Blue Cross Blue Shield may have worked against competition

FARGO-The Red River is a border the Blue Cross Blue Shield plans in North Dakota and Minnesota agree not to cross in selling health insurance to customers.

Those exclusive territorial agreements form a hallmark of Blue Cross Blue Shield plans nationwide-which collectively insure one of every three Americans-and are at the heart of a pair of federal lawsuits alleging civil antitrust.

The lawsuits, pending in U.S. District Court in Alabama, were brought separately by providers as well as by individual and small group purchasers of health insurance, and seek class-action status.

Most of the 37 Blue Cross Blue Shield plans in the United States limit their operations to a single state, including those in North Dakota and Minnesota.

The only reason for the self-imposed geographical marketing restrictions, the providers' lawsuit contends, is to protect the insurers from competition. The restrictions are maintained by an illegal "market allocation conspiracy," the doctors and clinics argue.

Noridian Mutual Insurance Co., which does business as Blue Cross Blue Shield of North Dakota, commands a statewide market share of 56 percent, according to the providers' lawsuit.

Blue Cross Blue Shield of Minnesota's market share is 44 percent statewide, but in certain areas runs higher, including 56 percent in the Rochester area, 48 percent in the St. Cloud area and 46 percent in the Duluth area, according to figures cited by the providers' lawsuit.

The North Dakota Blues cover 390,000 people within the state and the Minnesota Blues cover 2.4 million, according to the lawsuit. Nationally, Blue Cross Blue Shield's provider network includes 92 percent of physicians and 96 percent of hospitals, according to the Blue Cross Blue Shield Association, also named in the lawsuits.

The Blues' market clout enables them to unfairly dictate payments for medical services on "take it or leave it" terms, according to the suing doctors and clinics.

For consumers, the Blues' anticompetitive practices, barring fellow Blue Cross Blue Shield plans from selling in competing markets, result in higher premiums, the subscribers' lawsuit argues.

Blue Cross Blue Shield of Minnesota and Blue Cross Blue Shield of North Dakota declined to comment on the lawsuits, referring questions to the Blue Cross Blue Shield Association, whose spokesman said its member plans provided improved access to "affordable, quality health care."

"The plans have served this important role for more than 80 years and, during that time, the Blue model of service has been validated and enforced by numerous courts and regulatory agencies," Blues association spokesman Caleb Weaver said in a statement.

"The plaintiffs' claims simply have no merit and we are vigorously defending ourselves in this litigation."

Before creating exclusive "service areas" to allocate markets, Blues plans did engage in competition, the lawsuits allege.

So far, the judge has rejected motions to dismiss the lawsuits, which now are in the discovery phase, in which the parties are gathering information to bolster their cases in preparation for possible trial.