On May 18, Representative John Conyers (D) of Michigan introduced the "Health Insurance Industry Antitrust Enforcement Act of 2012," a bill that would repeal the McCarran-Ferguson Act's antitrust exemption for health and medical malpractice insurers.
Representative Conyers has long been a leader in advocating the repeal of the McCarran-Ferguson Act, and his new bill (H.R. 5838) tracks McCarran repeal language he has introduced in prior sessions of Congress. Specifically, the bill provides that "Nothing in the McCarran- Ferguson Act shall be construed to permit health insurance issuers or issuers of medical malpractice insurance to engage in any form of price fixing, bid rigging or market allocations in connection with the conduct of the business of providing insurance coverage." The bill would also make Section 5 of the Federal Trade Commission Act, which prohibits "unfair methods of competition," applicable to health insurers (currently the McCarran-Ferguson Act immunizes insurers from Section 5 enforcement actions as well). Finally, the bill would make Section 5 applicable to health insurers even if they are nonprofit entities, another potential obstacle to enforcement of Section 5 against some health insurers.
Representative Conyers' decision to introduce H.R. 5838 so late in the legislative session is somewhat surprising, particularly given that McCarran repeal legislation already passed in the House as part of H.R. 5 back in March of this year. H.R. 5, however, was a Republican sponsored bill that principally focused on medical malpractice reform, which many Democrats did not support. Moreover, the McCarran repeal language in H.R. 5 is different in some material respects from that proposed by Representative Conyers. For example, the repeal provisions of H.R. 5 apply only to health insurance, while the Conyers bill would repeal the exemption for both health and medical malpractice insurers. In addition, while H.R. 5 would prohibit private class action antitrust cases against health insurers, no such limitation is found in Representative Conyers' bill.
With Congress's August recess rapidly approaching, it seems unlikely that either Representative Conyers' new bill, or H.R. 5 for that matter, will be enacted into law before Congress adjourns for the year. However, it seems equally unlikely that a Congressional veteran like Representative Conyers would have introduced his bill, at this late date, if he had no intention to try to move it forward in some fashion. That being the case, at this juncture all that can be said with certainty is that time will tell. Stay tuned.
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