> Dirigo Health Filing

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

On August 16, 2007, the Maine Association of Health Plans ("MEAHP") filed with the Superintendent a motion entitled Amended Party Notice to Dirigo Regarding Completeness of the Record, to which the Dirigo Health Agency ("DHA") filed a response on August 17, 2007. On August 21, 2007, a telephonic conference of counsel was convened among the Superintendent's attorneys and counsel for each party to the proceeding.

By its filing, MEAHP: (1) made comments (in table form) regarding DHA's August 6, 2007, filing with the Superintendent of the record of the proceeding before DHA; (2) requested that DHA resubmit various spreadsheets in electronic form for inclusion in the record; (3) moved that the Dirigo Board Year Two proceeding pre-filed testimonies of Maine State Chamber of Commerce witnesses John Sheils, Roland Mercier, and Steven Michaud be included in the record; and (4) moved that the Dirigo Board Year Two proceeding pre-filed testimony of Consumers for Affordable Health Care ("CAHC") witness Dr. Thorpe be excluded from the record. DHA's response (a) included a table separately replying to each of MEAHP's comments, and (b) provided DHA's rationale for excluding or including the pre-filed testimonies of Sheils, Mercier, Michaud, and Thorpe in the record.

At the conference of counsel, MEAHP accepted DHA's responses to the various comments set forth in the table in MEAHP's August 16th filing, and to the comments regarding the spreadsheets. No other party challenged or otherwise objected to DHA's responses. Thereafter the conference of counsel focused on the question of whether the record of the Dirigo Board Year Three proceeding filed with the Superintendent included the pre-filed testimonies of certain witnesses from the Year Two proceeding before the Board, specifically Sheils, Mercier, Michaud, and Thorpe.¹

Upon careful review of the record the Superintendent finds that no party moved for the admission of the Year Two pre-filed testimonies of Sheils, Mercier, and Michaud into the record at the Dirigo Board Year Three proceeding. At the Year Three proceeding DHA offered Exhibit DHA 2, including Tab 7 that includes some but not all of the pre-filed testimonies from the Dirigo Board Year Two proceeding. See Record at pp. 1524 through 1929. Exhibit DHA 2 was then admitted into the record without objection from any party. Exhibit DHA 2, like the website identified in the Document List, Line 7, does not include the pre-filed testimonies of Sheils, Mercier, and Michaud. Counsel for DHA confirmed that these testimonies were omitted from DHA's Exhibit 2, Tab 7. See Attachment A to DHA Response to MEAHP's Notice to Dirigo Regarding Completeness of the Record, at p. 3. Therefore, the Superintendent declines to expand the record beyond that evidence admitted into the record at hearing in the Dirigo Board Year Three proceeding. Furthermore, no party referred to the Sheils, Mercier, and Michaud Year Two pre-filed testimonies at the Dirigo Board Year Three proceeding on the record that has been filed with the Superintendent. New pre-filed testimony of Mercier was admitted into the record of the Dirigo Board Year Three proceeding, and Mercier testified at the hearing. As a result, the Superintendent finds that no prejudice will result from not including the Year Two pre-filed testimonies of Sheils, Mercier, and Michaud in the record. The Superintendent finds that the disputed Sheils, Mercier, and Michaud pre-filed testimonies were not offered and admitted into the record and, therefore, DENIES the motion of MEAHP to include such testimonies.

Regarding the Year Two pre-filed testimony of Thorpe, DHA moved for its introduction into the record of the Year Three proceeding via the offer and admission at hearing of Exhibit DHA 2. The Thorpe testimony appears among other pre-filed testimonies at Tab 7 of Exhibit DHA 2. See Record at pp. 1809 through 1869. Prior to hearing, DHA identified the Thorpe pre-filed testimony in the agency's Witness, Expert, and Document Disclosure filing. See Record at p. 657. No party objected to the inclusion of Thorpe's pre-filed testimony in DHA Exhibit 2 on any grounds when it was offered for admission at the Year Three hearing. However, while Thorpe's Year Two pre-filed testimony was apparently intended by DHA to be included in the record, no party referred to the Thorpe pre-filed testimony at hearing, in briefs, or in other filings. As explained by DHA counsel at the conference, this is likely because Dirigo's methodology for calculating bad debt and charity care significantly changed in Year Three and Thorpe's pre-filed testimony from Year Two focused on the previous methodology for bad debt and charity care. The Superintendent finds that no prejudice will result from including the Year Two pre-filed testimony of Thorpe in the record. The Superintendent hereby ORDERS that the Thorpe pre-filed testimony is properly included in the record and, therefore, DENIES the motion of MEAHP to exclude such testimony.

The Superintendent's review of DHA's table of contents to the record shows certain evidentiary exhibits filed by parties with the Dirigo Board that according to DHA's index were not offered and admitted into the record of the proceeding at the Dirigo Board hearing. Exhibits so identified by DHA's index are: DHA 3; CAHC 2,3,4,5,7,8; Chamber 10B; MEAHP 10,11,12; MADIT 1,7,9. The Superintendent hereby ORDERS that the exhibits identified as DHA 3; CAHC 2,3,4,5,7,8; Chamber IOB; MEAHP 10, 11, 12; and MADIT 1,7,9 are not properly a part of the record, and shall be and are excluded from it, thus specifically striking the corresponding pages of the paper record (as those pages are identified on DHA's table of contents) as well as any electronic copy of those pages.

¹ This question arises due to what the parties assert is a misunderstanding caused by DHA's Document List, provided by DHA to the parties as a disclosure of the materials relied on by the agency's expert, Steven Schramm. Record at p. 657; also available at http://www.dirigohealth.maine.gov/Document_List.htm. The Document List itself was identified by a website address, and then within the Document List are further website addresses. The disputed Line 7 is entitled "Year 2 Board Hearing pre-filed testimony." MEAHP indicated that this heading led them to understand that this category was specifically all of the pre-filed testimonies that were offered and admitted at the Dirigo Board Year Two proceeding. However, the link leads to a website maintained by DHA that includes the pre-filed testimony of Thorpe, a witness for CAHC who did not testify at the Year Two hearing, and thus his pre-filed testimony was neither offered nor admitted in the Year Two proceeding. In addition, this website omitted the Year Two pre-filed testimonies of Sheils, Mercier, and Michaud, all three of which were offered and admitted at the Year Two proceeding.

PER ORDER OF THE SUPERINTENDENT OF INSURANCE

> Dirigo Health Filing