For the most part, I have found the congressional debate over health insurance reform largely dispiriting and depressing. But every now and then, an event occurs that temporarily adds a bit of levity to the process. While all too infrequent, sometimes the political posturing is instructive on many levels. The release of the health insurance industry’s study, conducted by PricewaterhouseCoopers, showing that the Baucus bill would substantially increase the cost of health insurance for the average American family, is the most recent distraction.
After bludgeoning the public option and driving a sweetheart deal with the White House, it’s not surprising that the insurance industry would respond negatively to any aspect of the proposed legislation that would undermine its hegemony (and I use the word deliberately) over health care delivery. Once the Senate Finance Committee voted to relax the penalty for not purchasing mandated insurance coverage, the insurance industry’s rationale for supporting the legislation lessened.
In response, the controversial PricewaterhouseCoopers study was released, demonstrating that the Baucus legislation would raise the cost of health insurance substantially. In part because the study ignored aspects of the bill that might reduce health insurance costs, the study garnered generally dismissive reviews. The White House, for instance, dismissed the study as flawed and deceptive. Even PricewaterhouseCoopers backed away from its conclusions after widespread criticism. Whatever the study’s sponsor, America’s Health Insurance Plans (AHIP), may have intended, the resulting furor was probably not high on its list.
In contrast to industry expectations, Democrats stuck back quickly, threatening to enact legislation to remove the industry’s immunity from federal antitrust enforcement, codified in the McCarran-Ferguson Act of 1945. To protect state regulatory authority over insurance markets, McCarran-Ferguson prevents the Federal Trade Commission and Department of Justice from initiating antitrust litigation against health insurers. One result has been the secular trend toward consolidation of health insurance markets, where one or two large insurers dominate local markets.
Is repealing McCarran-Ferguson a good idea? Would federal antitrust enforcement of the health insurance industry lead to less consolidation and reduce the potential for abusive practices (such as rescission of insurance benefits and unexplained coverage denials)? Certainly, the incentive for states’ attorneys general to initiate antitrust litigation against health insurers is low. For one thing, the cost of such litigation is high. For another, they may view it as a political issue best left to the legislature because the likelihood of new competitors entering the market is unknown.
Whether the incentives for federal antitrust action would be any different are equally unknown. More importantly, the question of whether a successful antitrust action against insurers would reduce market consolidation and provide a more competitive market at the state level is speculative. But at a minimum, the threat of federal antitrust activity may act as a sentinel against some of the more abusive insurance practices that states seem unwilling to challenge.
To be sure, robust antitrust enforcement over time could well reduce consolidation in the health insurance market with a corresponding erosion in political power (similar to what organized medicine, especially the American Medical Association, has experienced over time) and facilitate the introduction of increased competition. For its part, the industry maintains that competition in health insurance markets is already robust, though evidence for that position seems thin. In any event federal antitrust enforcement, combined with a robust public option, would certainly introduce more competition.
Thus, I support repeal of McCarran-Ferguson as a mechanism that has the potential to induce needed changes in the health insurance industry. Whatever its justification in 1945, the Act has long since outlived its usefulness. While I’m still skeptical that it will be repealed, if AHIP’s gaffe actually results in repeal, the health insurance will have unexpectedly lost a major battle. If it is not repealed, this episode will no doubt be a mere sideshow (if mentioned at all) when the history of health reform 2009 is written. Even with repeal, the health insurance industry is so powerful right now that its market dominance will not be substantially weakened any time soon.
Still, there are a couple of lessons to consider. First, it was always naive for policymakers to believe that the health insurance industry would make concessions that matter. Second, what should we make of the PricewaterhouseCoopers study and its release? Some interesting tactical and ethical issues might be considered. When should a consultant advise the client that presenting a worst-case scenario could backfire? If the client rejects the advice, should the consultant just walk away from the study? Walking away seems very unrealistic given the stakes involved, and it is unlikely that either AHIP or PricewaterhouseCoopers will suffer anything more than a short-term “black eye” from this episode. Yet the potential for losing the industry’s antitrust exemption is not a trivial setback.
Categories: Legal Issues
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.