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FOIC Still Fighting For Disclosure On Insurance Acquisitions

December 3, 2018

HARTFORD — It’s been more than a year fraught with legal delay tactics by the Insurance Department, but the Freedom of Information Commission is still trying to force the disclosure of documents connected to a pair of separate, multi-billion dollar acquisitions that didn’t go through.

Aetna was attempting to buy Humana, and Anthem wanted to purchase Cigna.

Insurance Commissioner Katharine Wade appealed the decision in August 2017 to Superior Court.

The Freedom of Information Commission, which ordered the disclosure of the documents related to the two blocked mergers, expressed its frustration with her teams legal tactics and continued delays in court documents last week.

FOIC Attorney Victor Perpetua said Wade and the Insurance Department have yet to provide any reason the documents related to these proposed mergers should not be made public or at the very least available for an “in camera” inspection by the commission.

“The plaintiffs cannot simply assert that they have placed particular records in a regulatory file, and that by virtue of now being located in that file, the records are categorically exempt from disclosure,” Perpetua wrote. “It is a defiance of a long-established and well-accepted in camera inspection process

— one that is virtually demanded by our Supreme Court — to refuse to produce records for a confidential inspection based purely on a strained construction of exemption statutes, a construction never formally articulated and never judicially scrutinized.”

The documents that a Republican Senator and the Connecticut Campaign for Consumer Choice were trying to obtain were part of an effort to understand why Wade gave the insurance companies her approval.

However, Wade and the Insurance Department argued that she must refuse to confirm or deny even the very fact a confidential insurance filing has occurred. And no matter what is in those records, the FOIC should not be able to inspect the records “in camera” before making a decision regarding an exemption.

The Insurance Department declined comment Friday on the pending litigation.

Perpetua argues that the FOIC has primary jurisdiction to decide the issue.

“But the plaintiffs seek to substitute themselves for the FOI Commission as both factfinder and as the agency responsible to apply the law to those facts,” he wrote. ”And they ask this Court to do the same thing — to make a judgment about what evidence need be produced and what the applicable statutes mean, all without the Commission having an opportunity to apply its construction of the statutes to actual records.”

Its last brief filed in September says that it believes its claimed exemptions to the Freedom of Information Act should be determined by a court.

“Having never reviewed the documents it has ordered released, FOIC’s decision is not grounded in substantial evidence,” Assistant Attorney General John Langmaid wrote in his brief on behalf of Wade. “FOIC has no evidence that release of the documents, as it has ordered, would not result in the disclosure of information the law of this state requires or permits its Insurance Commissioner to keep confidential.”

Perpetua argues that Wade could hand over the information for an “in camera” inspection, which the commissioner has refused to do.

Tom Swan, head of the Connecticut Citizens Action Group and a member of the Connecticut Campaign for Consumer Choice, said the filings might have helped inform the recent CVS acquisition of Aetna.

“Commissioner Wade’s continued unethical behavior stonewalling the public’s right to know around the failed Aetna and Humana deal casts a shadow over the subsequent CVS purchase of Aetna,” Swan said.

In court documents, Langmaid argued that Humana didn’t have “any significant market presence in any lines of insurance in Connecticut.” He said that means there should be “nothing nefarious or surprising” in the Insurance Department’s decision that it wouldn’t impact the insurance market in Connecticut.

The CVS and Aetna merger, which combines CVS pharmacies and Minute Clinics with Aetna’s insurance business, was approved last week by regulators.

The process included a three-hour public hearing in October before the determination was made by the Insurance Department to greenlight the merger.

CVS was able to persuade regulators in Connecticut and 27 other states to sign off on the deal after agreeing to a number of conditions like not hiking insurance premiums for the first few years. Aetna also agreed to sell its Medicare Part D business to WellCare Health Plans to ease concerns about market dominance.

“By fully integrating Aetna’s medical information and analytics with CVS Health’s pharmacy data, we can develop new ways to engage consumers in their total health and wellness through personal contacts and deeper collaboration with their primary care physicians,” CVS Health President and Chief Executive Officer Larry J. Merlo said last week in a statement. “As a result, we expect patients will benefit from earlier interventions and better-connected care, leading to improved health outcomes and lower medical costs.”

In October, CVS agreed to keep Aetna’s headquarters in Hartford for the next 10 years and will maintain its current staffing level of 5,291 employees in Connecticut for at least the next four years.

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