[Congressional Record Volume 166, Number 163 (Monday, September 21, 2020)]
[House]
[Pages H4571-H4573]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            COMPETITIVE HEALTH INSURANCE REFORM ACT OF 2020

  Ms. SCANLON. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 1418) to restore the application of the Federal antitrust 
laws to the business of health insurance to protect competition and 
consumers, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 1418

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Competitive Health Insurance 
     Reform Act of 2020''.

     SEC. 2. RESTORING THE APPLICATION OF ANTITRUST LAWS TO THE 
                   BUSINESS OF HEALTH INSURANCE.

       (a) Amendment to McCarran-Ferguson Act.--Section 3 of the 
     Act of March 9, 1945 (15 U.S.C. 1013), commonly known as the 
     McCarran-Ferguson Act, is amended by adding at the end the 
     following:
       ``(c)(1) Nothing contained in this Act shall modify, 
     impair, or supersede the operation of any of the antitrust 
     laws with respect to the business of health insurance 
     (including the business of dental insurance and limited-scope 
     dental benefits).
       ``(2) Paragraph (1) shall not apply with respect to making 
     a contract, or engaging in a combination or conspiracy--
       ``(A) to collect, compile, or disseminate historical loss 
     data;
       ``(B) to determine a loss development factor applicable to 
     historical loss data;
       ``(C) to perform actuarial services if such contract, 
     combination, or conspiracy does not involve a restraint of 
     trade; or
       ``(D) to develop or disseminate a standard insurance policy 
     form (including a standard addendum to an insurance policy 
     form and standard terminology in an insurance policy form) if 
     such contract, combination, or conspiracy is not to adhere to 
     such standard form or require adherence to such standard 
     form.
       ``(3) For purposes of this subsection--
       ``(A) the term `antitrust laws' has the meaning given it in 
     subsection (a) of the first section of the Clayton Act (15 
     U.S.C. 12), except that such term includes section 5 of the 
     Federal Trade Commission Act (15 U.S.C. 45) to the extent 
     that such section 5 applies to unfair methods of competition;
       ``(B) the term `business of health insurance (including the 
     business of dental insurance and limited-scope dental 
     benefits)' does not include--
       ``(i) the business of life insurance (including annuities); 
     or
       ``(ii) the business of property or casualty insurance, 
     including but not limited to--
       ``(I) any insurance or benefits defined as `excepted 
     benefits' under paragraph (1), subparagraph (B) or (C) of 
     paragraph (2), or

[[Page H4572]]

     paragraph (3) of section 9832(c) of the Internal Revenue Code 
     of 1986 (26 U.S.C. 9832(c)) whether offered separately or in 
     combination with insurance or benefits described in paragraph 
     (2)(A) of such section; and
       ``(II) any other line of insurance that is classified as 
     property or casualty insurance under State law;
       ``(C) the term `historical loss data' means information 
     respecting claims paid, or reserves held for claims reported, 
     by any person engaged in the business of insurance; and
       ``(D) the term `loss development factor' means an 
     adjustment to be made to reserves held for losses incurred 
     for claims reported by any person engaged in the business of 
     insurance, for the purpose of bringing such reserves to an 
     ultimate paid basis.''.
       (b) Related Provision.--For purposes of section 5 of the 
     Federal Trade Commission Act (15 U.S.C. 45) to the extent 
     such section applies to unfair methods of competition, 
     section 3(c) of the McCarran-Ferguson Act shall apply with 
     respect to the business of health insurance without regard to 
     whether such business is carried on for profit, 
     notwithstanding the definition of ``Corporation'' contained 
     in section 4 of the Federal Trade Commission Act.

     SEC. 3. DETERMINATION OF BUDGETARY EFFECTS.

       The budgetary effects of this Act, for the purpose of 
     complying with the Statutory Pay-As-You-Go Act of 2010, shall 
     be determined by reference to the latest statement titled 
     ``Budgetary Effects of PAYGO Legislation'' for this Act, 
     submitted for printing in the Congressional Record by the 
     Chairman of the House Budget Committee, provided that such 
     statement has been submitted prior to the vote on passage.

  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
Pennsylvania (Ms. Scanlon) and the gentleman from North Dakota (Mr. 
Armstrong) each will control 20 minutes.
  The Chair recognizes the gentlewoman from Pennsylvania.


                             General Leave

  Ms. SCANLON. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days to revise and extend their remarks and include 
extraneous materials on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from Pennsylvania?
  There was no objection.
  Ms. SCANLON. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in strong support of H.R. 1418, the Competitive 
Health Insurance Reform Act.
  This commonsense legislation repeals a longstanding antitrust 
exemption for the health insurance industry under the McCarran-Ferguson 
Act. It does so for price-fixing, bid-rigging, and market allocation--
the most egregious kinds of anticompetitive conduct. There is 
absolutely no justification for this broad antitrust exemption for the 
business of health insurance.
  Congress passed the McCarran-Ferguson Act in response to a 1944 
Supreme Court decision finding that the antitrust laws applied to the 
business of insurance. Both insurance companies and the States 
expressed concern about that decision. Insurance companies worried that 
it could jeopardize certain collective practices, like joint rate-
setting and the pooling of historical data, and the States were 
concerned about losing their authority to regulate and tax the business 
of insurance.
  To address these issues, McCarran-Ferguson provides that Federal 
antitrust laws apply to the business of insurance only to the extent 
that it is not regulated by State law. Unfortunately, this resulted in 
a broad antitrust exemption. Industry and State revenue concerns, 
rather than the vital goals of protecting competition and consumers, 
were the primary drivers of the act.
  In passing McCarran-Ferguson, Congress initially intended to provide 
only a temporary exemption and, unfortunately, gave little 
consideration to competition concerns.
  Not surprisingly, there is broad support for ending this safe harbor 
for antitrust violations that are criminally illegal. As the Antitrust 
Modernization Commission Report noted in 2007, the McCarran-Ferguson 
exemption should be repealed because it has outlived any utility it may 
have had and is among the most ill-conceived and egregious examples.
  Furthermore, it is far from clear that the McCarran-Ferguson 
antitrust exemption was ever justified in the first place. Antitrust 
exemption should be exceedingly rare and should be enacted only where 
there are strong policy reasons for such exemption.
  Carving out an entire part of a healthcare system from the antitrust 
laws should be unthinkable, particularly when healthcare costs are so 
high for many families. That is why it is time to repeal the special 
exemption for the insurance industry.
  Mr. Speaker, I thank my colleague, Chairman DeFazio, for his 
leadership on this important legislation. I urge my colleagues to 
support this bill, which previously passed the House with an 
overwhelming bipartisan vote of 416-7, and I reserve the balance of my 
time.
  Mr. ARMSTRONG. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, under current law, the health and dental insurance 
industries are exempt from some Federal competition laws and related 
enforcement actions.
  Congress established this exemption in 1945 at a time when Federal 
antitrust law was less developed and more likely to disrupt 
procompetitive practices in the insurance industry under State laws.
  H.R. 1418 would update antitrust law and apply it to the business of 
health insurance in ways designed to better protect consumers. At the 
same time, H.R. 1418 would still permit the health insurance industry 
to engage in procompetitive collaboration that benefits customers.
  Mr. Speaker, this bill represents another small step designed to 
improve America's healthcare system. I encourage my colleagues to 
support this bill, and I reserve the balance of my time.
  Ms. SCANLON. Mr. Speaker, I yield 5 minutes to the gentleman from 
Oregon (Mr. DeFazio).
  Mr. DeFAZIO. Mr. Speaker, I thank the gentlewoman for yielding.
  Mr. Speaker, this bill, H.R. 1418, has 51 cosponsors in the House: 26 
Democrats, 25 Republicans. It is endorsed by 23 national organizations, 
including Consumer Reports, which estimates it will save consumers 
billions of dollars a year in health insurance costs, other consumer 
rights groups, the American Dental Association, Hospital Association, 
and more.
  There are only two for-profit industries in America that have an 
exemption from antitrust law: One is professional baseball, dating from 
the 1920s, and the other is the vital area of health insurance, dating 
to the 1940s. This bill will take away that exemption.
  What does that mean? Well, right now, insurance companies can and do 
get together and collude. Before COVID, they would go to some fancy 
resorts, get together, and say: How about you stay out of North Dakota; 
we will stay out of South Dakota? You stay out of Oregon; we will stay 
out of Washington. Let's divide up the pie here. You decide where you 
are selling, and we will decide where we are selling. Oh, and by the 
way, here are the things we don't want to cover. Here are the people we 
want to redline and exclude.
  That is all legal. That is all legal.
  What does it do? It drives up the cost and the availability is 
diminished for Americans. And now here we are in the midst of COVID and 
the estimates are that 5 million people have lost their health 
insurance during COVID--5 million people--yet, last year, the health 
insurance industry made an eye-popping $33 billion in profits. This 
year, the reports are they are doing even better, with more and more 
people uninsured.

  How are they doing that? Well, they are jacking up copays. They are 
jacking up deductibles. They are excluding all sorts of treatments from 
coverage. And it is all legal, and they can all get together and say: 
Hey, if you won't cover this, we won't cover it. That way we won't lose 
customers; you won't lose customers.
  What a sweet deal. What a sweet deal.
  Well, one in four Americans hesitated to go to the doctor--people who 
were insured--or to fill a prescription, get needed treatment because 
of the extraordinary copays and high deductibles. So a lot of people 
are paying 2,000, 3,000, 4,000, 5,000 bucks before they get any 
coverage on these so-called policies.
  What is this about? It is about greed. And it is time to end.
  This is a vital service for the American people. This bill was part 
of the original Affordable Care Act in the House--my provision. It was 
stripped

[[Page H4573]]

out in the Senate at the behest of a former insurance executive--good 
old Senate--so it didn't get into the final version of ACA. They took 
out a lot of other good things, too. The House bill was way preferable 
with national exchanges, not-for-profit, et cetera. But, in any case, 
it was stripped out.
  So the House held another vote after the passage of the Affordable 
Care Act in 2010. Tom Perriello, then-Representative for Virginia, 
offered my bill on the floor and it passed by 406-19.
  What kind of bills pass 406-19?
  And then my colead on the bill, Representative Gosar, introduced the 
bill in 2017, and it passed 416-7 in the most bitterly partisan 
atmosphere in Congress since post-Civil War--416-7.
  It is time to get this done.
  Finally, we are seeing some action in the Senate. Senator Leahy has 
introduced a bill, ranking member of the Committee on the Judiciary, 
and Senator Daines. So there are three Democrats, three Republicans on 
the bill. Hopefully, the Senate will see the wisdom in helping 
Americans afford health insurance, lowering their deductibles, lowering 
their copays, lowering their exclusions on prescription drugs.
  Mr. Speaker, even under Medicare part D, they are always jacking 
people around: Oh, sorry, you can't have that medication anymore. We 
just took it off the list last week.
  They can do it any time they want. And they can talk to the other 
insurers, and say: Hey, we are taking that drug off our list. Will you 
take it off your list, because we don't want people to switch to your 
plan.
  That is all legal now.
  Mr. Speaker, after this bill passes, it will no longer be legal. This 
will be a tremendous service to the American people at any time in 
history, but particularly now in times of COVID and crisis.
  Mr. Speaker, I urge my colleagues to support this legislation.
  Mr. ARMSTRONG. Mr. Speaker, this is a good bill. I urge my colleagues 
to support it, and I yield back the balance of my time.
  Ms. SCANLON. Mr. Speaker, I yield myself such time as I may consume.
  Healthy competition in health insurance markets is one of the most 
critical elements for ensuring that Americans have access to high-
quality, affordable healthcare. When insurance companies are forced to 
compete, the American people win.
  Unfortunately, too many families are still paying higher premiums and 
out-of-pocket costs, in part, because of anticompetitive practices that 
health insurance giants are allowed to engage in under existing law.
  What is more, there is a statutory loophole for this conduct that 
allows insurers to engage in egregious actions like price-fixing, bid-
rigging, and market allocation with total impunity so long as they are 
engaged in the business of insurance and it is regulated by a State.
  There should be no safe harbor whatsoever for this conduct which 
allows insurers to increase the cost of health insurance and impose 
additional burdens on families across our Nation when they are already 
struggling to make ends meet.
  Health insurance companies should be subject to antitrust liability 
to the extent that they collude or otherwise engage in anticompetitive 
behavior. H.R. 1418 would achieve this result.
  Mr. Speaker, I thank Chairman DeFazio for his leadership on this 
bill, and I urge my colleagues to vote in favor of this legislation 
that is long overdue.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentlewoman from Pennsylvania (Ms. Scanlon) that the House suspend the 
rules and pass the bill, H.R. 1418, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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