Blue Cross Blue Shield Antitrust Settlement FAQs
Why was the lawsuit filed?
Whatley Kallas brought the lawsuit on behalf of Providers across the U.S. who have provided services, equipment or supplies to members of any Blue Cross Blue Shield plan from July 24, 2008 until October 4, 2024. The Provider Plaintiffs in the case alleged that the Blue Cross Blue Shield plans violated antitrust laws by illegally dividing the United States into “Service Areas” and agreeing not to compete in those areas. The Provider Plaintiffs also claimed that the Settling Defendants (Blue Cross Blue Shield) fixed prices for services provided through the BlueCard Program.
The Provider Plaintiffs assembled work groups consisting of different types of providers who are involved in and helped inform the case, including representatives of:
- Large healthcare systems
- Teaching hospitals
- Rural hospitals
- Physicians
- Ancillary Providers
- Provider Associations
The settlement aims to address prevalent, longstanding issues created by the burdensome and inefficient BlueCard Program.
The settlement also outlines crucial changes in the business relationship between Blue Cross Blue Shield Association member plans – all 33 independent Blues – that will transform the BlueCard Program and improve how the Blues process claims, communicate with, and make payments to Providers. The new transformation parameters outlined in the settlement establish Blue Plan accountability, alleviate and address resource-draining administrative burdens and inefficiencies currently experienced by Providers, as well as reduce barriers to patient care.
Court documents with full information regarding the Settlement and Injunctive Relief can be found here.
Which Blue Cross Blue Shield plans are impacted?
All the Blue Cross Blue Shield entities in the country (all 33 independent Blues), and the Blue Cross Blue Shield Association are impacted.
What is included in the settlement?
The settlement includes a $2.8 billion cash payment into a settlement fund, as well as hundreds of millions of dollars in investments by the Blues to implement improvements for the benefit of Providers. The value to healthcare providers of those benefits far exceeds the costs. There will be updates about the value of the benefits.
Additionally, there are 16 primary categories of transformational, business practice changes required by the settlement that will hold these insurers accountable to timely communication and payment; transparent communication, decision-making and third-party dealings; and real-time claims status updates. Learn more about each of the 16 program requirements below.
The settlement also addresses the problems created by the Blues’ exclusive Service Areas by giving Providers more contracting opportunities with Blues based outside the Service Areas in which the Providers are located.
How will Providers know whether their organization will benefit from or be impacted by this settlement, specifically?
The Settlement Class includes all Providers in the U.S. (other than Excluded Providers, who are not part of the Settlement Class) who currently provide or provided healthcare services, equipment or supplies to any patient who was insured by, or was a Member of or a beneficiary of, any plan administered by any Settling Individual Blue Plan during from July 24, 2008 to October 4, 2024 (“Settlement Class Period”).
- “Provider” means any person or entity that provides healthcare services in the U.S., including but not limited to a professional, group practice, or facility.
- “Excluded Providers” are (i) Providers owned or employed by any of the Settling Defendants; (ii) Providers owned or employed exclusively by Government Entities or Providers that exclusively provided services, equipment or supplies to members of or participants in Medicare, Medicaid or the Federal Employee Health Benefits Programs; (iii) Providers that have otherwise fully released their Released Claims against the Releasees prior to the Execution Date, including but not limited to Providers that were members of any of the settlement classes in Love v. Blue Cross and Blue Shield Association, No. 1:03-cv-21296-FAM (S.D. Fla.); or (iv) Providers that exclusively provide or provided (a) prescription drugs; (b) durable medical equipment; (c) medical devices; (d) supplies or services provided in an independent clinical laboratory; or (e) services, equipment or supplies covered by standalone dental or vision insurance. Any Provider that falls within the exclusion(s) set forth in clauses (i), (ii) or (iv) of this paragraph for only a portion of the Settlement Class Period is a Settlement Class Member that may recover in the Settlement.
A Provider who was a member of the settlement classes of physicians in Love v. Blue Cross and Blue Shield Association, No. 1:03-cv-21296-FAM (S.D. Fla.), almost every physician who was licensed to practice prior to March 12, 2008 will be considered an Excluded Provider because their claims were already released in that lawsuit.
Dental or vision providers who exclusively provided services, equipment or supplies covered by standalone dental or vision insurance are not Settlement Class Members because they were never part of the litigation class.
Providers are encouraged to sign up via our form to receive news and updates from Whatley Kallas regarding the Settlement, or check back for on-going updates.
How can Settlement Class Members receive money from the Settlement?
The Court has granted preliminary approval of the proposed settlement, and Class Members will receive notice of the terms of the Settlement with information about filing claims to recover money from the damages fund in the Settlement.
When will the changes to the BlueCard program start to take place?
Yes. All Settlement Class Members including individual professional providers who submitted claims for services to commercial Blue Plan members during the class period will be eligible to file claims for payment. More information concerning how medical professionals as well as groups and facilities can file claims under the Settlement is contained in the settlement notice and claim forms. Providers are encouraged to sign up via our form to receive news and updates from Whatley Kallas regarding the Settlement, or check back at this website for on-going updates.
Beyond the $2.8 Billion monetary payment, what is the value of the settlement?
The value of the BlueCard Program transformation and other injunctive relief is estimated to exceed the $2.8 Billion monetary fund plus the hundreds of millions of dollars that the injunctive relief will cost. The BlueCard Program transformation and system improvements will notably lessen administrative burden and inefficiencies providers across the U.S. must manage and mitigate today. For example, many systems must devote an immense amount of time and resources to manage BlueCard claims and work around the barriers and delays the current BCBS processes create – to the extent that some healthcare systems and hospitals have FTEs dedicated to this work. The positive impact for providers who remain in the Settlement Class is great. More information about the value of the injunctive relief will be forthcoming.
Will Class Members who opt out of the settlement be eligible for the changes to the BlueCard Program and other injunctive relief?
No. The Court’s order preliminarily approving the settlement states, “Those who opt out will, by the terms of the Settlement, opt out of all the benefits of the settlement – i.e., both the monetary and the injunctive relief.” It’s important to know that providers who opt out of the settlement will not be eligible to receive the BlueCard Program improvements or other injunctive relief. Only providers who remain in the Settlement Class will benefit from the transformational program improvements.
Specifically, providers who remain in the settlement will benefit from 16 primary categories of transformational, business practice changes required by the settlement that will hold the Blues accountable to timely communication and payment; transparent communication, decision-making and third-party dealings; and real-time claims tracking.
- BlueCard Transformation. Transformation of the BlueCard Program through the development and implementation of a system-wide, cloud-based architecture that will increase access to critical information and allow Settlement Class Members to receive up-to-date, accurate information as if they were a contracted provider of the Control/Home Plan, directly from their Local/Host Plan. This creation of a system-wide information platform and enhanced information sharing will facilitate Settlement Class Members’ access to Member benefits and eligibility verification, pre-authorization requirements, and claims status tracking;
- BlueCard Prompt Pay Commitment. To address the gap in application of state prompt pay laws to BlueCard claims, a timeliness commitment for payment of fully insured Clean BlueCard Claims, with a requirement that the Settling Individual Blue Plans pay interest when payment is made later than the Prompt Pay Period, as well as timely notice of defective claims and explanation for denied claims;
- Service Level Agreements. Implementation of Service Level Agreements, which commit the Settling Individual Blue Plans to respond promptly to BlueCard inquiries or pay financial penalties;
- BlueCard Executive. Appointment of a BlueCard Executive at each Settling Individual Blue Plan, who will be accountable to Settlement Class Members for BlueCard claims payment issues;
- Real-Time Messaging System. Implementation of a real-time Blues internal messaging system to reduce the time it takes for the Settling Individual Blue Plans to respond to Providers’ issues and disputes and enable Settling Individual Blue Plans to address Settlement Class Members’ issues in near-real time;
- National Executive Resolution Group. Creation of a National Executive Resolution Group, which will work with BCBSA to identify trends and opportunities for further improvement of BlueCard over time.
- Modifying the Contiguous Area Rule. Currently, Providers can contract with a Blue Plan in a Contiguous Area only for Members who live or work in the Service Area where the Provider is located. The Settlement Agreement removes that requirement, so that a Provider can contract for all state Members of that Settling Individual Blue Plan.
- Expanding Contiguous Area Contracts to Affiliated Hospitals. For the first time, the Settlement Agreement permits Settling Individual Blue Plans to enter into Contiguous Area Contracts that cover not just hospitals in Contiguous Counties, but also certain of their affiliated hospitals and professionals that work at those hospitals.
- Affiliates and All Products Clauses. The Settlement Agreement places limits on contract provisions that require Providers who contract with Settling Individual Blue Plans to participate in the networks of those plans’ non-Blue affiliates. This relief is becoming increasingly important as Blue companies expand their non-Blue business, in that it will prevent the Blue companies from leveraging their Blue business to benefit non-Blue business.
- Third-Party Information. Blue Plans will identify third parties involved in determining eligibility for benefits, so Settlement Class Members can better understand and predict eligibility decisions.
- Minimum Data Requirements. BCBS will define minimum data requirements for certain eligibility and benefits inquiries, to promote consistency among Settling Individual Blue Plans and give certainty to Providers who remain in Settlement Class that they are submitting the necessary information.
- Blue Plan Common Appeals Form. Providers in the Settlement Class can use a newly developed appeals form common to all Settling Individual Blue Plans, so they do not bear the administrative expense of complying with different requirements for initiating an appeal for every Settling Individual Blue Plan. Settlement Class Members may also continue to use existing forms; both will be accepted.
- Pre-Authorization Standards. BCBS will promulgate guidelines to improve the prior authorization process.
- Telehealth Relief. BCBS will streamline claims processing for Providers who contract with Blue Plans for telehealth services.
- Minimum Level of Value-Based Care. BCBS will ensure each Plan has a value-based care offering, so Providers nationwide can choose between a traditional fee-for-service model and a value-based care model for payment.
- Best Practices for Value-Based Care. BCBS will promulgate standards for value-based contracts in order to facilitate the delivery of value-based care.
As a Provider, is there any action my organization needs to take in order to benefit from the Settlement?
Yes. In order for a Provider to receive a cash payment from the settlement fund, the Provider must file a claim by July 29, 2025. Additional information on filing claims is contained in the settlement notice and claim forms. If a Provider does not file a claim but does not opt out of the settlement, the Provider will still be entitled to benefit from the business practice changes required by the settlement.
I am considering opting out of the settlement. What critical considerations should be made before opting out?
It’s important to understand that Providers pursuing independent cases outside of the Class Settlement will face years of burdensome litigation with very little possibility of obtaining any meaningful injunctive relief and enormous risk of not recovering any significant amount of money after paying legal fees and expenses. The Court’s order preliminarily approving the settlement states, “Provider Plaintiffs spent tens of millions of dollars on experts to collect, clean up, synthesize, and analyze data just to calculate the damages suffered by Alabama hospitals. … If an individual hospital system were to file an individual action against the Blues, they would need to repeat this process for every geographic market in which they allegedly sustained damages. The cost of litigating these cases is exorbitant. It would be enormous for a large health care provider and, for smaller healthcare providers, the cost would simply be prohibitive.” The Court also noted the risks associated with litigation: “There also exist risks that experts would be excluded and classes not certified. This process would have to be repeated in each relevant market. If the parties continue to litigate these cases, they would need to devote additional significant time and enormous resources to preparing various complex damages models.” Additionally, the Court stated, “if the individual providers were to bring their own actions, the court suspects that the Blues would litigate each one to its conclusion rather than enter into piecemeal settlements.”
By contrast, a Provider that remains in the settlement benefits from the substantial injunctive relief and can recover significant money by filing a simple, efficient form and not being subject to the burden, delay and expense of further litigation.
Whatley Kallas’ extensive experience litigating the case, as well as its access to the claims data and other evidence that has led to this successful outcome, uniquely positions the firm as a continued advocate for providers that is irreplicable by any other law firm. The Court’s preliminary approval order states, “The court has become exceedingly familiar with the lawyers representing the class over the last twelve years and is fully satisfied that the named Plaintiffs and the lawyers representing them have properly and adequately prosecuted this case and well represented the class.”
Over the past 12 years, the Providers’ lawyers, led by Whatley Kallas, have spent approximately $100 million, most of which was used to develop the largest collection of healthcare claims data in any case in history and for leading healthcare antitrust economists to evaluate that data and develop econometric models for the case.
Lawyers at Whatley Kallas and their co-counsel have engaged in countless discovery hearings that led to 91 discovery orders, obtained and reviewed tens of millions of pages of documents dating back to the 1920s, synthesized and analyzed the terabytes of health insurance claims data referred to above, served expert reports based on that data, participated in more than 200 depositions, produced discovery to the Blues, filed and opposed several motions for summary judgment, and moved for class certification.
Providers with potential interest in opting out should consider the fact that providers who opt out will not be eligible to receive injunctive relief and this type of relief will be unlikely to be achieved outside of a class action. Providers should also consider other significant risks such as potential counterclaims, the necessary investments of time, money and resources that would be required to pursue their claims against the Blues independently, as well as uncertainty of reaching a more favorable outcome than the one provided by the settlement at some undetermined distant future time.
My organization or my client’s organization is currently in litigation with Blue Cross Blue Shield or may pursue other, unrelated litigation in the future. Will participating in this Settlement impact my rights to pursue other legal action against Blue Cross Blue Shield? What rights do I retain?
The settlement broadly releases all claims that Providers have relating to the issues related to the litigation and the relief provided by the settlement. The settlement does not release Providers’ unrelated claims that arise from different facts in the ordinary course of business and are based solely on (a) claims by the Provider in the Provider’s capacity as a plan sponsor or subscriber or (b) claims regarding whether a Settling Individual Blue Plan properly paid or denied a specific claim for a particular product, service or benefit based on the benefit plan document, Provider contract, or state or federal statutory or regulatory regimes (including state prompt pay laws).
When will the changes to the BlueCard Program start to take place and when will they be fully implemented?
The settlement sets forth an implentation timeline for BlueCard changes and all other injunctive relief, which will commence when the settlement is finally approved by the Court and any appeals are resolved. Providers are encouraged to sign up via our form to receive news and updates from Whatley Kallas regarding the Settlement, or check back for on-going updates.
How will Blue Cross Blue Shield be held accountable to ensure these changes are made?
The settlement establishes a comprehensive Compliance, Reporting and Monitoring process, which includes the establishment of a Court-appointed Monitoring Committee that will be in effect for five years following the effective date of the settlement (i.e., the date the settlement becomes final, following the Court’s final approval and resolution of all appeals). Providers are encouraged to sign up via our form to receive news and updates from Whatley Kallas regarding the Settlement, or check back for on-going updates.
What else can providers expect in terms of next steps?
On December 4, 2024, the Court granted preliminary approval of the settlement. Class members will receive formal notice of the settlement and further information within about 30 days. The Court set a deadline of March 4, 2025 for class members to determine whether to opt out of or object to the settlement. In the meantime, our lawyers are committed to providing timely updates and distilling important information for all impacted Providers throughout the approval process. We’re here to offer educational resources and help ensure you’re informed. Sign up via our form to receive news and updates from Whatley Kallas regarding the Settlement, or check back here for on-going updates.
How can I learn more? Who can I contact for questions?
Contact Whatley Kallas by filling out this form.
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