Missouri was the first state to take regulatory action against the merger of insurance giants Aetna and Humana, but consumer advocates are petitioning the state’s top insurance regulator to go even further.

A handful of advocacy groups, both national and local, are calling on John Huff, the director of the Missouri Department of Insurance, to conduct the final step of the review process out in the open.

“We believe that a continued commitment to a fully public process, with the opportunity for meaningful public comment, would be very helpful for determining whether or not any proposed remedies will fully restore competition and are therefore in the public interest,” according to a letter that the groups said they plan to send Tuesday to the state’s insurance department.

The groups that signed the letter are the American Federation of State, County and Municipal Employees, Consumer Action, Consumers Council of Missouri, Consumers Union, Consumer Watchdog, Empower Missouri, Families USA, Missouri Budget Project, Missouri Health Advocacy Alliance, Missouri Health Care For All, and U.S. PIRG.

On May 24, the state’s insurance department posted a 43-page order directing Aetna and Humana to stop selling comprehensive individual, comprehensive small group and certain Medicare Advantage plans if they move forward with the previously announced $37 billion merger.

But the order was not the final step in the process.

The May 24 order gave the two companies 30 days to submit a plan to “remedy the anticompetitive impact of the acquisition.” That means the restrictions could be removed if the insurers came up with a plan that preserved competition.

David Balto, a former attorney within the antitrust division of U.S. Department of Justice, is spearheading the call for transparency in this final step of the review process in Missouri.

“Much is at stake for the hundreds of thousands of affected consumers in Missouri,” the letter states.

In its order, the Missouri Department of Insurance pointed out how competition would be negatively affected if the deal goes through. For instance, state regulators found that the combined company’s market share in individual Medicare Advantage plans would exceed 70 percent in 33 counties. Medicare Advantage plans allow seniors to enroll in health plans managed by private health insurance companies instead of having care covered by Medicare’s traditional fee-for-service program.

The letter calls the remedy process “crucial” and asks the department to continue its commitment to transparency. The letter describes Missouri’s decision on the Aetna-Humana deal as the “most transparent” of any state insurance department.

In the letter, the groups want the department to:

• Publish a notice fully disclosing any remedies being considered along with an explanation of the rationale for and the expected effect of each.
• Provide a time period for the public to file comments with the department.
• Review any comments filed with the department.
• Set a date for a hearing in which the public can present their views on whether the proposed remedies are in the public interest.

Aetna declined to comment on the proposal to open up the state’s review process to the public. The insurer referred questions to the Missouri Department of Revenue.

The Post-Dispatch sent the Missouri Department of Insurance the letter’s key points and requested comment. The department didn’t address the groups’ request for public hearings and comments; the regulatory body said only that it would follow Missouri law.

Jen Bersdale, executive director of Missouri Health Care for All, said in a Monday interview that the pending deal could drive up prices for many Missourians. And, any remedy the department agrees will affect many Missourians, and that’s why they should be included in the final process.

Sometimes these so-called remedies can include selling off, or divesting, certain parts of the business to other companies to ensure competition remains. But divestiture, especially among health insurance plans, hasn’t always been successful, Balto said in an interview.

The letter cites a few earlier acquisition deals in which divesting “failed to protect consumers,” including Humana-Arcadian, UnitedHealth-Sierra Health, and Aetna-Prudential.

The letter also questions whether there is any practical way to remedy the Aetna-Humana merger.

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Samantha Liss is a reporter for the St. Louis Post-Dispatch.