)(10) of UPMC’s Consent Decree.
82.

Paragraph IV(C)(11) of UPMC’s Consent Decree provides that,

“[u]nless this Consent Decree is terminated, jurisdiction is retained by this Court to
enable any party to apply to this Court for such further orders and directions as may
be necessary and appropriate for the interpretation, modification and enforcement
of this Consent Decree ” (emphasis added).
83.

There are no limitations or parameters imposed on the scope of

permissible modifications, only that they must be shown to promote the public
interest.
84.

Modification as requested herein has never been considered by this

Court nor by our Supreme Court.
WHEREFORE, the Commonwealth respectfully requests that this Honorable
Court modify the Consent Decrees of both UPMC and Highmark through the single
combined decree attached hereto as Exhibit G to ensure that the benefits of InNetwork access to their health care programs and services are available to the public-

- 44 -

 at large and not just to those patients acceptable to them based upon their competitive
strategic and financial considerations.
IN THE ALTERNATIVE, the Commonwealth respectfully requests that
reimbursements to both UPMC’s and Highmark’s provider subsidiaries and
physicians for all Out-of-Network services be limited to the reasonable value of their
services which is no more than the average of their In-Network rates; In-Network
rates for this purpose meaning the average of all the respondents’ In-Network
reimbursement rates for each of its specific health care services, including, but not
limited to, reimbursement rates for government, commercial and their integrated
health plans.
COUNT II
UPMC’s Violation of the Solicitation of Funds for Charitable Purposes Act
(Charities Act)
85.

Paragraphs 1 through 84 are incorporated as if fully set forth.

86.

Section 3 of the Charities Act, 10 P.S. § 162.3, defines “Charitable

purposes” in pertinent part as follows:
Any benevolent, educational, philanthropic, humane,
scientific, patriotic, social welfare or advocacy, public
health, environmental conservation, civic or other
eleemosynary objective, . . . .
87.

Section 3 of the Charities Act, 10 P.S. § 162.3, defines “Charitable

organization,” in pertinent part, as follows:

- 45 -

 Any person granted tax exempt status under section
501(c)(3) of the Internal Revenue Code of 1986 (Public
Law 99-514, 26 U.S.C. § 501(c)(3)) . . . .
88.

Section 3 of the Charities Act, 10 P.S. § 162.3, defines “Solicitation” in

pertinent part as follows:
Any direct or indirect request for a contribution on the
representation that such contribution will be used in whole
or in part for a charitable purposes, including, but not
limited to, any of the following:
...
(2) Any written or otherwise recorded or
published request that is mailed, sent, delivered,
circulated, distributed, posted in a public place or
advertisement or communicated by press, telegraph,
television or any other media.
89.

Section 3 of the Charities Act, 10 P.S. § 162.3, defines a “Contribution”

in pertinent part as follows:
The promise, grant or pledge of money . . . or other thing
of any kind or value . . . in response to a solicitation,
including the payment or promise to pay in consideration
of a performance, event or sale of a good or service . . . .
90.

Section 6(a)(2) of the Charities Act, 10 P.S. § 162.6(a)(2), exempts

from the registration requirements of the Charities Act, “[h]ospitals which are
subject to regulation by the Department of Health or the Department of Public
Welfare and the hospital foundation, if any, . . . .”

- 46 -

 91.

Section 6(b) of the Charities Act, 10 P.S. § 162.6(b), provides however

that, “[e]xemption from the registration requirements of this act shall in no way limit
the applicability of other provisions of the act to a charitable organization . . . except
that written notice under section 9(k) and 13(c) shall not apply.”
92.

Section 13(d) of the Charities Act, 10 P.S. §162.13(d), provides that,

“[a] charitable organization may not misrepresent its purpose or nature or the
purpose or beneficiary of a solicitation. A misrepresentation may be accomplished
by words or conduct or failure to disclose a material fact.”
93.

In pertinent part, Section 15 of the Charities Act, 10 P.S. § 162.15,

prohibits the following acts in the planning, conduct or execution of any solicitation
or charitable sales promotion:
(a)

General rule. — Regardless of a person’s intent or the lack of
injury, the following acts and practices are prohibited in the
planning, conduct or execution of any solicitation or charitable
sales promotion:
(1)

Operating in violation of, or failing to comply with,
any of the requirements of this act (emphasis
added). . . .

(2)

Utilizing any unfair or deceptive acts or practices or
engaging in any fraudulent conduct which creates a
likelihood of confusion or of misunderstanding.

. . .
(5)

Misrepresenting or misleading anyone in any
manner to believe that . . . the proceeds of such
solicitation or charitable sales promotion will be

- 47 -

 used for charitable purposes when such is not the
fact.
94.

At all times relevant and material hereto, UPMC has represented to its

contributors:
a.

that UPMC provides hope during difficult illnesses and
compassion for every patient;

b.

that UPMC is deeply committed to the people who make
up their communities and to making sure that everyone
who comes through their doors has access to the very
best, most advanced health care available; and

c.

that UPMC makes sure that their patients benefit from
every available medical innovation.

95.

As evidenced by UPMC’s IRS Form 990 filings covering its fiscal years

ended June 30, 2006 through June 30, 2017, UPMC reported receiving public
contributions and grants totaling $1,272,514,014.
96.

UPMC’s decisions to deny access to the public, including PMF, self-

insured employers, others and Highmark’s Community Blue members and forego
future contracts with Highmark after June 30, 2019 contradict UPMC’s prior
representations to donors in violation of Sections 13 and 15 of the Charities Act, 10
P.S. §§ 162.13 and 162.15.
97.

Section 19 of the Charities Act, 10 P.S. § 162.19(a) provides:

- 48 -

 (a) General rule.—Whenever the Attorney General or any
district attorney shall have reason to believe, or shall be advised
by the secretary, that the person is operating in violation of the
provisions of this act, the Attorney General or district attorney
may bring an action in the name of the Commonwealth against
such person who has violated this act, to enjoin such person from
continuing such violation and for such other relief as the court
deems appropriate. In any proceeding under this subsection, the
court may make appropriate orders, including:
(1)

the appointment of a master or receiver;

(2)

the sequestration of assets;

(3)

the reimbursement of persons from whom
contributions have been unlawfully solicited;

(4)

the distribution of contributions in accordance with
the charitable purposes expressed in the registration
statement or in accordance with the representations
made to the person solicited;

(5)

the reimbursement of the Commonwealth for
attorneys' fees and the costs of investigation,
including audit costs;

(6)

the assessment of a civil penalty not exceeding
$1,000 per violation of the act, which penalty shall
be in addition to any other relief which may be
granted; and

(7)

the granting of other appropriate relief.

WHEREFORE, the Commonwealth respectfully requests that this
Honorable Court:

- 49 -

 a.

Find UPMC to be in violation of the Charities Act, for engaging
in acts prohibited by Section 15(a)(1), (2) and (5) of the Charities
Act, 10 P.S. § 162.15(a)(1), (2), and (5);

b.

Enjoin UPMC from conducting any further charitable
solicitations in violation of the Charities Act;

c.

Order UPMC to provide a full accounting of the contributions
received since July 1, 2006;

d.

Impose a civil penalty upon UPMC of One Thousand Dollars
($1,000) for each violation of the Charities Act;

e.

Award the Commonwealth its costs of investigation, attorneys’
fees, filing fees and costs of this action;

f.

Limit UPMC’s reimbursements for all Out-of-Network services
to the reasonable value of its services which are no more than
the UPMC’s average In-Network rates; In-Network rates for this
purpose meaning the average of all UPMC’s In-Network
reimbursements for each of its specific health care services,
including but not limited to, reimbursement rates for
government, commercial and its integrated health plan; and

g.

Order any other relief the Court deems appropriate.

- 50 -

 COUNT III
UPMC’s Breach of its Fiduciary Duties of Loyalty and Care Owed to its
Constituent Health Care Providers and Public-at-Large
98.

Paragraphs 1 through 97 are incorporated as if fully set forth.

99.

Section 5712 of the Nonprofit Corporation Law provides:
Standard of care and justifiable reliance
(a) Directors.--A director of a nonprofit corporation shall
stand in a fiduciary relation to the corporation and shall
perform his duties as a director, including his duties as a
member of any committee of the board upon which he may
serve, in good faith, in a manner he reasonably believes to
be in the best interests of the corporation and with such
care, including reasonable inquiry, skill and diligence, as
a person of ordinary prudence would use under similar
circumstances. In performing his duties, a director shall be
entitled to rely in good faith on information, opinions,
reports or statements, including financial statements and
other financial data, in each case prepared or presented by
any of the following:
(1) One or more officers or employees of the
corporation whom the director reasonably
believes to be reliable and competent in the
matters presented.
(2) Counsel, public accountants or other
persons as to matters which the director
reasonably believes to be within the
professional or expert competence of such
person.
(3) A committee of the board upon which he
does not serve, duly designated in accordance
with law, as to matters within its designated

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 authority, which committee the director
reasonably believes to merit confidence.
(b) Effect of actual knowledge.--A director shall not be
considered to be acting in good faith if he has knowledge
concerning the matter in question that would cause his
reliance to be unwarranted.
(c) Officers.--Except as otherwise provided in the bylaws,
an officer shall perform his duties as an officer in good
faith, in a manner he reasonably believes to be in the best
interests of the corporation and with such care, including
reasonable inquiry, skill and diligence, as a person of
ordinary prudence would use under similar circumstances.
A person who so performs his duties shall not be liable by
reason of having been an officer of the corporation.
15 Pa.C.S. § 5712.
100. Section 5547(a) of the Nonprofit Corporation Law provides in pertinent
part:
(a) General rule. -- Every nonprofit corporation
incorporated for a charitable purpose or purposes may
take, receive and hold such real and personal property as
may be given, devised to, or otherwise vested in such
corporation, in trust, for the purpose or purposes set forth
in its articles. The board of directors or other body of the
corporation shall, as trustees of such property, be held to
the same degree of responsibility and accountability as if
not incorporated, . .
15 Pa.C.S. § 5547(a).
101. Section 5547(b) of the Nonprofit Corporation Law provides that:
(b) Nondiversion of certain property. -- Property
committed to charitable purposes shall not . . . be diverted
from the objects to which it was donated, granted or

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 devised, unless and until the board of directors or other
body obtains from the court an order under 20 Pa.C.S. Ch.
77 Subch. D (relating to creation, validity, modification
and termination of trust) specifying the disposition of the
property (footnote omitted).
15 Pa.C.S. § 5547(b).
102. Section 7781 of the Uniform Trust Act, provides in pertinent part:
(a)

What constitutes breach of trust.--A violation by a trustee
of a duty the trustee owes to a beneficiary is a breach of
trust.

b)

Remedies.--To remedy a breach of trust that has occurred
or may occur, the court may order any appropriate relief,
including the following:
(1)

Compelling the trustee to perform the
trustee's duties.

(2)

Enjoining the trustee from committing a
breach of trust.

(3)

Compelling the trustee to redress a breach of
trust by paying money, restoring property or
other means.

(4)

Ordering a trustee to file an account.

(5)

Taking any action authorized by Chapter 43
(relating to temporary fiduciaries).

...
(7)

Removing the trustee as provided in section
7766 (relating to removal of trustee - UTC
706).

(8)

Reducing or denying compensation to the
trustee.

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 (9)

Subject to section 7790.2 (relating to
protection of person dealing with trustee UTC 1012):
(i)

voiding an act of the trustee;

(ii)

imposing a lien or a constructive
trust on trust property; or

(iii)

tracing
trust
property
wrongfully disposed of and
recovering the property or its
proceeds. . . .

20 Pa.C.S. § 7781.
103. UPMC instituted a policy of not treating Highmark Community Blue
members, even when those members were UPMC patients, Highmark had
committed to paying UPMC, and UPMC had contractually committed to treating
such patients.
104. UPMC Susquehanna closed one of its physician practices, the
Susquehanna Health Medical Group, to the employees of PMF Industries because
PMF lacked a hospital provider contract with UPMC Susquehanna for hospitalbased services – UPMC Susquehanna took this action despite PMF Industries having
contracted with the physician practice through another insurer and leaving PMF’s
employees with 30 days to find alternative physicians.
105. UPMC has further decided against extending or entering into any new
contracts that would provide Highmark members with In-Network access to many

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 of UPMC’s hospitals or physicians beyond June 30, 2019, even though such a
decision will increase health care costs to consumers and employers throughout
western Pennsylvania, especially when consumers require emergency care.
106. UPMC is also refusing to contract with Highmark for any of its noncommercial Medicare Advantage plans which will deny In-Network access to
seniors who cannot change their insurance plan and may result in higher premium
costs for seniors with a pre-existing medical condition.
107. The actions of UPMC are defeating the very purposes of the corporate
charter under which UPMC was created, in that:
a.

it denied medical care to Highmark’s more than 30,000
Community Blue members as well as the employees of
PMF Industries in spite of UPMC’s stated purpose of
providing an accessible health care system and its
contractual commitments to serve those customers; and

b.

its decision to forego future commercial contracts with
Highmark after June 30, 2019 as well as Highmark’s noncommercial Medicare Advantage plans will subject
hundreds of thousands of Highmark insurance members to
UPMC’s higher Out-of-Network charges for emergency
care and further operate to reduce UPMC’s accessibility

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 by discriminating against patients based upon their source
of payment and making UPMC’s health care services costprohibitive.
108. The discriminatory policies pursued by UPMC are:
a.

in breach of its stated charitable purposes and inherent
contractual obligations owed to the Commonwealth under
UPMC’s corporate charter;

b.

in breach of its fiduciary duties and stated charitable
purposes to further the charitable missions of its
constituent subsidiary hospitals as their sole controlling
member;

c.

inapposite to the public’s interest in having access to high
quality, affordable health care;

d.

in callous disregard of the treatment disruptions and
increased costs suffered by its patients;

e.

in disregard of the substantial public subsidies and
donations UPMC has enjoyed throughout its existence
from the general public; and

f.

a clear and misguided effort to pursue commercial policies
and objectives designed to increase UPMC’s revenue and

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 market shares at the public’s expense and its stated
charitable purposes.
109. The actions complained of are causing widespread confusion among
the public and personal hardships for many individual UPMC patients. UPMC’s
exorbitant executive salaries and perquisites in the form of corporate jets and
prestigious office space waste and divert charitable assets. Moreover, UPMC’s
misleading promotional campaigns and unnecessary litigation damage UPMC’s
goodwill and reputation which were earned through public tax and charitable
donation support.
110. Absent the intervention of this Court, nothing will prevent UPMC from
refusing to contract with any other health care insurer in the future such that only
subscribers to the UPMC Health Plan will have In-Network access to UPMC’s
providers, further limiting In-Network access to UPMC’s providers and increasing
the public’s overall costs of health care.
WHEREFORE, the Commonwealth respectfully requests that this
Honorable Court:
a.

Find that UPMC is failing to operate in compliance with its stated
charitable purposes of providing the public with high quality,
cost-effective and accessible health care;

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 b.

Find that UPMC is in breach of its fiduciary duties and stated
charitable purpose of furthering the charitable missions of its
constituent subsidiary hospitals as their sole controlling member;

c.

Find that UPMC is failing to ensure that its advertising and
promotional materials are truthful and not misleading;

d.

Find that UPMC is failing to comply with the representations
made to donors in its solicitations for donations;

e.

Enjoin UPMC from denying access or treatment to any patient
based upon the source of the patient’s payment or the identity of
their health care insurer;

f.

Modify the terms of UPMC’s Consent Decree as proposed in
Count I or, alternatively, limit UPMC’s reimbursements for all
Out-of-Network services to the reasonable value of its services
which are no more than the average of UPMC’s In-Network
rates; In-Network rates for this purpose meaning the average of
all of UPMC’s In-Network reimbursement rates for each of its
specific health care services provided, including, but not limited
to, reimbursement rates for government, commercial and their
integrated health plan;

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 g.

Order UPMC to reimburse Highmark members for any Out-ofNetwork costs and expenses suffered as a result of the actions
complained of;

h.

Order UPMC to substantiate the reasonableness of:
A)

UPMC’s executive staff compensation;

B)

the expenditures on its chartered and/or
corporate jets;

C)

the costs of UPMC’s expansive building and
expansions plans; and

D)

the

costs

promotions,

of

its

public

advocacy

advertising,

campaigns

and

litigation fees to support its unlawful
activities;
i.

Make structural changes to the Board of Directors and Executive
Management of UPMC; and

j.

Order any other relief this Court deems appropriate.

COUNT IV
UPMC’S Violations of the Unfair Trade Practices and Consumer Protection
Law (Consumer Protection Law)
111. Paragraphs 1 through 110 are incorporated as fully set forth.

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 112. At all times relevant and material, UPMC engaged in and continues to
engage in trade or commerce within Pennsylvania by advertising, marketing,
promoting, soliciting, and selling an array of medical products and services,
including acute inpatient hospital care, outpatient care, physician services and the
UPMC Health Plan insurance products and services directly and indirectly to
consumers, within the meaning of 73 P.S. §§ 201-1, et seq.
113.

Section 3 of the Consumer Protection Law, 73 P.S. §201-3, declares

unfair and deceptive acts or practices to be unlawful.
114. Section 4 of the Consumer Protection Law, 73 P.S. §201-4, empowers
the Attorney General to bring actions in the name of the Commonwealth to restrain
persons by temporary and permanent injunction from using any act or practice
declared unlawful by Section 3 of the Consumer Protection Law, 73 P.S. §201-3.
115. Section 4.1 of the Consumer Protection Law, 73 P.S. §201-4.1,
provides that, “whenever any court issues a permanent injunction to restrain and
prevent violations of this act . . . the court may in its discretion direct that the
defendant or defendants restore to any person in interest any moneys or property . .
. which may have been acquired by means of any violations of this act . . . .”
116. Section 8(b) of the Consumer Protection Law provides:
In any action brought under section 4 of this act, if the court finds
that a person, firm or corporation is willfully using or has
willfully used a method, act or practice declared unlawful by
section 3 of the act, the Attorney General . . . may recover, on

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 behalf of the Commonwealth of Pennsylvania, a civil penalty of
not exceeding one thousand dollars ($1,000) per violation, which
civil penalty shall be in addition to other relief which may be
granted under sections 4 and 4.1 of this act. Where the victim of
the willful use of a method, act or practice declared unlawful by
section 3 of this act is sixty years of age or older, the civil penalty
shall not exceed three thousand dollars ($3,000) per violation,
which penalty shall be in addition to other relief which may be
granted under section 2 and 4.1 of this act.
73 P.S. §201-8(b).
117. UPMC has presented conflicting messages to the public generally, and
to its patients in particular, that it will treat all patients regardless of their source of
payment, but it has refused treatment to its patients with Highmark insurance and
will no longer contract with Highmark for any of its commercial or Medicare
Advantage insurance products after June 30, 2019 which will significantly increase
the costs of care for all of Highmark’s subscribers. For example:
a.

University of Pittsburgh and Penn State retirees received letters
in late summer 2018 that as of January 1, 2019 UPMC would no
longer accept Highmark plans – Security Blue, Freedom Blue,
Signature 65 (supplemental), despite the fact that retirees will
have access through June 30, 2019 under the Consent Decrees.

b.

UPMC also sent mailers that omitted Gateway as having InNetwork access to UPMC. This created confusion for Gateway
members and Gateway received several calls from members

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 during open enrollment.

Gateway serves a very vulnerable

population of Medicare and Medicaid dual eligible beneficiaries.
118. UPMC previously created confusion and misunderstanding as to its
affiliation, connection, or association with Highmark and its Community Blue
insurance plan by representing that it would treat Community Blue members
pursuant to the Mediated Agreement and 2012 Agreement, only to repudiate those
agreements months later:
a.

The Mediated Agreement and 2012 Agreement required
UPMC to provide in-network access to all UPMC
hospitals and physicians for Highmark Commercial and
Medicare Advantage members through December 31,
2014.

b.

Furthermore, the 2012 Agreement which was to be read
together and harmonized with the Mediated Agreement,
provided a mechanism by which Community Blue
members could receive care at all UPMC hospitals and
that care would be paid for by Highmark at rates UPMC
agreed to accept.

c.

In spite of its contractual agreements, UPMC denied
Highmark Community Blue subscribers access to its

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 facilities and providers even when patients offered to selfpay without accessing their health insurance.
119. More recently as alleged:
a. UPMC Susquehanna unilaterally closed its physician
practice, the Susquehanna Health Medical Group, to a
local employer due to the local employer’s lack of a
hospital provider contract with UPMC Susquehanna, even
though the employer had a contract with the Susquehanna
Medical Group and even though most visits to a doctor do
not result in a hospital stay.
b. The UPMC Health Plan distributed a promotional flyer to
local employers within UPMC Susquehanna’s service area
that offered the opportunity to lock-in single digit
premium increases through 2020, while, at the very same
time, reserving UPMC’s right to unilaterally terminate the
program at any time.
c. UPMC is refusing to contract with Highmark regarding its
Medicare

Advantage

products

despite

its

prior

representations to the Commonwealth and the public that

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 seniors would never be affected by its commercial
contractual disputes with Highmark.
120. UPMC created public confusion regarding the loss of InNetwork access for seniors prior to the expiration of UPMC’s Consent Decree
when it publicly announced its termination of its Highmark Medicare
Advantage contracts on September 26, 2017 effective December 31, 2018,
when UPMC knew or should have known its actions:
a.

violated this Court’s May 29, 2015 Order
requiring the Court’s pre-approval of such
termination,

b.

was

merely

speculating

as

to

the

consequences for seniors who remained
subscribers

to

Highmark’s

Medicare

Advantage plans when this Court had yet to
approve UPMC’s contract terminations, and
c.

disparaged Highmark’s Medicare Advantage
plans as lacking In-Network access to
UPMC’s health care providers when UPMC
knew its Consent Decree requires that it
remain in contract with Highmark through

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 June 30, 2019 and its premature termination
lacked this Court’s pre-approval.22
121. Most recently, UPMC’s refusal to contract with Highmark’s Medicare
Advantage products at the expiration of its Consent Decree resulted in 15,000 more
seniors than usual contacting the Apprise program in Allegheny County expressing
confusion and seeking guidance on the best options available to them during the last
Medicare enrollment period that ran from October 15, 2018, to December 7, 2018.
Despite UPMC’s participation in the Apprise program conducted on October 11,
2018, even UPMC was unable to offer clear guidance in responding to the many
questions it received from the audience comprised of insurance brokers, advocates,
trainees and seniors.
122. UPMC’s conduct more fully described herein is, accordingly,
proscribed and unlawful pursuant to Section 3 of the Consumer Protection Law.
123. The aforesaid methods, acts or practices constitute unfair or deceptive
acts or practices within the meaning of Section 2(4) of the Consumer Protection Law,
including, but not limited to:

UPMC’s subsequent terminations of those same Highmark Medicare Advantage
contracts in January of 2018 to be effective December 31, 2018 were determined by
the Supreme Court to comply with the terms of the Consent Decrees in light of the
six-month run out period within those contracts which continued In-Network access
through June 30, 2019. See the Supreme Court’s July 18, 2018 Opinion. The issue
of the modifications requested herein, however, has never been presented to nor
addressed by either this or the Supreme Court.
22

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 (iii)

Causing likelihood of confusion or of misunderstanding as

to affiliation, connection or association with, or certification by,
another;
...
(v)

Representing

that

goods

or

services

have

sponsorship, approval, characteristics, ingredients, uses,
benefits or quantities that they do not have or that a person
has a sponsorship, approval, status, affiliation or
connection that he does not have;
(viii) Disparaging the goods or services or business of
another by false or misleading representation of fact;
(xxi) Engaging in any other fraudulent or deceptive
conduct which creates a likelihood of confusion or of
misunderstanding.
73 P.S. §201-2(4)(iii), (v), (viii) and (xxi).
124. The above described conduct has been willful within the meaning of
Section 8(b) of the Consumer Protection Law.
125. The Commonwealth believes that the public interest is served by
seeking a permanent injunction from this Honorable Court to restrain methods, acts
and practices described herein, as well as provide restitution for Pennsylvania

- 66 -

 consumers and civil penalties for violations of the law. The Commonwealth believes
that citizens of the Commonwealth are suffering and will continue to suffer harm
unless the methods, acts or practices complained of herein are permanently enjoined.
WHEREFORE, the Commonwealth respectfully requests that as an
additional alternative to the relief requested under Count I, this Honorable
Court:
a.

Find that UPMC has engaged in unfair methods of
competition and unfair or deceptive acts or practices
within the meaning of Section 201-4 of the Consumer
Protection Law;

b.

Find that UPMC willfully engaged in unfair, fraudulent,
or deceptive acts or practices in violation of Section 2013 of the Consumer Protection Law by creating the
likelihood of consumer confusion or misunderstanding as
to its affiliation, connection, or association with Highmark
and Highmark’s Community Blue health insurance
product, as alleged;

c.

Find that UPMC willfully engaged in unfair, fraudulent,
or deceptive acts or practices in violation of Section 2013 of the Consumer Protection Law by unilaterally closing

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 its Susquehanna Health Medical Group to a local
employer because the employer lacked a provider contract
with UPMC Susquehanna, as alleged;
d.

Find that UPMC willfully engaged in unfair, fraudulent,
or deceptive acts or practices in violation of Section 2013 of the Consumer Protection Law by creating the
likelihood of consumer confusion or misunderstanding as
to its affiliation, connection, or association with Highmark
and Highmark’s non-commercial Medicare Advantage
health insurance products, as alleged;

e.

Enjoin UPMC, its agents, representatives, servants,
employees, successors, and assigns pursuant to Section
201-4 of the Consumer Protection Law, from directly or
indirectly engaging in the aforementioned acts, practices,
methods of competition, or any other practice that violates
the Consumer Protection Law;

f.

Enjoin UPMC from denying access and treatment to
Highmark subscribers generally and Community Blue and
Medicare Advantage members specifically;

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 g.

Determine pursuant to Section 201-4.1 the amount of
restitution due to consumers who suffered losses as a result
of UPMC’s unlawful acts and practices as alleged and any
other acts or practices which violate the Consumer
Protection Law and order UPMC to pay restitution to the
affected consumers;

h.

Determine the amount of civil penalties, pursuant to
Section 201-8(b) of the Consumer Protection Law, which
are assessable up to $1,000.00 for each and every violation
of the Consumer Protection Law and up to $3,000.00 for
each violation involving a victim aged sixty (60) or older
and order UPMC to pay those civil penalties to the
Commonwealth;

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 i.

Award the Commonwealth its costs of investigation and
attorneys' fees pursuant to Section 201-4.1, for this action;
and

j.

Order any other relief the Court deems appropriate.

Respectfully submitted,
COMONWEALTH OF PENNSYLVANIA,
JOSH SHAPIRO,
Attorney General,

By: _/s/ James A. Donahue, III
James A. Donahue, III
Executive Deputy Attorney General
Public Protection Division
PA. ID. 42624
Mark A. Pacella
Chief Deputy Attorney General
Charitable Trusts and Organizations Section
PA. ID. 42214
Tracy W. Wertz
Chief Deputy Attorney General
Antitrust Section
PA. ID. 69164

Date: February 7, 2019

14th Fl., Strawberry Square
Harrisburg, PA 17120
717.787.4530

- 70 -

 CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provision of the Public Access
Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate
and Trial Courts that require filing confidential information and documents
differently from non-confidential information.

/s/ James A. Donahue, III
James A. Donahue, III
Executive Deputy Attorney General
Public Protection Division
February 7, 2019

- 71 -

 CERTIFICATE OF SERVICE
I hereby certify that I am this 7th day of February, 2019, serving a true and
correct copy of the foregoing Commonwealth’s Petition to Modify Consent
Decrees with exhibits on all parties via electronic mail as indicated below:
Stephen A. Cozen, Esquire
COZEN O”CONNOR
scozen@cozen.com
(Counsel for UPMC)
Leon F. DeJulius, Jr., Esquire
JONES DAY
lfdejulius@jonesday.com
(Counsel for UPMC)
W. Thomas McGough, Jr., Esquire
UPMC
mcgought@upmc.edu
Daniel I. Booker, Esquire
REED SMITH
dbooker@reedsmith.com
(Counsel for Highmark)
Thomas L. Vankirk, Esquire
HIGHMARK
thomas.vankirk@highmark.com
Kenneth L. Joel
Deputy General Counsel
PA OFFICE OF GENERAL COUNSEL
kennjoel@pa.gov

- 72 -

 Victoria S. Madden
Deputy General Counsel
PA OFFICE OF GENERAL COUNSEL
vmadden@pa.gov
Amy Daubert
Chief Counsel
PA Department of Insurance
adaubert@pa.gov
Yvette Kostelec
Chief Counsel
PA Department of Health
ykostelac@pa.gov

/s/ James A. Donahue, III
James A. Donahue, III
Executive Deputy Attorney General
Public Protection Division

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