Competitive Health Insurance Reform Act of 2019

II 116TH CONGRESS 1ST SESSION S. 350 To restore the application of the Federal antitrust laws to the business of health insurance to protect competition and consumers. IN THE SENATE OF THE UNITED STATES FEBRUARY 6, 2019 Mr. DAINES (for himself and Mr. LEAHY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To restore the application of the Federal antitrust laws to the business of health insurance to protect competition and consumers. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Competitive Health 4 Insurance Reform Act of 2019’’. 5 SEC. 2. RESTORING THE APPLICATION OF ANTITRUST 6 LAWS TO THE BUSINESS OF HEALTH INSUR- 7 ANCE. 8 (a) AMENDMENT TO MCCARRAN-FERGUSON ACT.— 9 Section 3 of the Act of March 9, 1945 (15 U.S.C. 1013), 10 VerDate Sep 11 2014 00:21 Feb 14, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S350.IS S350 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 350 IS commonly known as the McCarran-Ferguson Act, is 1 amended by adding at the end the following: 2 ‘‘(c)(1) Nothing contained in this Act shall modify, 3 impair, or supersede the operation of any of the antitrust 4 laws with respect to the business of health insurance (in- 5 cluding the business of dental insurance and limited-scope 6 dental benefits). 7 ‘‘(2) Paragraph (1) shall not apply with respect to 8 making a contract, or engaging in a combination or con- 9 spiracy— 10 ‘‘(A) to collect, compile, or disseminate histor- 11 ical loss data; 12 ‘‘(B) to determine a loss development factor ap- 13 plicable to historical loss data; 14 ‘‘(C) to perform actuarial services if such con- 15 tract, combination, or conspiracy does not involve a 16 restraint of trade; or 17 ‘‘(D) to develop or disseminate a standard in- 18 surance policy form (including a standard addendum 19 to an insurance policy form and standard termi- 20 nology in an insurance policy form) if such contract, 21 combination, or conspiracy is not to adhere to such 22 standard form or require adherence to such standard 23 form. 24 ‘‘(3) For purposes of this subsection— 25 VerDate Sep 11 2014 00:21 Feb 14, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S350.IS S350 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 350 IS ‘‘(A) the term ‘antitrust laws’ has the meaning 1 given it in subsection (a) of the first section of the 2 Clayton Act (15 U.S.C. 12), except that such term 3 includes section 5 of the Federal Trade Commission 4 Act (15 U.S.C. 45) to the extent that such section 5 5 applies to unfair methods of competition; 6 ‘‘(B) the term ‘business of health insurance (in- 7 cluding the business of dental insurance and limited- 8 scope dental benefits)’ does not include— 9 ‘‘(i) the business of life insurance (includ- 10 ing annuities); or 11 ‘‘(ii) the business of property or casualty 12 insurance, including but not limited to— 13 ‘‘(I) any insurance or benefits defined 14 as ‘excepted benefits’ under paragraph (1), 15 subparagraph (B) or (C) of paragraph (2), 16 or paragraph (3) of section 9832(c) of the 17 Internal Revenue Code of 1986 (26 U.S.C. 18 9832(c)) whether offered separately or in 19 combination with insurance or benefits de- 20 scribed in paragraph (2)(A) of such sec- 21 tion; and 22 ‘‘(II) any other line of insurance that 23 is classified as property or casualty insur- 24 ance under State law; 25 VerDate Sep 11 2014 00:21 Feb 14, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S350.IS S350 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 350 IS ‘‘(C) the term ‘historical loss data’ means infor- 1 mation respecting claims paid, or reserves held for 2 claims reported, by any person engaged in the busi- 3 ness of insurance; and 4 ‘‘(D) the term ‘loss development factor’ means 5 an adjustment to be made to reserves held for losses 6 incurred for claims reported by any person engaged 7 in the business of insurance, for the purpose of 8 bringing such reserves to an ultimate paid basis.’’. 9 (b) RELATED PROVISION.—For purposes of section 10 5 of the Federal Trade Commission Act (15 U.S.C. 45) 11 to the extent such section applies to unfair methods of 12 competition, section 3(c) of the McCarran-Ferguson Act 13 shall apply with respect to the business of health insurance 14 without regard to whether such business is carried on for 15 profit, notwithstanding the definition of ‘‘Corporation’’ 16 contained in section 4 of the Federal Trade Commission 17 Act. 18 Æ VerDate Sep 11 2014 00:21 Feb 14, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6301 E:\BILLS\S350.IS S350 pamtmann on DSKBFK8HB2PROD with BILLS