Oregon Law Review : Vol. 89, No. 3, p. 885-914 : Market Allocation in the Health Insurance Industry and the McCarran- Ferguson Act
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Date
2011
Authors
Stutz, Randy
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon School of Law
Abstract
This Article examines the scope of the McCarran-Ferguson Act under existing
Supreme Court precedent and reviews the sparse case law addressing
the MFA’s applicability to market allocation schemes in the insurance
industry, including the Blue Cross Blue Shield market allocation scheme. This Article
concludes that whether any market allocation scheme is exempt is a
close, fact-specific question that courts will not answer in the abstract.
On any set of facts, insurers will have considerable leeway in
attempting to prove that a given market allocation scheme should be
treated as the business of insurance and thus exempt if regulated by
state law. A clear determination that the BCBS market allocation
scheme is not exempt, or congressional action to repeal the MFA as to
the health insurance industry, would remove a primary obstacle to a
challenge of the scheme, but it is not clear whether this would affect
competitive dynamics among BCBS companies.
Description
30 p.
Keywords
Health insurance
Citation
89 Or. L. Rev. 89 (2011)