The Blue Cross Blue Shield (BCBS) antitrust settlement, brought by Whatley Kallas LLP, has presented healthcare providers with an unprecedented opportunity: $2.8 billion in monetary compensation, along with transformative systemic improvements to the BlueCard program that will streamline claims processing, ensure prompt payments, and enhance overall transparency. However, some folks are using false narratives to induce providers to opt out of this remarkable settlement and pursue their own claims.

Clearly, those folks are not paying heed to the explicit and prescient words of the US District Court Judge R. David Proctor, who made a number of points in his order preliminarily approving this incredible settlement. Let’s chew on a few of the Judge Proctor’s statements.

Myth #1: Providers that opt out of the settlement will have a quick and simple path to victory.

Judge Proctor’s statement: “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. The prospect of resolving this case on a class wide basis has produced the strongest Settlement, and achieved results that would not have been possible in individual litigation.”

My perspective: This settlement was successful, in large part, because of the extensive investment of over $100 million and 12+ years of dedicated effort by an exhaustive team of experts – ranging from lawyers to world-class economists. Providers that opt out can expect to be dragged through years of litigation that will involve full discovery, including depositions and detailed claims data and documentation for all payers dating back years in multiple venues. These providers will likely face higher legal costs and significant uncertainty, while giving up the guaranteed transformative benefits to the BlueCard Program offered by the settlement.  Walking into massive, unnecessary litigation is never a good idea.

Myth #2: Opting out of the settlement to pursue an independent case will likely result in a more financially beneficial outcome.

Judge Proctor’s statement: “There are thousands of hospitals and other facilities, and hundreds of thousands of healthcare professionals in the Settlement Class. 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. (Doc. # 3192-3 at 10). 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.”

My perspective: Providers opting out will not have access to the $2.8 billion dollar pot. There is no opt out claims process here, only full-blown litigation. This means that providers who are talked into going it alone will have to recreate years’ worth of BlueCard records. claim by claim, jurisdiction by jurisdiction. In my experience, most providers have not routinely maintained precise and detailed records that separate out BlueCard claims and the reasons for each denial, underpayment or non-payment. This is why the massive database built by experts was critical to the settlement.

And, of course, in addition to the $2.8 billion in monetary compensation, BCBS will invest hundreds of millions of dollars in system improvements that will address many of the prevalent issues providers face today. These types of systemic changes won’t be available in piecemeal litigation.

Myth #3: Providers that opt out of the settlement will still benefit from the systemic BlueCard Program improvements.

Judge Proctor’s statement: “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.”

My perspective: How much clearer could the Court be? Only providers who remain in the settlement will benefit from the transformative BlueCard Program improvements. These critical changes include streamlined claims processing, more timely communication and payment, transparent decision making and dealings with third parties, and increased accountability. Providers who opt will not be entitled to any of this. The injunctive relief and improvements should significantly fix future dealings with BlueCard. Who would give that up?

Conclusion: The risks of opting out

The risks of opting out of the BCBS antitrust settlement far outweigh any potential benefits. Providers who choose to pursue independent litigation will face extraordinary burdens—including gathering vast amounts of historical data, producing documents, locating witnesses, and dealing with the Blues’ legal defenses. Opting out could result in years of costly litigation and missed opportunities, while staying in the settlement offers a far more advantageous and timely resolution.