Latest Antitrust Legislation May be Moot

The House repealed the McCarran-Ferguson antitrust exemption for health insurers this week by passing the larger bill which included the repeal amendment. The McCarran-Ferguson repeal amendment to H.R. 5, the Protecting Access to Healthcare (PATH) Act, passed the House largely by party lines, with a vote of 223 to 181.

When the House Rules Committee processed the McCarran-Ferguson repeal amendment last week, the rules contained within it were changed to explicitly exempt property and casualty and life products from the repeal. Workers’ compensation insurance was also excluded.

In a statement, Melissa Shelk, VP for federal affairs at the American Insurance Association (AIA), said, “Any attempts to broadly repeal McCarran-Ferguson are misguided and could have unintended consequences that, ironically, could stifle market competition while promoting regulatory uncertainty and increased litigation. While we would prefer to see McCarran left intact, the amendment’s author recognized that property/casualty insurance products, along with other non-health insurance lines, should be exempted from the amendment’s scope.”

Presenting on the House floor, Rep. Paul Gosar, R-Ariz., the amendment’s sponsor, highlighted a provision of the amendment that would also bar class-action lawsuits against health insurance companies in federal court.

“The Federal Trade Commission should have the power to investigate bad actors in the health insurance industry, but it helps no one if these companies, or for that matter any American business, gets mired in lawsuits that will cost millions,” Gosar said. “Class-action lawsuits often result in big bucks in attorney’s fees for greedy trial lawyers while leaving only pennies in the hands of the plaintiffs who were allegedly wronged in the first place,” he added.

In response, Robert Zirkelbach, a spokesman for America’s Health Insurance Plans, said, "health insurance is one of the most regulated industries in America at both the federal and the state levels. The McCarran-Ferguson Act is extremely limited in scope and has nothing to do with competition within the health insurance industry.”

The broader legislation contains federal standards designed to further limit medical-malpractice lawsuits. It would do so by capping a medical-malpractice victim’s recovery.

The White House, meanwhile, issued its own statement: “H.R. 5 would repeal and dismantle the IPAB (Independent Payment Advisory Board) even before it has a chance to work. The bill would eliminate an important safeguard that, under current law, will help reduce the rate of Medicare cost growth responsibly while protecting Medicare beneficiaries and the traditional program. The Administration strongly opposes legislation that attempts to erode the important provisions of the Affordable Care Act.”

In spite of the continued discourse on the bill and the support it garnered from the House, the expected continued opposition of Senate Democrats and President Obama may ensure that the legislation would not be signed into law.

Said the White House: “If the President is presented with H.R. 5, his senior advisors would recommend that he veto the bill.”