Aetna-Humana Rejected

This Tuesday, Aug. 19, 2014, file photo, shows signage in front of Aetna Inc.'s headquarters in Hartford, Conn. A federal judge has rejected health insurer Aetna's plan to buy rival Humana for about $34 billion and become a major player in the market for Medicare Advantage coverage. U.S. District Judge John Bates said in an opinion filed Monday, Jan. 23, 2017, that he largely agrees with federal regulators who contended that such a combination would hurt competition. (AP Photo/Jessica Hill, File)

(Jessica Hill)

Aetna announced last August that it would pull out of most of the state exchanges where it sold health insurance under the Affordable Care Act, citing financial losses. But a U.S. District judge who rejected the company's proposed merger with Humana on Monday revealed in his opinion that profitability wasn't the only concern driving the company's decision - Aetna also exited several markets as part of an effort to "improve its litigation position."

U.S. District Judge John Bates wrote that Aetna, pushing for a $37 billion merger with Humana since the summer of 2015, decided to leave 17 counties in three states - including one where the business was doing well - to improve the likelihood that the deal would be approved. Florida was the firm's third-most-profitable exchange market in 2015.

"I just can't make sense out of the Florida decision," Christopher Ciano, Aetna's Florida market president, wrote in an email quoted in the opinion. "Never thought we would pull the plug all together. Based on the latest run rate data . . . we are making money from the on-exchange business."

The federal court decision hinged largely on an argument that the proposed merger would substantially decrease competition in the Medicare Advantage market in 364 counties, where private insurers provide Medicare benefits. But it also included the politically tempestuous issue of competition on the exchanges, which are a linchpin of the ACA, also known as Obamacare. The exchanges are state- and federally run marketplaces where insurers sell plans to people who do not have employer-based insurance.

When Aetna said last summer that it was losing money in the health insurance exchanges and would exit most of them for 2017, the announcement helped spark a national debate about the sustainability of the ACA's exchanges. The opinion provides a rare glimpse into the politics behind Aetna's participation in the exchanges, revealing what executives said in emails and in depositions.

Aetna was losing money in the exchanges, nationally, from Day One - and faster than it expected. Aetna projected losses of $70 million in 2014 but lost $100 million. In 2015, it expected a $100 million profit but lost $131 million. The company remained committed to the exchanges in early 2016 and, the opinion reveals, tried to remind the Obama administration of its dedication as its proposed merger was being evaluated by antitrust officials.

A month before the Justice Department blocked the merger, Aetna chief executive Mark Bertolini talked with then-Health and Human Services Secretary Sylvia Mathews Burwell by phone.

"If, by chance, you get a reach-out from the DOJ about us as a candidate for this merger, I would appreciate a good word for all that we've done with you," he said, according to the opinion.

When the merger was blocked in July, Bertolini said in an email to former Aetna chief executive Ron Williams that "the administration has a very short memory, absolutely no loyalty and a very thin skin," according to the opinion. He was frustrated that his company had endured major losses on the exchanges and yet were "doing good things for the administration and the administration is suing us," according to a later deposition.

In early July, Bertolini learned about big losses in Aetna's exchange business for the second quarter of 2016 and began to reevaluate the firm's participation. Shortly after, Justice blocked the merger. According to the opinion, after learning that Humana was staying in the 17 counties highlighted by antitrust officials in their case, the company decided to withdraw from those counties "to avoid antitrust scrutiny."

"Other documents and testimony also indicate that the team of executives did not evaluate the profitability of the 17 counties in the same manner as it did for the other states from which Aetna was considering withdrawing," Bates wrote in his opinion.

The judge ultimately decided that Aetna probably would continue to offer exchange plans in one of the states, Florida, because the business was profitable even though the company said it was a business decision - thus the proposed merger would have had anticompetitive effects in that state's three counties. The opinion also shows how competition works between insurers to help consumers.

Ciano, the Florida market president, expressed concern in an email that Aetna was falling behind Humana in enrollment and recommended lowering "rates" by 4 percent for 2016 to "maintain #1 in Broward" County, according to the opinion.

A Humana executive, according to the opinion, was doing similar research on Aetna, requesting information on Aetna's pricing and plan design and where it offered plans in the exchanges.

Bates was unconvinced by the firms' arguments that the merger would not hurt consumers in Florida. "The Court's conclusion is again based on the level of market concentration and the evidence of substantial head-to-head competition between Aetna and Humana that would be lost," Bates wrote.

It is unclear what action the companies will take next.

"After putting forward a compelling case that addressed each of the Department of Justice concerns, we are disappointed with the court's decision and will carefully consider all available options," Bertolini and Humana chief executive Bruce Broussard said in a joint statement. They said health plan members would be unaffected as the companies worked through their next steps.