For nearly 75 years, the McCarran-Ferguson Act established a broad – although not unlimited – exemption from the application of federal law to “the business of insurance,” finding “the continued regulation and taxation by the several states [of that business] in the public interest.” As a result, McCarran-Ferguson exempted insurers from federal antitrust liability where their activity in question (1) was part of the “business of insurance,” (2) was regulated by state law and (3) did not constitute a “boycott, coercion, or intimidation.” With the passage of the Competitive Health Insurance Reform Act (CHIRA) into law on Jan. 13, 2021 however, the activities of health insurers, by and large, are no longer exempt from the federal antitrust laws.
Borrowers of Paycheck Protection Program (PPP) loans – together with their affiliates – who have loans in excess of $2 million and seek loan forgiveness will potentially need to complete necessity questionnaires according to the Small Business Administration. There are separate forms for for-profit and non-profit businesses and will likely affect 52,000 borrowers.
My colleagues Jack Beeler, Cat Rice and Jack Meadows explain the purpose and questions asked in these questionnaires in this law alert.
As we adapt to the “new normal,” producers and suppliers at all levels of the distribution chain must continue to be cognizant of their pricing and the laws that seek to place a ceiling on those prices. Cases continue to be brought and legislation proposed.
The confluence of forces due to COVID-19 is likely to affect the healthcare industry in serious and unpredictable ways. And the antitrust laws, as well as how they are enforced, will play a big part in shaping (or re-shaping) the industry.
With the contracting economy making capital more difficult to obtain and politicians calling for a moratorium on mergers, especially those which could reduce healthcare capacity, healthcare companies must think carefully and strategically about where they turn for resources and in which forms they come.