Health Insurers Now Subject to Antitrust Prosecution

By Kathleen Marcus, J.D.

Among his last acts in office, former President Donald J. Trump signed into law the Competitive Health Insurance Reform Act of 2020 (CHIRA)[1] which limits the antitrust exemption available to health insurance companies under federal law.

In 1944, the United States Supreme Court ruled health insurance carriers’ activities fell under interstate commerce and were therefore subject to the Commerce Clause and Sherman Act. However, the following year Congress passed the McCarran-Ferguson Act which created a special-interest loophole that protected insurance companies from antitrust regulation.[2]

In recent years health insurance carriers, including those limited to providing dental insurance, have merged to form ever larger and more economically powerful entities. Such domination of market share is usually limited by federal antitrust law but fell within the McCarron-Ferguson exemption.

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Going forward, CHIRA allows the federal Justice Department to prevent an increase in competition among health insurance carriers. By spreading market power among a larger number of companies which, it is hoped, will decrease premiums, and increase benefits under dental insurance policies.[3]

 

Author: Kathleen Marcus, J.D., is DOCS Education's Regulatory Counsel. Uniquely qualified to advise and advocate for sedation dentistry, she draws on a healthcare law background that started from her first big court case right out of law school, over three decades ago. A 1988 graduate of Temple University School of Law, she was Research Editor of the Temple Law Review; she previously attended Bennington College, and has a B.A. in Philosophy. Kate is Pennsylvania licensed, with extensive experience in civil and criminal litigation at the state and federal levels. Her specialties include compliance, healthcare law, contract negotiation, contract drafting, commercial litigation, small business, health insurance and regulation, and URAC; she has demonstrated excellence in persuasive writing and editing, public speaking, and compliance (EEOC, HIPAA, HITECH, Title IX).

 

  1. Justice Department Welcomes Passage of The Competitive Health Insurance Reform Act of 2020, Department of Justice, Office of Public Affairs, January 13, 2021. https://www.justice.gov/opa/pr/justice-department-welcomes-passage-competitive-health-insurance-reform-act-2020
  2. House Amendment Imperils Payer Anti-Trust Exemption, HEALTHPAYER INTELLIGENCE, September 23, 2020. https://healthpayerintelligence.com/news/house-amendment-imperils-payer-anti-trust-exemption
  3. Repeal of the Antitrust Exemption for Health Care Insurance a Win for Consumers and Dentists, American Dental Association, January 14, 2021. https://www.ada.org/en/press-room/news-releases/2021-archives/january/repeal-of-the-antitrust-exemption
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