Blue Cross antitrust legal woes linger as settlement opt-outs seek damages
September 29, 2021
More than 30 people who opted out of Blue Cross Blue Shield’s $2.67 billion antitrust settlement sued the health plan’s national association on Monday, alleging the insurers’ monopolistic activities increased healthcare costs while decreasing quality of care.
The suit, filed in the U.S. District Court of the Southern District of Florida, comes on behalf of 32 people living in five states and the District of Columbia who were at some point insured under one of 18 Blues plans issued by their employers. These plaintiffs chose not to participate in the preliminary settlement approved by federal Judge David Proctor of the northeastern district of Alabama last year.
The prior agreement aims to resolve a major lawsuit first filed in 2012 by customers who accused the Blues companies of limiting competition and product development, and of violating the Sherman Antitrust Act, an 1890 federal law that outlaws monopolies and restraint of trade. By opting out, the plaintiffs who were individually insured are objecting to the deal and seeking separate—and presumably larger—payouts. Blue Cross and Blue Shield companies provide health coverage to more than 100 million people, or one in three U.S. residents.
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The insurers’ “anticompetitive agreements, implementing conduct and foreclosure of competition have prevented consumers from being offered competitive premium prices,” the lawsuit says. The companies also “prevented consumers from being offered health insurance policies that offered better services and coverage that would result from competition in the marketplace.”
The plaintiffs are asking the court for injunctive relief that would stop Blue Cross and Blue Shield affiliates from restricting competition between Blues carriers, limit how the companies can use their Blues branding and ending a practice requiring a specific portion of company revenues come from Blue Cross and Blue Shield policies. The customers also are seeking treble damages, reasonable attorneys’ fees and any other legal or equitable relief deemed just and proper, along with a jury trial.
As part of the preliminary antitrust settlement, the Blue Cross and Blue Shield Association rescinded a rule that limited the amount of revenue its 35 member plans could generate from non-Blues-related businesses.
The Blue Cross and Blue Shield Association declined to comment on the lawsuit. “Blue Cross Blue Shield plans remain focused on the goal we have had for more than 90 years: improving access to quality healthcare for all Americans and the health of our local communities,” a spokesperson wrote in an email.
There may be other lawsuits coming from Blue Cross and Blue Shield customers who opted out of the antitrust settlement.
A group of large, national, self-funded clients also submitted an informal request on Monday to opt out of the preliminary deal the Alabama federal court approved. The request is sealed. But a separate brief filed in the Alabama federal court the same day indicates that the group of plaintiffs believes the agreement unfairly treats self-funded unions, churches, Taft-Hartley trusts, employer welfare arrangements, association health plans and retirees relative to what some large national employers are due to receive.
Under the terms of the settlement agreement, national accounts must show that 70% of their plan members resided outside the state where the companies are headquartered, a requirement that fewer than one-third of all national accounts met. “The parties got caught with their hand in the cookie jar,” the brief says.
These self-funded clients also request that the court disclose all documents related to the settlement clause that promises the antitrust plaintiffs’ attorneys $667.5 million of the $2.67 billion settlement.
A separate suit from healthcare providers is still pending in the Alabama federal court. Physicians allege the Blues’ anticompetitive practices depressed payment rates for doctors. Proctor is expected to issue a final ruling on the matter this fall.