It appears the Affordable Care Act could play a prominent role in the upcoming antitrust trial set to start December 5 over the pending merger between Aetna and Humana, the Hartford Courant reported.
Leading up to the trial, Aetna had been accused of scaling back participation in ACA exchanges as an act of revenge against the federal government for filing the antitrust lawsuit.
- Aetna responded to those allegations by targeting the ACA in a strongly-worded attack in documents filed with the court. "The government's effort to create a sideshow about Aetna's intent does not change the fact that Aetna's exit from the challenged counties forecloses the possibility of any anticompetitive effects in those counties," Aetna was quoted in the Hartford Courant.
As the start date nears for the trial over the Aetna-Humana merger, representation for Aetna targeted the ACA in a strongly worded attack on their viability. "It is beyond dispute that ACA exchanges are threatening to collapse under their own weight," Aetna said, according to the Hartford Courant. "The government appears intent on punishing Aetna for refusing to continue in a deeply flawed program."
The Department of Justice (DOJ) had initially filed suit over concerns that the $37 billion purchase of Humana would give Aetna too much control in the Medicare Advantage market. However, Aetna raised eyebrows when it announced it would not participate in ACA exchanges in 17 counties where Humana sells plans. Federal prosecutors responded in a pretrial memo that “a firm should not be able to avoid judicial review by withdrawing from a market in an effort to undermine the government’s case.”
It is possible that U.S. District Judge John D. Bates, who is presiding over the case, could throw at the ACA part of the DOJ’s case against Aetna, according to the Hartford Courant. However, he could still rule that the merger gives Aetna an unfair advantage in Medicare Advantage markets and violates antitrust law.