The Department of Justice has sided with Oscar Health in an ongoing dispute between the insurer and Blue Cross Blue Shield of Florida over broker agreements.
In a statement of interest (PDF) submitted to U.S. District Court, the DOJ urged the court not to dismiss the case. A federal judge is weighing a motion to dismiss from Florida Blue after rejecting a request from Oscar for an injunction.
Oscar filed the suit in November, alleging that Florida Blue’s relationship with brokers was preventing it from growing its customer base in the state’s Affordable Care Act market and thus violated antitrust laws.
Judge Paul Byron of the Middle District of Florida said, however, that Oscar had failed to prove that the deals with brokers were genuinely blocking it from expanding its reach in Florida.
Florida Blue offers more plans with broader networks, which could grow its market share, and Centene Corporation has been able to establish itself in the state, which indicates the market is competitive, Byron said.
The DOJ, however, wrote in its statement that the McCarran-Ferguson Act, a longstanding statute that exempts insurers from many federal regulations, doesn’t offer a strong enough legal foundation to dismiss Oscar’s claims.
Florida Blue’s exclusive broker policy is not central to the relationship it has with its members, and thus wouldn’t fall within the antitrust exemptions within McCarran-Ferguson, the DOJ said.
“The Supreme Court has stressed that the exemption 'is for the ‘business of insurance,’ not the ‘business of insurers,’” the DOJ wrote.
Oscar argues that Florida Blue strong-armed brokers into offering its exchange plans because Oscar’s alternative options were cheaper—and thus likely to attract consumers. More than 190 brokers in Florida have backed out of deals with Oscar under pressure from Florida Blue, according to the insurer.
The DOJ also agreed in the statement that Florida Blue enforced its policy through “coercion.”