Here are 5 strategies the insurers have underway:
1. The Aetna-Humana deal would result in the largest Medicare Advantage plan seller, which the DOJ claims would be anticompetitive. Aetna's CEO Mark Bertolini told Reuters the insurer will argue the DOJ's defined Medicare Advantage market — which hones in on a county-by-county analysis of where the two insurers have large market shares — is too narrow.
2. Aetna will argue the department did not address the fact seniors can chose Medicare plans from both private insurers and government-run Medicare. Aetna will also argue that, under the Affordable Care Act, the government imagined government-run Medicare and Medicare Advantage would be competitors.
3. If the insurer must divest its Medicare Advantage assets, Mr. Bertolini said Aetna has already shown the DOJ a plan to sell its assets in the 364 counties in which the DOJ argues the deal would curb competition. Aetna currently has two prospective buyers, Tampa, Fla.-based WellCare Health Plans and Molina HealthCare.
4. With a similar DOJ lawsuit filed against Indianapolis-based Anthem's $54 billion acquisition of Bloomfield, Conn.-based Cigna, the Aetna-Humana deal could gain leverage if the former is axed. Anthem could then be a potential buyer of Aetna's Medicare Advantage divestures.
5. Humana CEO Bruce Broussard told Reuters the insurer will answer the government's concerns about competition on the ACA market by pulling out of many state exchanges. Humana will offer plans in 160 U.S. counties in 2017, down from 1,351 counties this year.