Antitrust & Competition Policy Blog

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Thursday, October 29, 2009

McCarran-Ferguson Antitrust exemption repealer legislation update

Posted by Chris Sagers

The comprehensive House health care bill introduced for floor consideration this morning contains, as section 262, the McCarran-Ferguson repealer that was voted out of House Judiciary earlier this month (the original bill repealing the exemption had been H.R. 3596). There are some non-trivial changes from the original text of H.R. 3596, including the inclusion of some of the "safe harbor" defenses that the ABA Antitrust Section has been urging for about 20 years.  Also, this version would preserve insurer's McCarran immunity from FTC Act section 5 liability.  However, the limitation of repeal to "price fixing, bid rigging, or market allocation" still appears in this version of the bill. I believe that language is extremely unwise because, on my understanding, health insurers are not allowed even now to engage in that conduct under existing law (because state insurance regimes authorize it only as to specific property/casualty insurers). Also, if there is a competitive problem in health insurance my sense is it's not conspiracy, but consolidation.

Apparently the House health care bill in its most current form has been hard to find on the Thomas website.  Here is a link to the (nearly 2000 page) document:

http://docs.house.gov/rules/health/111_ahcaa.pdf

The McCarran repealer, which is section 262 of the bill, appears on p. 150.


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