September 19, 2021

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Leahy requests updates on enforcement of antitrust act around wellbeing insurers

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Vermont Organization Magazine Senators Patrick Leahy (D-Vermont) and Steve Daines (R-Mont) on Tuesday asked for updates from each the Federal Trade Commission (FTC) and the Department of Justice (DOJ) on their the latest endeavours to overcome anticompetitive perform in the health insurance plan industry. The two senators recently served as chief cosponsors of the bipartisan Aggressive Well being Insurance policy Reform Act (CHIRA), which protects buyers by repealing a extensive-outdated antitrust exemption for the wellness insurance policy market.

Many years of consolidation by wellness insurance plan brokers has primed the field for abuse, allowing insurers to exert current market energy in get to increase premiums, limit competition, and deny shoppers selection.

Considering that the CHIRA’s passage in January of this calendar year, neither the FTC nor the DOJ has announced important ways to work out their expanded antitrust enforcement authority beneath the new regulation.  In their letter, the senators referred to as on the companies to supply information and facts on any enforcement steps, recommendations, rulemaking, or other actions taken to increase antitrust enforcement to the wellbeing insurance industry considering the fact that then.

Leahy and Daines wrote:  “The CHIRA’s enactment will support antitrust authorities advertise competition and transparency in the health treatment industry by in fact empowering them to look at — and take motion in opposition to, where justified — perhaps anticompetitive practices by the well being care, dental, and vision insurance companies…Since the CHIRA’s enactment in January 2021, however, not substantially is publicly recognized about what the DOJ or the FTC have done to exercise their expanded authorities below the regulation.”

They requested:  “In purchase for Congress to far better have an understanding of how the DOJ and the FTC are training their expanded authorities pursuant to the CHIRA to oversee, analyze, and acquire motion against potentially anticompetitive practices in just the well being insurance coverage industry, we respectfully ask for answers to the pursuing queries no later than August 4, 2021.”

Full text of the letter is under.

 

July 20, 2021

Honorable Merrick Garland

Legal professional Typical

U.S. Division of Justice

950 Pennsylvania Ave., NW

Washington, DC 20530

 

Honorable Lina Khan

Chair

Federal Trade Commission

600 Pennsylvania Ave., NW

Washington, DC 20580

Expensive Attorney Normal Garland and Chair Khan:

We compose today about the just lately expanded antitrust authorities of the Division of Justice (DOJ) and Federal Trade Commission (FTC) more than the wellness insurance industry subsequent the enactment of the Aggressive Health and fitness Insurance coverage Reform Act (CHIRA) of 2020.

The CHIRA protects people from anticompetitive practices by repealing the McCarran-Ferguson Act’s outdated antitrust exemption for the overall health insurance plan field. A long time of consolidation by health and fitness insurance coverage brokers has primed the market for abuse, permitting insurers to exert market place electrical power in buy to elevate premiums, prohibit levels of competition, and deny consumers selection.[1] Even with the plainly anticompetitive character of these procedures, right before the CHIRA was enacted, regulators lacked the electric power to end insurers’ misconduct thanks to the industry’s antitrust exemption.  For example, as recently as final December, a U.S. District Court docket dismissed antitrust statements in opposition to the Blue Cross Blue Protect Association for allegedly conspiring with its customers to deny sufferers and companies insurance plan protection for telemetry displays, holding that the Affiliation was immune from accommodate.[2]

The CHIRA’s enactment will assist antitrust authorities boost level of competition and transparency in the wellness treatment industry by actually empowering them to examine—and consider action against, wherever justified—potentially anticompetitive tactics by the health treatment, dental, and vision insurance policy corporations. It was for these motives that the DOJ lauded the CHIRA’s passage just after it was signed into law on January 13, 2021.[3]  Although the FTC has not commented officially on the CHIRA, at the very least one particular commissioner has in the same way voiced support for legislation to repeal or restrict the wellbeing insurance coverage industry’s exemption from our antitrust laws.[4]

Given that the CHIRA’s enactment in January 2021, on the other hand, not significantly is publicly recognised about what the DOJ or the FTC have accomplished to workout their expanded authorities less than the regulation. In January, the DOJ cited the CHIRA in a notice of supplemental authority submitted in support of a personal scenario before the Eleventh Circuit, arguing that the law’s passage further clarified that defendant-insurers’ exclusivity regulations ended up not immune from antitrust fits.[5]  But apart from this action, general public details is missing as to what, if any, steps both the DOJ or the FTC has taken to prolong antitrust enforcement to the health coverage field.

In get for Congress to far better recognize how the DOJ and the FTC are doing exercises their expanded authorities pursuant to the CHIRA to oversee, study, and consider action towards possibly anticompetitive techniques inside the well being insurance plan industry, we respectfully request answers to the following questions no afterwards than August 4, 2021. Every question is directed at both of those the DOJ and FTC unless of course or else specified:

  1. Considering that January 13, 2021, what lawful steps, if any, has your office taken to enforce antitrust guidelines towards companies in the business enterprise of wellbeing insurance policy that are no for a longer period exempt from enforcement less than the McCarran-Ferguson Act? Please give as a great deal detail as you can.
  2. Specifically, what has your section accomplished because January 13, 2021 to examine illegal price tag fixing, bid rigging, or current market allocation by health and fitness insurers?
  3. Aside from the situation highlighted in this letter, has your section submitted any amicus briefs, notices of supplemental authority, small business advisory thoughts, or other filings about the legal outcomes of the CHIRA in any non-public litigation? If so, which cases?
  4. What measures, if any, has your division taken to craft new enforcement suggestions that account for the CHIRA and its software to the wellbeing insurance industry?
  5. For the FTC: What, if any, probable laws has the Commission considered—or may well consider—issuing with regard to unfair or deceptive procedures by wellbeing insurance plan providers no extended exempt from antitrust law?

Thank you for your consideration to this crucial make a difference.

Sincerely,

________________________________                                      _______________________________

Patrick Leahy                                                                                                                 Steve Daines

United States Senator                                                                                       United States Senator


[1] See Leemore Dafny, Marc Duggan, and Subramaniam Ramanarayanan, Spending a Top quality on Your Premium? Consolidation in the U.S. Wellness Insurance policies Business, 102 Amer. Econ. Rev. 1161 (2012).

[2] See LifeWatch Servs. v. Highmark, Inc., No. CV 12-5146, 2020 WL 7690179 (E.D. Pa. Dec. 28, 2020).

[5] See Detect of Supplemental Authority, Oscar Ins. Co. of Fla. v. Blue Cross & Blue Shield of Fla., No. 19-14096 (11th Cir. January 15, 2021).

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