Maine Auto. Dealers Ass'n Ins. Trust v. Superintendent of Ins.

• Court: Superior Court of Maine
• Decided: August 31, 2009
• Docket: KENap-08-73and74
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NOS. AP-08-71, 08-72, 08-73 & 08-7,4 . ~r . I .J I v \ \ •. r~! . .\J. J d,~. i ' /:

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MAINE AUTOMOBILE DEALERS ASSOCIAnON INSURANCE TRUST, MAINE STATE CHAMBER OF COMMERCE, MAINE ASSOCIATION OF HEALTH PLANS, and ANTHEM HEALTH PLANS OF MAINE, INC., d/b/a ANTHEM BLUE CROSS AND BLUE SHIELD,

Petitioners

v. DECISION AND ORDER

SUPERINTENDENT OF INSURANCE and DIRIGO HEALTH AGENCY,

Respondents

Before the court is consolidated appeal by the Maine Automobile Dealers

Association Insurance Trust ("the Trust"), the Maine State Chamber of Commerce ("the

Chamber"t Anthem Health Plans of Maine, Inc., ("Anthem"), and the Maine

Association of Health Plans ("MAHP"). Petitioners seek judicial review, pursuant to

M.R. Civ. P. 80C, of a decision by the Superintendent of Insurance.

To provide funding to subsidize the Dirigo Health Agencies ("DHA"), the

legislature has authorized DHA's Board of Trustees ("Board") to establish annually a

savings offset payment to be paid by health insurance carriers, employee benefits excess

insurance carriers, and third-party administrators. See 24-A M.R.S. § 6913(2). The

legislature directs the Board to determine annually the "aggregate measurable cost

savings, including any reduction or avoidance of bad debt and charity care costs to 2

health care providers in this State as a result of the operation of Dirigo Health and any

increased MaineCare enrollment due to an expansion in MaineCare eligibility occurring

after June 30, 2004." In conjunction with their legislative mandate, the Board held an

adjudicatory hearing in July 2008 in which the Trust, the Chambers, Anthem and

MAPH intervened. The Board found "aggregate measurable cost savings" ("AMCS")

totaling $149.6 million. The Board's determination included savings of $119 million

related to expense per case mix adjusted discharge ("ECMAD") and $26.6 related to bad

debt and charity care expenses ("BD / CC"), and $6.6 million in medical loss ratio

savings ("MLR").

Pursuant to statute, 24-A M.R.S. § 6913(1)(B), the Board filed this determination

with the Superintendent of Insurance ("Superintendent"). Following a hearing, the

Superintendent issued a decision in two parts: a decision and order dated September 23,

2008, followed by a decision and order part II, decided on September 30, 2008. The

Superintendent found the record reasonably supported savings attributable to ECMAD

($40 million), BD / CC ($6.1 million), and MLR ($6.6 million). The Superintendent

further found that the BD / CC and MLR savings overlapped by $4 million and

deducted that amount to arrive at a final AMCS figure of $48.7 million. From this

decision, the petitioners have appealed.

Standard of Review

When the decision of an administrative agency is appealed pursuant to M.R. Civ.

P. 80C, the court reviews the agency's decision directly for abuse of discretion, errors of

law, or findings not supported by the evidence. Centamore v. Dep't of Human Servs., 664

A.2d 369,370 (Me. 1995).

When reviewing an agency's interpretation of a statute that is both administered

by the agency and within the agency's expertise, the first inquiry is whether the statute 3

is ambiguous or unambiguous. Competitive Energy Servs., LLC v. Pub. Utils. Comm'n,

2003 ME 12, <[ 15, 818 A.2d 1039, 1046. If the statute is unambiguous, it is interpreted

according to its plain language. Arsenault v. See'y of State, 2006 ME 111, <[ 11, 905 A.2d

285, 288. If, instead, the statute is ambiguous, deference is given to the agency's

interpretation if the interpretation is reasonable. Id.

Discussion

The Dirigo Health Act, see 24-A M.R.S. §§ 6902-6981, sets out the responsibilities

for Dirigo Health Agency ("DHA"), its Board of Trustees and the Superintendent of

Insurance. The legislature conferred differing responsibilities to the two entities.

Section 6902 of the Act indicates that DHA is an independent executive agency

responsible for monitoring and improving the quality of health care in the State. Id. §

6902. The legislation gives DHA broad powers and duties to implement these

objectives. One of the most important duties is the determination of AMCS. See id. §§

6908(2)(B) & 6913(1)(A).

Following the Board's determination of AMCS and a hearing conducted

pursuant to 5 M.R.S. §§ 9501-64, the Board is obligated to file its determination and

supporting information to the Superintendent of Insurance. 24 M.R.S. § 6913(1)(B). The

Superintendent shall then "issue an order approving, in whole or in part, or

disapproving the filing made" by the Board. Id. § 6913(1)(C). The statute provides that

the "superintendent shall 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." Id.

The Legislature intentionally required the Board to compute the AMCS rather

than the Superintendent of Insurance. The legislature adopted this process over a

competing proposal that would have had the Superintendent rather than the Board 4

determine AMCS. See Comm. Amend. B to L.D. 1577, No. S-360, section A-I0 (l22 nd

Legis. 2005).

A central issue in this case is the Superintendent's role in reviewing the Board's

submission and determination of AMCS. The attorney for the Superintendent clearly

defined the role of the Board in its brief as follows:

The law grants only the Board the requisite authority for establishing a methodology to determine AMCS, based on its particular expertise. The Board is explicitly required to consist of persons with knowledge and expertise in health care purchasing, health policy, and health care financing issues - precisely so that body will be capable of accurately and appropriately determining aggregate measurable cost savings. See 24-A M.R.S. § 6904(2-A).... the legislature vested Dirigo [the Board] with the governmental power, authority, knowledge and expertise to determine cost savings to Maine's health care system.

(Resp't Br. at 33-34.)

Conversely, 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 M.RS. § 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.

The court concludes that the Superintendent exceeded her authority and went

beyond the proper function of either approving, in whole or in part, or disapproving

the filing made by the Board. As discussed below, the Superintendent's decision

repeatedly criticized and found incredible many findings and information submitted by

the Board. Furthermore, the Superintendent failed to consider whether the Board used

a medical loss ratio that the legislature mandated be used in the process. The 5

Superintendent avoided the issue by stating it was a matter of law only to be reviewed

by the courts.

I. Discredited Report

The Superintendent's decision is replete with disparaging comments regarding

the Board report and the Board's expert, the consulting firm of Schramm-Raleigh

Health Strategy (srHA). On pages 7 and 8, the Superintendent's decision states:

The existence of its savings is important, but equally important to the savings determination is the quality of the information placed on the record to support the existence of those savings. Shortcomings in this regard have been consistent characteristics of the cases made in each year's proceedings.

This statement by the Superintendent in its decision significantly discredits the Board's

proffered analysis.

On page 10 of the decision, regarding multi-variate regression, the

Superintendent states the following:

The lack of reliable documentation, and the lack of evidence in the record that the analysis was executed in accordance with sound professional principles, makes it inconsistent with the Superintendent's guidance and does not provide the same degree of benefit as an analysis supported by documentation demonstrating that sound methods and reasoning were employed.

Later on page 10, the decision continues: As in prior years, however, there are /I

deficiencies in the completeness and clarity of the records before us.... the record by

DHA (Board) could have and should have been more complete."

The Superintendent's decision continues with statements describing the

inadequacy of the Board's filing. On page 11:

However, it is not only the information provided by DHA that has been found incomplete and lacking in transparency.... In short, both DHA and the payor intervenors have omitted important information and introduced extraneous and misleading information, the net effect of which is to make more difficult the already difficult task of determining AMeS related to the hospital saving initiative. 6

On page 12: "This flaw raises serious questions about the credibility of the entire

analysis." Again, on page 14: "The significant data quality concerns discussed earlier

further reduce the usefulness of any estimate generated by the srHS model." Further,

on pages 21 and 22: "It is clear, however, that the results are sensitive to data quality

and that the on record does not contain evidence necessary to resolve the data quality

issue definitively."

And again, on page 23:

However, srHS estimate also has little persuasive power, even after the best efforts made to correct for its deficiencies. The srHS estimates and the Burke estimate, notwithstanding their deficiencies, are the only measurements of aggregate hospi tal cost savings in the record.

These findings make clear that the Superintendent did not find the information,

data, and conclusions submitted on behalf of the Board to be reliable. Based upon the

record and these findings by the Superintendent, this court finds that the AMCS filed

by the Board were not reasonably supported by the evidence on the record.

Superintendent's Methodology

It is clear that the Superintendent attempted to resolve the issue before her,

despite the unreliable data submitted. The Superintendent undertook to fashion her

own determination of AMCS, a role that exceeded her authority. In undertaking this

task, the Superintendent engaged in functions requiring the specific expertise that the

legislature conferred on the Board. In the Superintendent's brief it conceded that it

"cannot do that which is the province of Dirigo (and visa versa)." See Valente v. Bd. of

Envtl. Prot., 461 A.2d 716, 718 (Me. 1989) (agencies can only exercise those powers

expressly conferred or arising from necessary implication). On page 11 of the

Superintendent's decision, the Superintendent made it clear that the Board and the 7

intervenors did not provide sufficient information, and actually provided extraneous

and misleading information, making the task of determining AMCS that much more

difficult. The Superintendent then attempted to engineer her own determination of

AMCS. The Superintendent attempted to justify her action as an acceptance in part of

the Board's submission. See 24-A M.R.S. § 6913(1)(C). However, it is clear that the

Superintendent undertook her own methodology and analysis.

On page 13 of the decision, the Superintendent commented on the inadequacy of

the information in the record regarding "regression analysis," stating:

[T]he Superintendent and her consultant as part of the review of the record have examined the data on the record to arrive at independent judgment about the severity and impact of these issues.

On page 15, the Superintendent's decision discusses how the Superintendent's

consultant used the data on record, investigated the potential impact of the issues and

adjusted the econometric modeling approach in several ways. Throughout, the decision

explains how the Superintendent and its consultant "tested," "analyzed," and

"approached," the issue. The decision went so far as to characterize the work as "our

analysis," "our methodology," "our model," and "our calculations." For example, on

page 16 of the decision, the Superintendent states: "In our analysis, we computed

estimated net effects of Dirigo under a range of alternative assumptions involving data

quality, based on issues identified in the data quality discussion above."

After continually finding that the Board's submission lacked reliable data, the

Superintendent performed its own analysis and fashioned a compromise between the

Board's submission based on srHS model, and the Burke model submitted by the

intervenors. The Superintendent found it reasonable to consider the Burke model as a

lower bound and the best refinement of the srHS model as an upper bound. Instead of

simply splitting the difference, the Superintendent gave two-thirds weight to the Burke 8

model and one-third weight to the srHS model. The Superintendent then rounded the

weighted average down to the nearest $10 million. To justify this approach, the

Superintendent in her decision on page 23 explained:

[G]reater weight given to the lower estimate can be corroborated by anecdotal evidence, and the persuasive power of anecdotal evidence is not insignificant in light of the low statistical credibility and limited explanatory power of the projections from the models presented by the parties.

The Superintendent went on to say that the most that could be said about the

submission by the Board and the Burke model submitted by the intervenors is that it

was not inconsistent with a $40 million projection made by a member of a senior

management at Maine's largest hospital group. This is not a determination of AMCS by

the Board that is reasonably supported by evidence in the record. This approach by the

Superintendent to come up with its own determination of AMCS is not within its

mandate. The Superintendent has the authority to disapprove the submission and

remand the matter back to the Board, upon which has the legislatively conferred the

responsibility for determining AMCS. The Superintendent attempts to justify her action

as an acceptance in part of the Board's submission because it is less than the amount

submitted by the Board. However, the Superintendent did not accept the Board's

finding in part; it fashioned its own determination of A1.1CS.

Furthermore, the Superintendent is not in the same position as the

Superintendent in Maine AFL-CIO v. Superintendent of Insurance, 595 A.2d 424 (Me.

1991), relied on by the respondents. In that case, the Superintendent was acting as a

ratemaker in a ratemaking proceeding. Id. at 429-30 (explaining that Superintendent's

role, pursuant to 24-A M.R.S.A.§ 2363(7), was "to establish rates"). The Superintendent

held hearings, heard evidence, made findings of fact and concluded the process by

setting insurance rates. Id. Conversely, in this case, the Superintendent is acting in a 9

quasi-appellate capacity, revIewmg a submission by another agency to determine

whether the Board's determination is reasonably supported by evidence in the record.

II. CMAD Methodology

Another issue raised by the intervenors is that the srHS model did not use the

CMAD formula found in chapter 394(4)(B). See P.L. 2005, ch. 394, § 4(1). The

Superintendent avoided this issue, indicating that it was not a legal tribunal with the

authority to review the Board's interpretation of law. However, the Superintendent

must consider whether a proper methodology was used by the Board in submitting its

determination of AMCS. The Superintendent argues that in its brief that one of its

functions is not to review the methodology used by the Board. (Resp't Br. at 29.) This

IS wrong. In order to evaluate whether the Board's determination is reasonably

supported by the evidence, the Superintendent must review the methodology used by

the Board. In this case, the Superintendent certainly reviewed the methodology used by

the Board and found it wanting in many respects. The Superintendent should have

considered whether or not the Board properly followed the mandate of the legislature

in determining CMAD.

Conclusion

It is apparent that the Superintendent was confronted with an impossible task.

The Superintendent attempted to work with the inadequate information that she was

provided to fashion a determination of AMCS. Instead of determining whether the

AMCS filing submitted by the Board was reasonably supported by the evidence on the

record, the Superintendent fashioned what she considered to be a reasonable alternative

to the Board's AMCS determination. It is clear from the language contained within the

decision that the Superintendent was not satisfied with the information submitted by 10

the Board and did not accept the findings by the Board. The Superintendent, her staff,

and her consultant used their "analysis," "approach," and "judgment" to fashion their

own AMCS determination. The legislature endowed the Board with the expertise, the

responsibility, and the duty to determine AMCS.

For these reasons, the court GRANTS the M.R. Civ. P. 80C appeal filed by the

petitioners in this case and REMANDS this case to the Superintendent with the order

that it disapprove the AMCS determination submitted by the Board because it was not

reasonably supported by the evidence. Furthermore, the court ORDERS that the

Superintendent remand the matter back to the Board for purposes of determining an

AMCS consistent with the law and this decision.

Dated: ~/5/~/ Date Filed __1_0-,---/_2_2_/0_8 _ Kennebec Docket No. _ _A_P_-_0_8_-_7_1 _ County

Action _ _P_e_t_i_t_i_o_n--;:-:F:-o=:-r_R_e_v_i_ew _ 80C J. JABAR

Maine Automobile Dealers Association Superintendent of Insurance Insurance Trust Dirigo Health Agency vs. Plaintiff's Attorney Defendant's Attorney Thomas Sturtevant, Jr., AAC Bruce C. Gerrity, Esq. William Laubenstein, III, AAG Roy R. Pierce, Esq. Michael Colleran, AAG PO Box 1058 6 State House Station Aubusta, ME 04332-1058 Augusta Maine 04333-0006 - Christopher Roach, Esq. (Anthem BCBS) Katherine Rand, Esq. One Monument Square Portland Maine 04101 D. Michael Frink, Esq. (ME Assn.) Date of One Canal Plaza Suite 1000 Entry P.O. Box 7320 Portland ME. 04112

10/22/08 Petition For Review Of Final Agency Action With Independent Claims For Relief, filed 10/22/08. s/Gerrity, Esq.

10/31/08 Petitioner's Motion to Specify the Future Course of Proceedings, filed. s/Pierce, Esq. Proposed Order, filed.

11/7 /08 Entry of Appearance, filed. s/Laubenstein, III, AAG 11/12/08 Appearance and Statement of Position, filed. s/Rand, Esq. Entry of Appearance and Statement of Position of Party-in-Interest Maine Association of Health Plans, filed. s/Frink, Esq. 12/03/08 Unopposed Motion for Consolidation, filed. s/Sturtevant, AAG (11/20/08) Proposed Order, filed.

12/9/08 ORDER SPECIFYING FUTURE COURSE, Jabar, J. The Clerk shall incorporate this Order on the docket by reference pursuant to M.R.Civ.P. 79(a). (12/2/08) Copies mailed to attys. of record. ORDER, Jabar, J. (12/4/08) Motion for Consolidation is GRANTED. Copies mailed to attys. of record.

12/11/08 Certification of Record, filed. s/Sturtevant, AAG NOTICE AND BRIEFING SCHEDULE ISSUED Copies mailed to attys. of record.

1/20/09 Plaintiff/Petitioner Maine State Chamber of Commerce's Brief, filed. s/Stiles, Esq. Rule 80C Brief of the Maine Automobile Dealers Association Insurance Trust, filed. s/Gerrity, Esq. Plaintiff/Petitioner Anthem Health Plans of Maine, Inc.'s Brief in Support of Petition for Review of Final Agency Action, filed. s/Roach, Esq. Brief of Maine Association of Health Plans, filed. s/Frink, Esq. Date of Entry Docket No.

2/4/09 Unopposed Motion for Enlargment of Time to File Brief, filed. s/ Laubenstein, AAG 2/11/09 ORDER, .Tabar, J. The motion of the Dirigo Health Agency for an enlargement of time to to file a brief is hereby granted. The briefs of Respondents, Dirigo Health Agency and Superintendent of Insurance, shall be filed on or before March 6, 2009 Copies mailed to attys. of record.

3/6/09 Brief of Respondent-Defendant Superintendent of Insurance, filed. s/Sturtevant, Jr., AAG Brief of Respondent Dirogo Health Agency, filed. s/Laubenstein, AAG 3/11/09 Errata Filing of the Superintendent of Insurance, filed. s/Sturtevant, AAG

3/20/09 Reply Brief of Maine Association of Health Plans in Support of Petition for Review of Final Agency Action, filed. s/Frink,Esq.

Plaintiff/Petitioner Maine State of Chamber of Commerce's Reply Brief in Support of Petition for Review of Final Agency, filed. s/Frink, Esq.

Reply Brief of the Maine Automobile Dealers Association Insurance Trust, s/Gerrity, Esq. Plaintiff/Petitioner Anthem Health Plans of Maine, Inc.'s Reply Brief, s/Roach, Esq.

5/11/09 Hearing held with Hon. Justice Joseph Jabar, presiding. Tape 1097,1098 Index 2189-7220, 50-90 Attys. of record present. Oral arguments made to the court. Court to take matter under advisement.

6/3/09 Proposed Decision and Order, filed. Proposed Order, filed. Proposed Decision and Order, filed. Proposed Decision and Order, filed. Proposed Decision and Order, filed. 8/31/09 DECISION AND ORDER, Jabar, J. For these reasons, the court GRANTS the M.R.Civ.P. 80C appeal filed by the petitioners in this case and REMANDS this case to the Superintendent with the order that it disapprove the AMCS determination submitted by the Board because it was not reasonably supported by the evidence. Furthermore, the court ORDERS that the Superintendent remand the matter back to the Board of purposes of determining an AMCS consistent with the law and this decision. Copies mailed to attys. of record. Copies to repositories. Date Filed 10/22/08 Kennebec Docket No. AP-08-72 County

Action Petition For Review (ME. Assn.) 80C - D. Michael Frink, Esq. One Canal Plaza, Ste. 1000 P.O. Box 7320 J. JABAR Portland Maine 04112-7320

Superintendent of Insurance Maine State Chamber of Commerce Dirigo Health Agency YS.

Plaintiff's Attorney Defendant's Attorney Thomas Sturtevant, AAG William H. Stiles, Esq. William Laubenstein, III, AAG One Portland Square Michael Colleran, AAG Portland, ME 04112-9586 6 State House Station Augusta Maine 04333-0006 - Christopher Roach, Esq. (Anthem) Katherine Rand, Esq. One Monument Square Portland Maine 04101 Date of Entry

10/24/08 Petition For Review Of Final Agency Action With Independent Claims For Relief, filed 10/22/08. s/Stiles, Esq. 10/31/08 Plaintiff's Motion to Specify Future Course of Proceedings,with Incorporate, Memorandum of Law and Proposed Order, filed. s/Stiles, Esq.

1l/7/08 Entry of Appearance, filed. s/Laubenstein, AAG

Return Receipt made upon Michael Colleran, AAG on 10/22/08, filed. Return Receipt made upon Christopher Roach, Esq. on 10/23/08, filed. Return Receipt made upon Joseph Ditre, Esq. on 10/24/08, filed. Return Receipt made upon D. Michael Frink, Esq. on 10/24/08, filed. Return Receipt made upon Karynlee Harrington on 10/22/08, filed. Return Receipt made upon Roy Pierce, Esq. on 10/23/08. filed. Return Receipt made upon Steven Rowe, AAG on 10/22/08, filed. Return Receipt made upon Thomas Sturtevant, Jr., Esq. on 10/22/08, filed. 111l2/08 Appearance and Statement of Position, filed. stRand, Esq. Entry of Appearance and Statement Position of Party-in-Interest Maine Association of Health Plans, filed. s/Frink, Esq. 12/3/08 Unopposed Motion for Consolidation, filed. s/Sturtevant, AAG (11/20/08) Proposed Order., filed. 12/8/08 ORDER SPECIFYING FUTURE COURSE, Jabar, J. (12/2/08) The Clerk shall incorporate this Order on the docket by reference. Copies mailed to attys. of record. ORDER, Jabar, J. (12/4/08) Motion for Consolidation is GRANTED. Copies mailed to attys. of record.

12/11/08 Certification of Record, filed. s/Sturtevant, AAG NOTICE AND BRIEFING SCHEDULE ISSUED Copies mailed to attys. of record. Date of Entry Docket No.

1/20/09 Plaintiff/Petitioner Maine State Chamber of Commerce's Brief, filed. s/Stiles, Esq. Rule 80C Brief of the Maine Automobile Dealers Association Insurance Trust, filed. s/Gerrity, Esq. Plaintiff/Petitioner Anthem Health Plans of Maine, Inc.'s Brief in Support of Petition for Review of Final Agency Action, filed. s/Roach, E'=:iu Brief of Maine Association of Health Plans, filed. s/Frink, Esq. 2/4/09 Unopposed Motion for Enlargment of Time to File Brief, filed. s/Laubenstc.irc, 2/11/09 ORDER, Jabar, J. The motion of the Dirigo Health Agency for an enlargment of time to file a brief is hereby granted. The briefs of Respondents, Dirigo Health Agency and Superintendent of Insurance, shall be filed on or before March 6, 2009. Copies mailed to attys. of record.

3/6/09 Brief of Respondent-Defendant Superintendent of Insurance, filed. s/Sturtevant, Jr., AAG Brief of Respondent Dirigo Health Agency, filed. s/Laubenstein, AAG 3/11/09 Errata Filing of the Superintendent of Insurance, filed. s/Sturtevant, AAG

3/20/09 Reply Brief of Maine Assocation of Health Plans in Support of Petition for Review of Final Agency Action, filed. s/Frink, Esq. Plaintiff/Petitioner Maine State Chamber of Commerce's Reply Brief in Support of Petition for Review of Final Agency Action, filed. s/Frink, Esq.

Reply Brief of the Maine Automobile Dealers Association Insurance Trust, filed. s/Gerrity, Esq. Plaintiff/Petitioner Anthem Health Plans of Maine, Inc.'s Reply Brief, filed. s/Roach, Esq.

Notice of SOWtlg tor_~ 5-!II/DCj ~ q:1Jt) ttJYJ·

sent to g~'"::~~'ll'rt'::VG of record"

5/11/09 Hearing held with Hon. Justice Joseph Jabar, presiding. Tape 1097,1098 Index 2189-7220,50-90 Attys. of record present. Oral arguments made to the court. Court to matter under advisement.

6/3/09 Proposed Decision and Order, filed. Proposed Order, filed. Proposed Decision and Order, filed. Proposed Decision and Order, filed. Proposed Decision and Order, filed.

8/31/09 DECISION AND ORDER~ Jabar~ J. For these reasons, the court GRANTS the M.R.Civ.P. SOC appeal filed. by the petitioners in this case and REMANDS this case to the Superintendent with the order that it disapprove the AMCS determinatior. submitted by the Board because it was not reasonable supported by the evidence. Furthermore, the court ORDERS that the Superintendent remand the matter back to the Board of purposes of determining an AMCS PAGE 3

Date of AP08-72 Entry Maine State Chamber of Commerce vs. !?B ~etl'lH:endent of Ins. et a1

consistent with the law and this decision. Copies mailed to attys. of record Copies to repositories. Date Filed __1_0_/_2_2_/_0_8_ _ Kennebec Docket No. A_P_-_0_8_-_7_3 . County

Action P_e_t_i_t_i_orn~F;_o-r-R-e-v-l-· e_w _ 80C

J. JABAR

Superintendent, Bureau of Insurance Maine Association of Health Plans Ys. Dirigo Health Agency

Plaintiff's Attorney Defendant's Attorney Thomas Sturtevant, AAG D. Michael Frink, Esq. William Laubenstein, III, AAG PO Box 7320 Michael Colleran, AAG Portland, ME 04112-7320 6 State House Station Augusta Maine 04333-0006 Christopher Roach, Esq. (Anthem) Katharine Rand, Esq. One Monument Square Portland Maine 04101 Date of Entry

10/22/08 Petition For Review Of Final Agency Action and Independent Constitutional Claims For Relief From Governmental Action, Declaratory Relief Requested, filed 10/22/08. s/Frink, Esq. 11/04/08 Filed 10/31/08: Motion to Specify Future Course of Proceedings with incorporated Memorandum of Law and proposed Order filed by Atty. Frink.

11/7 /08 Amended Proposed Order, filed. Entry of Appearance, filed. s/Laubenstein, III, AAG

11/12/08 Appearance and Statement of Position, filed. s/Rand, Esq.

12/3/08 Unopposed Motion for Consolidation, filed. s/Sturtevant, AAG (11/20/08) Proposed Order, filed.

12/9/08 ORDER, Jabar, J. (12/8/08) Moot-Amended order filed and signed. Copies mailed to attys. of record. ORDER, Jabar, J. (12/2/08) (Motion to Specify) The Clerk shall incorporate this Order on the docket by reference. Copies mailed to attys. of record. ORDER, Jabar, J. (12/4/08) Motion for Consolidation is GRANTED. Copies mailed to attys. of record.

12/11/08 Certification of Record, filed. s/Sturtevant, AAG NOTICE AND BRIEFING SCHEDULE ISSUED. Copies mailed to attys. of record.

1/20/09 Plaintiff/Petitioner Maine State Chamber of Commerce's Brief, filed. s/Stiles, Esq. Rule 80C Brief of the Maine Automobile Dealers Association Insurance Trust, filed. s/Gerrity, Esq. Plaintiff/Petitioner Anthem Health Plans of Maine, Inc.'s Brief in Support of Petition for Review of Final Agency Action, filed. s/Roach, Esq. Date of Entry Docket No.

Brief of Maine Association of Health Plans. filed. s/Frink. Esq. 2/4/09 Unopposed Motion for Enlargment of Time to File Brief. filed. s/Laubenstc 2/11/09 ORDER. Jabar. J. The motion of the Dirigo Health Agency for an enlargement of time to file a brief is hereby granted. The briefs of Respondents. Dirigo Health Agency and Superintendent of Insurance. shall be filed on or before March 6. 2009. Copies mailed to attys. of record. 3/6/09 Brief of Respondent-Defendant Superintendent of Insurance. filed. s/Sturtevant. Jr .• AAG Brief of Respondent Dirigo Health Agency. filed. s/Laubenstein. AAG 3/11/09 Errata Filing of the Superintendent of Insurance. filed. s/Sturtevant. AAG

3/20/09 Reply Brief of Maine Association of Health Plans in Support of Petition for Review of Final Agency Action. filed. s/Frink. Esq. Plaintiff/Petitioner Maine State Chamber of Commerce's Reply Brief in Support of Petition for Review of Final Agency Action. filed. s/Frink. Esq.

Reply Brief of the Maine Automobile Dealers Association Insurance Trust. filed. s/Gerrity. Esq. Plaintiff/Petitioner Anthem Health Plans of Maine. Inc!s Reply Brief. filed. s/Roach. Esq.

NCl,ce 01 sowng tor_

sent to ,::ltorneys of record.

5/U/09 Hearing held with Hon. Justice Joseph Jabar. presiding. Tape 1097.1098 Index 2189-7220. 50-90 Attys. of record present. Oral arguments made to the court. Court to take matter under advisement.

6/3/09 Proposed Decision and Order. filed. Proposed Order. £ll",d. Propos",d D",cision and Order. fil",d. Propos",d D",cision and Order. fil",d. Proposed D",cision and Order. fil",d.

8/31/09 DECISION AND ORDER, Jabar. J. For these reasons, the court GRANTS the M.R.Civ.P. 80C appeal filed by the petitioners in this case and REMANDS this case to the Superintendet with the order that is disapprove the AMCS determination submitted by the Board because it was not reasonable supported by the evidence. Furthermore, the court ORDERS that the Superintendent remand the matter back to the Board for purposes of determining an AMCS consistent with the law and this decision. Copies mailed to attys. of record. Copies mailed to repositories. Date Filed 10723/08 Kennebec Docket No. AP08-74 County

. ActIOn Petition 80C for Review

Anthem Health Plans of Maine. Inc. VS. Superintendent of Insurance. et als Plaintiff's Attorney Def.endant's Attorney Lhomas Sturt~vant. AAG Christopher T. Roach. Esq. William Laubenstein. III AAG One Monument Square Michael Colleran. AAG Portland Maine 04101 6 State House Station Augusta Maine 04333-0006 D. Michael Frink. Esq. (ME Assn.) One Canal Plaza. Ste. 1000 P.O. Box 7320 Portland Maine 04112-7320 Date of Entry

10/23/08 Petition for Review of Final Agency Action. filed. s/Roach. Esq. 11/5/08 Unopposed Motion to Spcecify Course of Proceedings with Incorporated Memorandum of Law. filed. s/Rand. Esq. Proposed Order. filed. 11 /7 /08 Entry of Appearance. filed. s/Laubenstein. III. Esq. 11/12/08 Entry of Appearance and Statement of Position of Party-in-Interest Maine Association of Health Plans. filed. s/Frink. Esq. 12/3/08 Unopposed Motion for Consolidation. filed. s/Sturtevant. AAG (11/20/08) Proposed Order. filed. 12/9/08 ORDER. Jabar. J. Motion is GRANTED. Copies mailed to attys. of record. ORDER. Jabar. J. (12/4/08) Motion for Consolidation is GRANTED. Copies mailed to attys of record. 12/11/08 Certification of Record. filed. s/Sturtevant. AAG NOTICE AND BRIEFING SCHEDULE ISSUED. Copies mailed to attys. of record. 1/20/09 Plaintiff/Petitioner Maine State Chamber of Commerce's Brief. filed. s/Stiles. Esq. Rule 80C Brief of the Maine Automobile Dealers Association Insurance Trust. filed. s/Gerrity. Esq. Plaintiff/Petitioner Anthem Health Plans of Maine. Inc.'s Brief in Support of Petition for Reivew of Final Agency Action. filed. s.Roach. Esq. Brief of Maine Association of Health Plans. filed. s/Frink. Esq. 2/4/09 Unopposed Motion for Enlargment of Time to File Brief. filed. s/Laubenstein. AAG 2/11/09 ORDER. Jabar. J. The motion of the Dirigo Health Agency for an enlargement of time to file a biref is hereby granted. The briefs of Respondents. Dirigo Health Agency and Superintendent of Insurance. shall be filed on or before Date of Entry Docket No.

March 6, 2009. Copies mailed to attys. of record. 3/6/09 Brief of Respondent-Defendant Superintendent of Insurance, filed. s/Sturtevant, Jr., AAG Brief of Respondent Dirigo Health Agency, filed. s/Laubenstein, AAG 3/11/09 Errata Filing of the Superintendent of Insurance, filed. s/Sturtevant AAG

3/20/09 Reply Brief of Maine Association of Health Plans in Support of Petition for Review of Final Agency Action, filed. s/Frink, Esq. Plaintiff/Petitioner of Maine Association of Health Plans in Support of Petition for Review of FinalAgency Action, filed. s/Frink, Esq. Reply Brief of the Maine Automobile Dealers Association Insurance Trust, filed. s/Gerrity, Esq. Plaintiff/Petitioner Anthem Health Plans of Maine, Inc.'s Reply Brief, filed. s/Roach, Esq.

5/11/09 Hearing held with Hon. Justice Joseph Jabar, presiding. Tape 1097,1098 Index 2189-7220, 50-90 Attys. of record present. Oral arguments made to the court. Court to take matter under advisement.

6/3/09 Proposed Decision and Order, filed. Proposed Order, filed. Proposed Decision and Order, filed. Proposed Decision and Order, filed. Proposed Decision and Order, filed.

8/31/09 DECISION AND ORDER, Jabar, J. For these reasons, the court GRANTS the M.R.Civ.P. 80C appeal filed by the petitioners in this case and REMANDS this case to the Superintendent with the order that it disapprove the AMCS determination submitted by the Board because it was not reasonable supported by the evidence. Furthermore, the court ORDERS that the Superintendent remand the matter back to the Board for purposes of determining an AMCS consistent with the law and this decision. Copies mailed to attys. of record Copies to repositories.