Ctnewsjunkie file photo
Insurance Commissioner Katharine Wade being nominated by Gov. Dannel P. Maloy (Ctnewsjunkie file photo)

HARTFORD, CT — A draft decision by the Freedom of Information Commission seeks to fine Connecticut’s Insurance Commissioner Katharine Wade $1,000 for withholding information regarding the now failed Aetna-Humana merger.

Last year, Connecticut Campaign for Consumer Choice, a group formed by the Connecticut State Medical Society, the Connecticut Citizen Action Group, and the Universal Health Care Foundation Of Connecticut, sought information regarding the merger, but backed off a request specifically for the “Form E” filing, which the insurance companies have to submit to insurance regulators.

The Insurance Department initially turned over 33 pages of information. Most of the records consisted of emails from media organizations requesting information concerning the merger, letters and a petition from consumers and a consumer group, and a few internal emails concerning the merger and the federal lawsuit. The groups filed a complaint with the Freedom of Information Commission when they didn’t receive what they felt they should have received.

A hearing was held this year in April and by May the Insurance Department admitted they didn’t turn over some documents that the Freedom of Information Commission hearing officer had requested for an “in camera” review.

The argument by the Insurance Department was that since Form E filings are exempt from subpoena, the statute also prohibits Form E filings from being subject to an in camera order.

The draft decision concluded that the Insurance Department simply failed to prove that the statute prohibits them from complying with the request to inspect the records.

“It is found that the respondents’ reasons for withholding disclosure of such records are without basis and frivolous,” Freedom of Information Commission Hearing Officer Lisa Fein Siegel wrote in the draft decision.

Siegel concluded that “Commissioner Wade, acting in part through her deputy commissioners, is the official directly responsible for denying the complainant its right of prompt access to non-exempt public records.” The draft decision recommends that Wade be fined $1,000.

The full commission will vote on the decision at 2 p.m. June 28.

Donna Tommelleo, a spokeswoman for the insurance department, said: “The Department takes its obligations under FOIA seriously and acts with advice of counsel when FOIA requests are received. The hearing officer’s proposal will go to the full FOI Commission for its consideration. If [the insurance department] believes the Commission’s ruling fails to recognize the Department’s efforts to comply with the FOIA, we will evaluate the Department’s legal options at that time.”

The Connecticut Insurance Department never held a public hearing on the proposed merger between Aetna and Humana because its role was more diminished than it was when it came to the proposed Anthem-Cigna merger. Humana’s market in Connecticut was relatively small so the impact the merger would have on the state didn’t cause much concern. Attorney General George Jepsen did not join the U.S. Department of Justice’s opposition to that merger, but he did join in criticizing the Anthem-Cigna merger.

Wade gave approval for the Aetna-Humana merger in January 2015.

In requesting the documents the Connecticut Campaign for Consumer Choice was trying to understand why Wade gave the insurance companies her approval.

Matthew Katz, executive vice president and CEO of the Connecticut State Medical Society, said transparency is important when it comes to how state agencies and officials are evaluating mega mergers between insurance companies.

Getting at why Wade and the Insurance Department agreed to the merger and felt it was in the public good when the U.S. Department of Justice found it to be deficient is why it’s been so important to pursue an answer, Katz said.

“Our Insurance Department in the darkness of night and the dead of winter approved this without telling anyone they did so until later that summer,” Katz said.

Tommelleo objected to Katz’s characterization of the process. She said there’s a ‘huge regulatory distinction” between how department was expected to handle the Anthem-Cigna merger and the Aetna-Humana merger.

“It’s a completely different process,” Tommelleo said. “Unfortunately, this process has been misunderstood and mischaracterized for months.”

Katz said he’s thankful for the Connecticut Freedom of Information Act.

“It is the process that has been shielded and under a veil of secrecy and how the decision was reached, not how it differs from some other CID process,” Katz said. “The lack of transparency continues to bewilder and the CID’s failure to recognize its lack of adherence to FOIA raises serious questions and concerns.”