[Congressional Record Volume 166, Number 221 (Tuesday, December 29, 2020)]
[Senate]
[Pages S7966-S7967]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                COMPETITIVE HEALTH INSURANCE REFORM ACT

  Mr. DAINES. Mr. President, I rise today to speak about my bipartisan 
legislation, the Competitive Health Insurance Reform Act, which I 
introduced with my colleague Senator Patrick Leahy. This is important 
legislation that will protect consumers from anticompetitive practices 
by repealing the outdated antitrust exemption for the health insurance 
industry. This bill has wide bipartisan support, as well as a strong 
history of near-unanimous congressional consensus, having passed the 
House of Representatives three times, most recently this September.
  In 1944, the Supreme Court ruled in United States v. South-Eastern 
Underwriters that the business of insurance was a form of interstate 
commerce. This meant that the health insurance industry would be 
subject to Federal antitrust laws under the Commerce Clause of the 
Constitution. The insurance industry began raising uncertainties about 
whether this meant that States would no longer have authority to 
regulate insurance. When Congress acted to reaffirm this State 
authority, in the McCarran-Ferguson Act, the insurance industry managed 
to add a last-minute special-interest loophole that exempted the 
business of insurance from Federal antitrust laws.
  It has become clear that this antiquated exemption has effectively 
given insurance companies the power to collude to drive up prices, 
restrict competition, and deny consumers choice. The large health 
insurance companies of today have taken advantage of this exemption to 
abuse the market and artificially inflate healthcare costs. As a 
result, consumers are paying higher prices to get basic healthcare 
services, which couldn't be a worse outcome in the middle of a major 
pandemic.
  I recognize concerns have been raised about whether this legislation 
might impair or create uncertainty regarding the authority of State 
insurance regulators. I appreciate hearing from all stakeholders and 
wish to put those concerns to rest by making clear the intent and scope 
of the bill. This legislation merely amends a peripheral provision of 
the McCarran-Ferguson Act containing an antiquated exemption from 
Federal antitrust laws as it applies to health insurance companies. It 
does not in any way interfere with, supersede, or abrogate the 
authority provided and guaranteed by the McCarran-Ferguson Act to State 
insurance regulators to regulate the health insurance industry.
  This legislation would ensure that health insurance companies would 
be subject to Federal antitrust laws in the same way as the rest of the 
American economy, including other regulated sectors. Most importantly, 
as this bill does not disturb any of the authority provided to State 
insurance regulators under the McCarran-Ferguson Act, it does not 
empower Federal authorities to interfere with, supersede, or prevent 
states from regulating the health insurance industry however they see 
fit.
  Simply put, this legislation would give the Department of Justice and 
the Federal Trade Commission authority to apply antitrust laws to 
anticompetitive practices in the health insurance industry. 
Furthermore, it is the intent of the authors of this legislation that 
the DOJ and FTC notify and work with states on investigations they have 
received or are undertaking that involve health insurance entities in 
their state.
  The Competitive Health Insurance Reform Act will restore full 
transparency, promote oversight, and encourage competition within the 
health insurance industry. I look forward to this legislation being 
signed into law by the President.
  Ms. COLLINS. Mr. President, I appreciate Senator Daines joining me to 
clarify the intent of the Competitive Health Insurance Reform Act of 
2019. This legislation, which Senator Daines has introduced with 
Senator Leahy, would modify the McCarran-Ferguson Act by eliminating 
the health insurance industry's exemption from Federal antitrust laws. 
That sounds like a good idea, but it has implications for longstanding 
State regulation of the insurance industry.
  States have had the primary responsibility for the regulation of 
health insurance since the 1940s. Given my past experience as 
commissioner of Maine's Department of Professional and Financial 
Regulation, I know firsthand that State insurance regulators do a good 
job of responding to the needs and concerns of their insurance 
consumers. To protect consumers, State insurance

[[Page S7967]]

regulators hold probing hearings on rate requests which often lead to 
lower rates being approved. Most State insurance regulators have 
consumer protection advocates who resolve disputes between insurers and 
individual consumers. State regulators do not tolerate unfair or 
anticompetitive practices. As the National Association of Insurance 
Commissioners wrote to the leaders of the Senate and the Senate 
Judiciary Committee, ``The potential for bid rigging, price-fixing and 
market allocation is of great concern to state insurance regulators and 
we share your view that such practices would be harmful to consumers 
and should not be tolerated. However, we want to assure you that these 
activities are not permitted under state law. Indeed, the state 
insurance regulators in all states actively enforce their antitrust 
rules and review rates to ensure they are actuarially justified, 
sufficient for solvency and nondiscriminatory.''
  Based on this experience, I have consistently raised concerns about 
legislation that could interfere with the current State-level 
regulation of insurance and could ultimately harm Maine consumers and 
smaller insurers. These concerns extend to the Competitive Health 
Insurance Reform Act.
  While the bill does not directly modify the portion of McCarran-
Ferguson that affirms State regulatory authority, it, however, does add 
a layer of Federal review, and we need to ensure that in doing so we do 
not create increased confusion, cost, and possible conflicts between 
State and Federal efforts.
  This is why it is very important to make clear Congress's intent that 
along with the changes specified in the bill, it is Congress's 
expectation that the Department of Justice and the Federal Trade 
Commission must notify State bureaus of insurance and attorneys general 
of any complaints or investigations they have received or are 
performing that involve entities in their state. I appreciate Senator 
Daines' willingness to join me today to ensure this intent is clearly 
stated in the Congressional Record.
  Given the agreement to provide formal clarification of the 
expectation that DOJ and FTC shall provide notification to States 
regarding complaints or investigations they have received or are 
performing, I will withdraw my objection to passage of this 
legislation.
  Thank you.

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