The Affordable Care Act (ACA), also known as Obamacare, has been an extremely contentious bit of legislation. The future of the act is currently extremely uncertain, President Trump signed an executive order his first day in office which–while vague enough to be nearly symbolic in nature–still serve to limit the law to some extent. However, the law has also been at the heart of a recent court decision which put a stop to a $37B dollar merger between two health insurance behemoths.
The decision comes as part of the ongoing anti-trust case over the merger between Aetna and Humana–two of the five biggest health insurance companies in the nation. The announcement of the merger agreement of these two companies in 2015 led to an immediate investigation, and ultimately led to the Department of Justice, eight different states, and the District of Columbia all filing lawsuits saying the merger was anti-competitive.
Aetna obviously disagreed and between the government and them they managed to produce millions of pages of arguments and evidence for each side as to the exact economic impact of the merger. Aetna’s dedication to the issue is no surprise, beyond the desire to see the merger go through they had some serious skin in the game–a $1B dollar fee to be paid to Humana if the merger fell through.
What Did Aetna Claim about the Affordable Care Act (a.k.a. Obamacare)?
One of the most contentious arguments revolved around the ACA itself. The Affordable Care Act created a public forum through which the public could purchase insurance plans, although it did allow insurance companies to offer alternative plans outside of this public market. It also requires insurers interested in providing plans through this market to comply with certain obligations. Just before the lawsuit began, Aetna withdrew from all but four of the states it offered insurance policies through the ACA.
Aetna said that they withdrew because the plans they offered under the ACA were not making them money. The government argued that they did it as part of strong arm tactic. They said that Aetna, knowing the impact it would on public perception of the ACA, threatened to leave the program if the merger wasn’t approved
There was a fair bit of evidence that many of the ACA programs were, in fact, making Aetna quite a bit of money. However, the government struggled to produce evidence showing Aetna’s actual motivations in leaving the ACA programs. That is, they were having trouble, until they produced an email from Aetna’s Chief Executive to the Department of Justice itself specifically stating that their participation in the ACA hinged on them being allowed to merge with Humana. From there, they went on to produce conversations with Aetna officers where they heavily suggested, and one time outright stated, that if they weren’t happy with the merger results the government wouldn’t be happy with their involvement in the ACA. They even found emails where, after a series of emails explaining that the withdrawal was to strengthen their position in their upcoming anti-trust lawsuit, Aetna executives actively mentioned they were trying to avoid leaving a paper trail indicating the reason they withdrew from the ACA and making efforts to shield any such evidence from being produced in a lawsuit.
A few weeks ago, in a 156 page monster of a ruling, the court finally agreed with the government and part of that ruling was based on the fact that Aetna had misled the public–and attempted to mislead the court–as to the motivations behind leaving the ACA program. So in order to understand how, let’s first discuss exactly how anti-trust law works before looking at how Aetna’s deception as to the ACA effected their case.
How Do Anti-Trust Lawsuits Work?
Anti-trust law is basically the government trying to keep companies from becoming such an enormous market presence that they prevent other businesses from competing with them. If you’ve ever played Monopoly you get the idea.
The government pays particular attention to health insurance companies in anti-trust cases because of how Medicare operates and specifically how the government pays insurance companies to provide insurance supplements to cover gaps for seniors on Medicare. Where health insurance companies have huge enough market presence, it leaves seniors paying fees that make these gap-filler plans inaccessible.
In order to establish that a merger would violate anti-trust law, the government has to show that such a merger would “substantially lessen competition, or tend to create a monopoly.” They don’t need to show that it will absolutely happen, but just that there is a probability that a merger would be anti-competitive. Establishing this, as you could probably tell from the millions of pages of evidence and a 156-page ruling, is generally an incredibly complicated and in-depth process. Where the government can show such a probability, there is a presumption that a merger is illegal. However, a defendant in an anti-trust case, such as Aetna, can produce evidence to rebut such a presumption.
There was obviously an enormous amount of evidence here as to the economic impact of the merger, evidence supporting both sides. However, the question ultimately came down to how much of the market Aetna would end up controlling–and that’s where their game-playing around their motivations behind leaving the ACA came into play.
The Repercussions of Aetna’s Lie
Aetna’s whoppers about the ACA weren’t the only or the deciding factor in the court’s ruling. However, they were influential enough to one of the few elements they specifically mentioned in the summary of their ruling out of the over a hundred pages of evidence that ruling discusses.
So what did Aetna’s dishonesty actually mean for their case? The government argued that because Aetna misled the public, the court had to ignore the fact that Aetna had in fact left the markets for those states and only consider Aetna’s market presence as it was before they withdrew. The court didn’t buy this, however they still took Aetna’s deception into account. They looked to the future to consider whether Aetna may expand into those markets in the future. Given that Aetna was making money in those and only withdrew as part of a strong arm tactic, they felt it very likely they’d return to the markets they left after the merger completed. They felt this true in Florida, where the ACA markets were actually found to be the only profitable part of Aetna’s business–a situation which led to confused emails from Aetna officials out of Florida–these emails received a hasty response to only discuss the matter over the phone.
With all this in mind, the court felt it was likely that Aetna would simply return to the markets it had abandoned post-merger. As discussed above, likely is all a court needs in an anti-trust case. Thus, in a very real way, Aetna’s approach to the ACA had a huge hand in killing their chances of a successful merger.
What Does This Mean on a Broader Level?
First and foremost, the most obvious lesson here is that judges don’t particular care for hiding evidence. So much so that it took what could have been a fairly small issue and turned into an entire section of the court’s ruling. However, the reality of the situation also impacts some of the arguments surrounding the ACA.
Just weeks ago, Aetna’s withdrawal was used as evidence to support the end of the act. However, when the reality is a more profitable one than Aetna led the country to believe, it certainly muddies the water on the issue. We’re almost certainly going to see a lot of changes to the ACA in coming months and years. However, it’s important that we look at the facts as they are when discussing the issue–and not spin on the topic such as Aetna’s misrepresentations.