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Senators press FTC, DOJ on antitrust reform

Aug. 4 deadline requested for update

July 22, 2021

By Jennifer Garvin

Washington — Two senators are asking the Federal Trade Commission and Department of Justice for an update on their efforts to combat anticompetitive conduct in the health insurance industry following the repeal of the McCarran-Ferguson antitrust exemption.

The Competitive Health Insurance Reform Act became law on Jan. 13 and is aimed at improving transparency. The law is the culmination of a multi-years effort by the ADA and dentists to persuade Congress that health care insurance, including dental plans, should no longer be protected from some of the federal antitrust laws.

In a July 20 letter to both agencies, Sens. Patrick Leahy, D-Vt., and Steve Daines, R-Mont., said "public information is lacking” on what steps the FTC or DOJ have taken to extend antitrust enforcement to the health insurance industry.

ADA President Daniel J. Klemmedson thanked the senators for sending the letter and said the Association hopes it will lead the agencies to investigate possible anticompetitive practices and activities of health care insurers.

“The ADA is confident that increased competition among health insurance and dental plans will lead to improved coverage for patients and more attractive terms for dentists who participate,” Dr. Klemmedson said. “It’s a win for everyone.”

Sens. Leahy and Daines gave the FTC and DOJ an Aug. 4 deadline to answer the following questions:

• “Since Jan. 13, 2021, what legal actions, if any, has your department taken to enforce antitrust laws against companies in the business of health insurance that are no longer exempt from enforcement under the McCarran-Ferguson Act?”

• “Specifically, what has your department done since Jan. 13, 2021 to investigate unlawful price fixing, bid rigging, or market allocation by health insurers?”

• “Aside from [Oscar Ins. Co. of Fla. v. Blue Cross & Blue Shield of Fla.] has your department submitted any amicus briefs, notices of supplemental authority, business advisory opinions, or other filings regarding the legal consequences of the [Competitive Health Insurance Reform Act] in any private litigation? If so, which cases?”

• “What steps, if any, has your department taken to craft new enforcement guidelines that account for the [Competitive Health Insurance Reform Act] and its application to the health insurance industry?”

• For the FTC: “What, if any, potential regulations has the Commission considered — or might consider — issuing with regard to unfair or deceptive practices by health insurance companies no longer exempt from antitrust law?”

The repeal of the McCarran-Ferguson antitrust exemption for health insurance companies was the subject of the May 17 Tooth Talk podcast. During the one-hour podcast, Tooth Talk Hosts Sarah Milligan and Peter Aiello sat down with George Slover, senior policy counsel at Consumer Reports, who previously worked in the Justice Dept.’s Antitrust Division and at the House Judiciary Committee, to discuss the role dentists played in the passing the Competitive Health Insurance Reform Act.

To listen to the episode, visit the Tooth Talk website.

The ADA has developed an FAQ for ADA dentists with questions about how this law will affect dentists and dental practices. Download the one-page summary and the ADA FAQ.