We see it all the time: We think we have good health insurance, but then, right when we need it the most, the insurance company denies coverage for a needed medical procedure. Often, insurance coverage is denied for emerging treatment protocols that are recommended by our treating doctors. Why? The insurance company deems the procedure to be “experimental,” “investigative,” or “not medically necessary.”
All insurance companies do this, but it can be particularly difficult to challenge denials by Blue Cross Blue Shield (BCBS) health insurance carriers. BCBS carriers tend to make uniform coverage decisions nationwide, and this gives their determinations an unwarranted illusion of credibility.
Lurking in the background is In re Blue Cross Blue Shield Antitrust Litigation, a federal lawsuit that could ultimately give consumers better coverage from their BCBS providers. The plaintiffs in the lawsuit, who include BCBS health insurance plan subscribers and medical providers, allege antitrust violations involving licensing agreements that reduce competition in the market for health insurance and cause premiums to increase.
The lawsuit illustrates how BCBS does business. A national Blue Cross Blue Shield Association issues licenses to use the BCBS brands to about 36 different insurers throughout the country. Many, like BCBS of North Carolina, are set up as nonprofits. The biggest Blue in the pack is Anthem, which operates in 14 states. The antitrust lawsuit focuses on the anti-competitive practices of this network of BCBS entities.
On April 5, 2018, U.S. District Judge R. David Proctor issued a 59-page ruling, finding that there was evidence that “considered together, constitutes a per-se violation of the Sherman [antitrust] Act.” You can read a copy of the opinion by clicking the link below.
Judge Proctor’s opinion addressed pretrial motions, and a trial is a long way off. While the issues in the trial will focus on BCBS anti-competitive practices, it could ultimately have a beneficial effect on illuminating and challenging the manner in which BCBS entities make shared decisions on coverage for emerging, potentially life-saving medical procedures. We will be watching the case closely in the months to come.
Disclaimer: We are ERISA attorneys, but we are not your attorneys and this article does not create an attorney-client relationship. The information in this blog post is provided for general information purposes only, and may not reflect the current law in your jurisdiction. No information in this blog post should be construed or seen as legal advice, nor is it intended to be a substitute for legal counsel on any subject matter.