Dirigo Procedural Order : Bureau of Insurance

STATE OF MAINE
DEPARTMENT OF PROFESSIONAL AND FINANCIAL REGULATION
BUREAU OF INSURANCE

IN RE:

REVIEW OF AGGREGATE
MEASURABLE COST SAVINGS
DETERMINED BY DIRIGO
HEALTH FOR THE FOURTH
ASSESSMENT YEAR

Docket No. INS-08-900

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PROCEDURAL ORDER

On January 14, 2010, the Dirigo Board filed for approval with the Superintendent the Board’s re-determination of aggregate measurable cost savings (AMCS) in the amount of $78.9 million for the fourth assessment year, together with the supporting documentation. The Board’s re-determination of AMCS results from the Superior Court’s decision in Maine Automobile Dealers Association Insurance Trust, et al. v. Superintendent of Insurance and Dirigo Health Agency, KEN-AP-08-71, 08-72, 08-73 & 08-74 (Me. Super. Ct., Ken. Cty., Aug. 31, 2009) (Jabar, J.). That decision ordered me to remand the matter back to the Board for purposes of determining an AMCS consistent with the law and the Superior Court decision, which I did.

Pursuant to former 24-A M.R.S.A. § 6913(1)(C),¹ my authority,“[f]ollowing a public hearing held in accordance with the Maine Administrative Procedure Act,” is to “issue an order approving, in whole or in part, or disapproving the [Board’s] filing” and I am further obligated to “approve the filing upon a determination that the aggregate measurable cost savings filed by the board are reasonably supported by the evidence in the record.” In undertaking my statutory responsibility, the Superior Court held that:

. . . the Superintendent’s role, much like an appellate court, is not to perform the work of the Board but to review the Board’s determination of AMCS and determine whether the filing is reasonably supported by the evidence in the record. See 24-A M.R.S. § 6913(1)(C). Acting in this quasi-appellate capacity, the Superintendent is not to substitute its determination for the determination by the Board, nor is the Superintendent empowered to modify the determination by the Board. There may be other ways of determining AMCS, but the question for the Superintendent is whether the Board determination is reasonably supported by the evidence on the record.

Maine Automobile Dealers Association Insurance Trust, et al. v. Superintendent of Insurance and Dirigo Health Agency, KEN-AP-08-71, 08-72, 08-73 & 08-74, at p. 4.

The Dirigo Health Agency (DHA), through its Board of Directors, is a party to the proceeding. Former 24-A M.R.S.A. § 6913(1)(C). Other parties to the proceeding, pursuant to my grants of intervention, include the Maine Automobile Dealers Association Insurance Trust (“Trust”), the Maine State Chamber of Commerce (“Chamber”), the Maine Association of Health Plans (“MEAHP”), Anthem Health Plans of Maine, Inc. (“Anthem”), and Consumers for Affordable Health Care (“CAHC”).² The Board, through DHA as the moving party, has the burden of proving that its determination of AMCS is reasonably supported by the evidence in the record.

The supporting documentation from the Dirigo re-determination proceeding filed by DHA with me demonstrates that, unlike in past Dirigo proceedings, the payor intervenors (comprised of the Trust, the Chamber, MEAHP, and Anthem) did not contest or otherwise challenge DHA’s re-calculation or re-determination of AMCS on remand. The record of the Dirigo re-determination proceeding filed by DHA with me, therefore, is limited to DHA’s presentation of its case-in-chief before the Board. There is no evidence in the record of the Dirigo re-determination proceeding in opposition to DHA's case-in-chief.

In accordance with the Superior Court’s decision that my role is to act in a quasi-appellate capacity, and am not to substitute my determination for the determination by the Board, nor am I empowered to modify the determination by the Board, I will approve the Board’s determination of AMCS if it is reasonably supported by the evidence on the record. Accordingly, the parties are advised that a public hearing held in accordance with the Maine Administrative Procedure Act will begin at 10:00 a.m. on February 12, 2010, in the Androscoggin Room at the Department of Professional and Financial Regulation, Gardiner Annex, 76 Northern Avenue, Gardiner, Maine. Members of the public are invited to attend the hearing.

All parties to this proceeding have the opportunity to file briefs. Intervenor parties may file briefs on or before February 4, 2010; DHA may file its brief by February 9, 2010; any intervenor party may file a reply brief by February 11, 2010. On a showing of good cause or on her own determination the Superintendent may increase or decrease the time limits prescribed in this paragraph.

The Superintendent will hear oral argument by Dirigo and the intervenor parties at the public hearing in this matter. The parties shall notify the Superintendent by the deadline for filing their brief (i.e., intervenor parties by February 4th, DHA by February 9th) how much time they anticipate needing for argument.

PER ORDER OF THE SUPERINTENDENT OF INSURANCE

January 27, 2010

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MILA KOFMAN, Superintendent

¹ Notwithstanding the repeal of section 6913 in 2009, the Legislature established that the savings offset payments that have been calculated and required under former section 6913 for claims paid prior to the effective date of repeal are due and payable in the same manner and subject to the same procedures set forth in former section 6913. See P.L. 2009, ch. 359, § 7 (effective October 1, 2009).

² By Order issued August 18, 2008, I granted intervention to the Trust represented by Bruce Gerrity, Esq.; the Chamber represented by William Stiles, Esq.; MEAHP represented by D. Michael Frink, Esq.; Anthem represented by Christopher Roach, Esq.; and CAHC represented by Joseph Ditre, Esq.

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