Blue Cross Blue Shield (BCBS) Class Action Lawsuit: Settlement Update

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Published: 08.12.2022 / Updated: 01.22.2024

On October 25, 2023, the Eleventh Circuit Court of Appeals affirmed approval of the settlement agreement. The deadline for exhaustion of any additional appeals falls in the first quarter of 2024. Please check BCBS's settlement website in February 2024 for additional updates.
 
As a reminder, employers that expect to receive settlement proceeds should be aware of the potential ERISA fiduciary duty related to the proceeds. Under ERISA, any portion of the settlement proceeds that are considered to be “plan assets” must be used for the exclusive benefit of participants in the plan (and their beneficiaries), or to finance the reasonable administrative expenses of the plan.
 
In absence of DOL guidance regarding the proper treatment of claim proceeds from this particular lawsuit, other DOL guidance can be referenced regarding treatment of proceeds. Specifically, the DOL has previously issued guidance related to the treatment of medical loss ratio (“MLR”) rebates received under the Affordable Care Act.  Unless specific guidance is issued related to the BCBSA settlement, employers may want to use the MLR guidance as a reference when determining how to calculate what portion of the BCBSA settlement proceeds should be considered “plan assets,” and how those funds can be used.

What is the BCBS Settlement?

Class Representatives (“Plaintiffs”) and the Blue Cross Blue Shield Association (“BCBSA”) and Settling Individual Blue Plans reached a Settlement in a class action antitrust lawsuit. BCBSA and Settling Individual Blue Plans are called “Settling Defendants.”
 
Plaintiffs allege that Settling Defendants violated antitrust laws by entering into an agreement not to compete and to limit competition among themselves in selling health insurance and administrative services for health insurance.
 
The Court has not decided who is right or wrong. Instead, Plaintiffs and Settling Defendants have agreed to a Settlement to avoid the risk and cost of further litigation. If approved by the Court, the Settlement will establish a $2.67 billion Settlement Fund. Settling Defendants will also agree to make changes in the way they do business that will increase the opportunities for competition in the market for health insurance. Payments will be made if the Court approves the Settlement and after any appeals are resolved.
 

Who is in the BCBS Settlement Classes?

The Court certified two Settlement Classes in this case ― a Damages Class and an Injunctive Relief Class.

 
The Damages Class includes:

• All Individuals, Insured Groups (and their employees), and  Self-Funded Accounts (and their employees), that purchased, were covered by, or were enrolled in a Blue Branded Commercial Health Benefit Product sold, underwritten, insured, administered, or issued by any Settling Individual Blue Plan during the respective class periods.
• The class period for the fully insured Individuals and Insured Groups (and their employees) is from February 7, 2008, through October 16, 2020.
• The class period for the Self-Funded Accounts (and their employees) is from September 1, 2015 through October 16, 2020.
• Dependents, beneficiaries (including minors), and non-employees are NOT included in the Damages Class.
• Self-Funded Accounts encompass any account, employer, health benefit plan, ERISA plan, non-ERISA plan, or group, including all sponsors, administrators, fiduciaries, and Members thereof, that purchased, were covered by, participated in, or were enrolled in a Self-Funded Health Benefit Plan during the Self-Funded Settlement Class Period.

A Self-Funded Health Benefit Plan is any Commercial Health Benefit Product other than Commercial Health Insurance, including administrative services only (“ASO”) contracts or accounts, administrative services contracts, or accounts (“ASC”), and jointly administered administrative services contracts or accounts. For associational entities (e.g., trade associations, unions, etc.), the Self-Funded Account includes any member entity which was covered by, enrolled in, or included in the associational entity’s Blue Branded Commercial Health Benefit Product. A Self-Funded Account that purchased a Blue-Branded Self-Funded Health Benefit Plan and Blue-Branded stop-loss coverage remains a Self-Funded Account.
 
Excluded from the Damages Class are:

• Government Accounts.
• Medicare and Medicaid Accounts.
• Settling Defendants themselves, and any parent or subsidiary of any Settling Defendant (and their covered or enrolled employees).
• Individuals or entities that file an exclusion or opt out from the Settlement.
• The judge presiding over this matter, and any members of his judicial staff, to the extent such staff were covered by a Commercial Health Benefit Product not purchased by a Government Account during the Settlement Class Period.

The Injunctive Relief Class includes:

• All Individuals, Insured Groups, Self-Funded Accounts, and Members that purchased, were covered by, or were enrolled in a Blue-Branded Commercial Health Benefit Product sold, underwritten, insured, administered, or issued by any Settling Individual Blue Plan during the applicable Settlement Class Period, and
• Dependents, beneficiaries (including minors), and non-employees are included in the Injunctive Relief Class.

Those who are still unsure if they are included in the Settlement Classes, please review the detailed information contained in the Settlement Agreement, available for download at www.BCBSsettlement.com. Otherwise, feel free to contact the Claims Administrator at info@BCBSsettlement.com or call toll-free at (888) 681-1142.
 

How much will individuals get from the BCBS settlement?

Damages Class Members who submit a valid approved claim (“Authorized Claimants”) will receive a payment from either the FI Net Settlement Fund or the Self-Funded Net Settlement Fund if the Settlement is approved. Distribution of the Authorized Claimants qualify for a payment based on the total amount of estimated premiums they paid to the Settling Defendants (“Total Premiums Paid”) during the Settlement Class Period.
 
Payments will be distributed on a proportional basis across all FI Authorized Claimants based on their estimated premiums.
 
When filing a claim, FI Groups and FI Employees may choose a Default or Alternative Option for determining the allocation of Total Premiums Paid between the employer and any employee of that FI group that file a claim. To efficiently process claims, the Plan of Distribution sets a Default allocation as follows: (1) 15% of an employee’s premium for single coverage is deemed to have been paid by the employee (with the remainder to the employer) and (2) 34% of an employee’s premium for family coverage is deemed to have been paid by the employee (with the remainder to the employer).
 
The Alternative option allows the claimant to submit data or records supporting a contribution higher than the Default. The below scenarios are examples of how an estimated premium may be calculated for use in determining a claimant’s proportional share of the FI Net Settlement Fund. In any case where an FI Group makes a claim, it will receive credit for any premiums not otherwise allocated to claiming employees.

How will the BCBS settlement money be distributed?

Distribution of the FI Net Settlement Fund

The payment amount (i.e. claim payment) to FI Authorized Claimants will be determined by the following formula: FI Individual Policyholders – Total Premiums Paid for FI Individual Policyholders will be based on data provided by Settling Defendants. In most cases that data should allow for the calculation of Total Premiums Paid without requiring the FI Authorized Claimant to submit any premium data.
 
FI Groups and FI Employees – Total Premiums Paid for FI Groups and FI Employees will be based on
(a) data provided by the Settling Defendants showing the total amount of premiums paid by any FI Group and
(b) a process for allocating the Total Premiums Paid between each specific FI Group and any FI Employees of that FI Group who submit a claim.
 

Distribution of Self-Funded Net Settlement Fund

Self-Funded Authorized Claimants are eligible for compensation for Total Self-Funded Fees Paid to the Settling Defendants during the Self-Funded Settlement Class Period. Payments will be distributed on a proportional basis across all Self-Funded Authorized Claimants. The amount of each claim submitted by any given Self-Funded Authorized Claimant will be determined by the following formula:  

How do I make a claim and receive payment?

You must file a claim form online or by mail postmarked November 5, 2021. Claims may be submitted online at BCBSsettlement.com or by mail to:
Blue Cross Blue Shield Settlement
c/o JND Legal Administration
PO Box 91390
Seattle, WA 98111
 
If you select the Alternative Option, you must submit relevant data or records showing a higher contribution percentage. Otherwise the Default Option will be used. Instructions for submitting your claim are on the claim form and on the Settlement Website. When required, sufficient documentation shall include an attestation signed under penalty of perjury when other documentation is no longer available.
 
If you do nothing, you will remain a member of the Settlement Classes and be bound by the Settlement. However, if you had been entitled to share in the Settlement proceeds, you will not get a payment.
  
Legal Rights and Options in the BCBS Settlement
Long Form Notice (bcbssettlement.com)
 
In re: Blue Cross Blue Shield Antitrust Litigation MDL 2406, N.D. Ala. Master File No. 2:13-cv-20000-RDP (the “Settlement”).