Antitrust Lawyer Blog Commentary on Current Developments

Articles Tagged with humana

On July 21, the U.S. Department of Justice’s Department of Justice (“DOJ”) and several state attorneys general filed two lawsuits, challenging two major health insurer mergers: (1) Anthem, Inc.’s (“Anthem”) proposed $48.4 billion purchase of Cigna Corporation (“Cigna”) and (2) Aetna Inc.’s (“Aetna”) planned $37 billion acquisition of Humana Inc. (“Humana”).

While the cases are substantially different, both complaints contain some similar allegations.  Both complaints describe the proposed mergers as consolidation of the “big five” insurers to the “big three, each of which would have almost twice the revenue of the next largest insurer.”   Taken together, they would cut the number of major health insurers from five to three, with UnitedHealth Group Incorporated (“UnitedHealth”) being the only other remaining large player.  Both complaints say the mergers will harm competition by “eliminating two innovative competitors – Humana and Cigna – at a time when the industry is experimenting with new ways to lower healthcare costs.”  Both complaints allege that the mergers will restrain competition in the sale of individual policies on the public insurance exchanges.

However, the cases are different in that they focus on different product and geographic markets and that the Anthem/Cigna complaint contains a monopsony claim while the Aetna/Humana complaint does not.  The Anthem/Cigna complaint alleges that that merger will restrain competition in the “purchase of healthcare services by commercial health insurers,” as well as the sale of commercial health insurance to national accounts and large-group employers, and the sale of individual policies on the public insurance exchanges.  The Anthem/Cigna complaint also includes an allegation that the merger would substantially increase Anthem’s ability to dictate the reimbursement rates it pays hospitals, doctors, and healthcare providers, threatening the availability and quality of medical care.  The DOJ alleges that Anthem already has bargaining leverage over healthcare providers and this acquisition would make the situation worse in 35 metropolitan areas.  This is otherwise known as a monopsony theory.   The Aetna/Humana complaint alleges anticompetitive effects only in the sale of Medicare Advantage policies to individual seniors and the sale of individual polices on the public exchanges.   The Aetna complaint does not charge a violation in the market for the purchase of healthcare services, and therefore does not rely on a monopsony theory.  Even where the complaints overlap with respect to product market as is the case with the sale of individual policies on the public insurance exchanges, the geographic markets are different.

On March 27, 2012, the DOJ announced it would require Humana, a leading health insurer in the United States with 2010 revenues of approximately $33.6 billion, and Arcadian, which had approximately 62,000 MA members in 15 states and 2010 revenues of $622 million, to divest assets relating to Arcadian’s MA business in parts of five states in order for Humana to proceed with its acquisition of Arcadian.  The DOJ required divestitures of health plans in 51 counties and parishes in Arizona, Arkansas, Louisiana, Oklahoma and Texas.  The transaction, as originally proposed, likely would have resulted in higher prices, fewer choices and lower quality MA plans purchased by Medicare beneficiaries.

According to the DOJ, individuals eligible for Medicare, primarily senior citizens, may elect to enroll in a privately provided MA plan instead of traditional Medicare.  In establishing the MA program, Congress intended that vigorous competition among private MA insurers would lead insurers to offer seniors a rich set of affordable benefits, provide a wide array of health-insurance choices, and be responsive to the demands of seniors.  Approximately 71,000 people were enrolled in MA plans in 51 counties and parishes, accounting for more than $700 million in annual commerce.

The transaction as proposed would have eliminated competition between Humana and Arcadian, two of the few significant sellers of MA plans in 45 of the counties and parishes, allowing Humana to increase prices and reduce the quality of MA plans sold to seniors there.  The original deal would have created a combined company controlling between 40% and 100% of the MA health insurance market in these counties and parishes.