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Voicing opposition to a merger

During a merger investigation, the complaints of the third parties, including consumers, are incredibly important to the reviewing agencies. As noted in past blogs, the key inquiry for the enforcement agencies and state regulators is does the merger substantially lessen competition? To simplify that question, does the merger make the market worse—i.e. will prices be higher, will there be less choice, and will quality/innovation deteriorate.

In the case of Anthem/Cigna and Aetna/Humana, the merging parties are presenting copious amounts of information to the reviewing agencies (the Department of Justice Antitrust Division, the states’ attorneys generals, and state insurance commissioners). And while this information along with that offered by market competitors is of critical importance, there is a need for consumer and third party advocacy to present information at both a national and state-by-state basis. Consumer and third party complaints often drive merger investigations and can offer unique insights from those on the ground. In voicing opposition and issuing a complaint, here are some basic guidelines:

#1: What is the harm?

As previously noted, insurance mergers present a number of known harms to consumers including higher premiums, lower quality, less competition, and less access to providers. Articulating these harms to the reviewing agencies is critical. However, it is also important to mention other potential conduct by the parties including refusal of claims, out-of-pocket expenses, or denying access to a provider. Any harms associated with any of the four insurers should be stated in the complaint.

#2: Where are you from?

All reviewing agencies will want to know where a consumer or third party advocate resides. The impact of the mergers varies from state-to-state and from market-to-market. By describing the conditions in your market, including number of competitors, premium rates, and access to physicians and hospitals, the reviewing agencies will have a better perspective of your complaint.

#3: What do you want?

It is also important to conclude with what you want the reviewing agencies to do. In this case, the end game should be a request for the agency to prevent the merger. However, consumers can also ask the reviewing agencies for other remedies. In the coming weeks, we will be providing a list of potential remedies that parties could ask for within their states.

#4: Can we meet with you?

Lastly, a comment to a reviewing agency should always ask to meet with the reviewing agency to discuss the mergers in person. Cultivating a relationship with an agency can be incredibly beneficial, as the party will learn about the concerns the agency has and what information they need to further their investigation.

An effective complaint to a reviewing agency will address each of these topics. The CPPC is pleased to provide information on consumer and third-party complaints as well as a list of contacts for all of the reviewing agencies in all U.S. States and Territories. If you have any questions about your complaint, please do not hesitate to email us directly.

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