Bill Seeking to Repeal the McCarran Ferguson Act’s Antitrust Exemption Introduced in Congress

by Dickinson Wright
Contact

On September 18, Congressman Phil Roe (R-Tennessee) introduced legislation (H.R. 3121) that would, among other things, amend Section 3 of the McCarran-Ferguson Act (15 U.S.C. 1013) to repeal the Act’s antitrust exemption for health insurers. Congressman Roe’s McCarran-Ferguson repeal provisions (Subtitle B of the legislation) are part of a larger piece of legislation – almost 200 pages in all – that would also repeal the Affordable Care Act. In adding a McCarran repeal component to his bill, Congressman Roe’s bill joins several other bills currently pending in Congress that would repeal McCarran’s antitrust exemption for health insurers, including H.R. 99 (introduced by Congressman John Conyers, D-Michigan), H.R. 344 (introduced by Congressman Steven Lynch, D-Massachusetts), H.R. 743 (introduced by Congressman Peter DeFazio, D-Oregon) and H.R. 911 (introduced by Congressman Paul Gosar, R-Arizona).

The McCarran-Ferguson Act provides an exemption from the federal antitrust laws for the “business of insurance,” provided that such conduct is subject to state regulation and does not constitute an act of “boycott, coercion or intimidation.” Enacted in 1945, over the last few years, McCarran’s antitrust exemption has been under considerable attack, particularly with respect to its application to health insurance. Under Congressman Roe’s bill, “the business of health insurance (including the business of dental insurance)” would be carved out of the “business of insurance,” placing it within the scope of the federal antitrust laws. H.R. 3121 also makes clear that the “business of health insurance” does not extend to life insurance, annuities or property & casualty insurance, thus continuing the exemption as to those activities. Finally, H.R. 3121 would also subject health insurers, whether for-profit or non-profit, to Section 5 of the FTC Act, which prohibits unfair competition.

The McCarran repeal provisions of H.R. 3121 are quite similar to those of the previously introduced bills. Specifically, each proposed bill would extend the federal antitrust laws only as to the business of health insurance, except for Congressman Conyers’s bill (H.R. 99), which would also repeal the exemption as to medical malpractice insurance. All of the proposed bills would also extend the scope of Section 5 to for-profit and non-profit health insurers.

H.R. 3121 has been sent to the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law for further action, which is where all of the previously introduced bills currently reside. Notably, when Congressman DeFazio introduced H.R. 743 earlier this year, he noted that over 400 House members voted in favor of similar legislation last Congress and urged legislators to act swiftly, and favorably, on the legislation this Congress. Nevertheless, to date, none of these McCarran repeal bills has been taken up by the subcommittee, and with Congress now undoubtedly set to focus on budget issues in early 2014, the prospects for any of these McCarran repeal bills is quite uncertain. Stay tuned.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dickinson Wright | Attorney Advertising

Written by:

Dickinson Wright
Contact
more
less

Dickinson Wright on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.