UPDATE: MAY 20, 2019: Oscar is also asking the judge to deny the motion to dismiss its antitrust case against Florida Blue Cross Blue Shield. The startup health insurer says Florida Blue is using "flawed arguments" to defend its use of exclusive broker policies.
Oscar says Florida Blue is now citing cases that undermine its own legal argument that the McCarran-Ferguson exemption be applied to this case. The act shields the business of insurance from some federal regulation including antitrust laws.
These cases Florida Blue cites "provide Florida Blue no support, and in fact instruct that the McCarran-Ferguson exemption be interpreted far more narrowly than Florida Blue proposes," Oscar's latest filing states, adding that Florida Blue shows that it "desperate" to avoid "competition on the merits."
- The Department of Justice is siding with health insurer Oscar in its antitrust lawsuit against Florida Blue Cross Blue Shield and its use of an exclusive broker policy. DOJ is asking a federal judge not to toss Oscar's antitrust claims against Florida Blue, according to DOJ's statement of interest filing in the case.
- On Wednesday, Florida Blue responded, telling the federal judge in Florida not to give any "special weight" to DOJ's statement. "It is not even clear that the Government is entitled to submit a view on this matter at all," Florida Blue said.
- At issue is the McCarran-Ferguson Act, which shields the business of insurance from some federal regulation including antitrust laws. Florida Blue argues its exclusive broker policy should be exempt from antitrust enforcement while the DOJ argues it is trying to ensure the law is applied correctly.
The case centers on the use of exclusive broker policies, which Oscar argues hampers competition and harms consumers shopping for coverage in the Affordable Care Act marketplace in Florida.
Florida Blue's exclusive broker policy bars brokers from selling competitors' plans — in this case, Oscar — if they already agreed to sell Florida Blue plans. Oscar, a new entrant to Florida's individual exchange market, said 190 brokers backed out of deals to sell Oscar plans after Florida Blue allegedly threatened to cut off brokers from selling other lines of Florida Blue insurance.
The relative newcomer to insurance was co-founded by Josh Kushner, brother to Jared Kushner, President Donald Trump's son-in-law.
Florida Blue maintains exclusive broker policies are commonplace and are used by more carriers than just Florida Blue. Some brokers are considered independent contractors, and "may terminate their agreements with Florida Blue at any time if they wish to sell another carrier’s products," Florida Blue told Healthcare Dive.
Earlier this year, a judge sided with Florida Blue and refused to bar Florida Blue from enforcing its exclusive contracts.
District Court Judge Paul Byron said consumers can buy coverage without brokers and that other new entrants, such as Centene, have succeeded despite the exclusive contracts.
"It is not uncommon for the Department of Justice to seek to weigh in on legal issues in which it believes it may have an interest," Florida Blue said in a statement to Healthcare Dive. "Florida Blue is continuing to defend this lawsuit vigorously, while keeping our focus on our mission: helping the people and communities of Florida to achieve better health."