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What is this antitrust status?

In the midst of all the heated debate about healthcare reform, there is one element that tends to get slightly less publicity. Yet, when it comes down to making the reform work, it is one of the most important changes to push through both the House and the Senate. To understand the issue, we need to go back to the Supreme Court decision in United States v. South-Eastern Underwriters Association which, in 1944, allowed the federal government to apply antitrust laws to insurance companies by extending the Commerce Clause in the US Constitution to break up abusive monopoly control. For many years, the lack of competition had allowed South-Eastern to fix outrageously high premium rates and to defend their monopoly through intimidation and coercion in six US states. When the Supreme Court finally signalled a potential end to these abusive practices, the McCarran-Ferguson Act of 1945 appeared. The key provision exempts insurance companies from the general run of federal laws imposing antitrust limits so long as each state puts local regulations in force. This has produced a patchwork of state laws which, to a greater or lesser extent, encourage free competition between insurance companies.

Why should this matter? It is an undisputed fact that, as competition declines, the remaining one or two suppliers in a market have the power to abuse their dominant position. The results are usually higher prices, lower quality products and poor service standards. The interests of the consumer are lost in the rush to extract the maximum possible profit. In the healthcare industry, consumers have been penalised as insurers refuse to accept people with pre-existing conditions and refuse renewal of policies if expensive longer term treatment appears necessary. You cannot have failed to notice the steady increases in the premium rates - in fact, there has been a slightly faster rate of increase over the last year despite the fact of the recession. This is made possible because there is a lack of real competition between insurers in the majority of US states. The House has already included provisions in the bill to repeal this exemption from federal regulation. The Senate is now about to debate the same issue. Without this repeal included in the final law, insurance companies will be able to continue fixing prices and dividing up the market as it suits them. You will remain helpless victims. With the repeal in place, insurers will suddenly have to compete with each other. This should drive down premium rates and improve the quality of the service delivered. However you look at it, you will benefit directly.

Unfortunately, it is unclear whether there is sufficient support among the Senate Democrats for passing this repeal. It seems possible that the special interests that persuaded the original legislators to pass the exemption law in 1945 may prevail in preventing its repeal. In many ways, this is an extraordinary situation. With the majority of adult Americans victimised by the health insurance industry, you would imagine there would be a groundswell of angry voters insisting their pain should end. Yet the reverse has been happening with most of the obvious anger aimed at preventing any positive reform of the health insurance market. It seems insurers can fool most of the people all the time.


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