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

By Order Regarding the Record issued on August 30, 2007, the Superintendent excluded from the record certain exhibits identified in the index to the record that the Dirigo Board filed on August 6, 2007, that according to Dirigo were not offered and admitted into the record of the proceeding at the Dirigo Board hearing. One of the exhibits so identified by Dirigo was Chamber 10B.

In its filing made on September 12, 2007, responding to the Hearing Questions for Citations to the Record, the Chamber identified where exhibit Chamber 10B was offered and admitted into the record. Citing Record pp. 194, 213, 512 at ln. 23 through 515 at ln. 7, 548 at ln. 2-5, 5759. Upon review of the citations provided by the Chamber, the Superintendent finds that exhibit Chamber 10B was offered and admitted into the record and hereby ORDERS that exhibit Chamber 10B is a part of the record. Except as modified by this Order all terms of the August 30th Order Regarding the Record shall remain in full force and effect without modification.

However, given that Dirigo’s index to the record was inaccurate as to the offer and admission of exhibit Chamber 10B, the Superintendent requests that each party review the record as to the offer and admission, or lack thereof, of those other exhibits identified by Dirigo as not admitted in the record of the proceeding at the Dirigo Board hearing, namely exhibits DHA 3; CAHC 2, 3, 4, 5, 7, 8; MEAHP 10, 11, 12; and MADIT 1, 7, 9. To the extent the record demonstrates that any of the foregoing exhibits were admitted into the record, any party shall provide written notice to the Superintendent accompanied by supporting citations to the record.

Concerning the part of the August 30th Order Regarding the Record that ruled on MEAHP’s August 16th motion, and MEAHP’s September 7th filing objecting to such ruling, the Superintendent hereby reaffirms his ruling. By its motion MEAHP requested that the Superintendent include the Sheils, Mercier, and Michaud Year Two pre-filed testimonies and exclude the Thorpe Year Two pre-filed testimony in the Dirigo Year Three record. The Superintendent declined to alter the record beyond that developed at hearing in the Dirigo Year Three proceeding. Challenges to the admission and omission of evidence by the Dirigo Board at its proceedings are beyond the jurisdiction of the Superintendent. The Superintendent’s jurisdiction with regard to the scope of the record is limited to verifying what evidence the Board did or did not admit based on a review of the record. The Superintendent must deal with the record as he finds it. The Dirigo Board Year Three record demonstrates that the Dirigo Health Agency (“DHA”) identified documents it would potentially rely on via a list of documents available in various places. One such category of documents was identified as “Year Two Pre-filed Testimony” that was supported by reference to a website. Had any party reviewed the materials at that website under the specified heading they would have found Thorpe’s testimony and would not have found the testimonies of Sheils, Mercier, and Michaud. DHA, consistent with the documents available at that website, offered into the record at hearing hard copies of various documents, including Thorpe’s pre-filed testimony from Year Two. The documents were then admitted into the record at the Board proceeding. The Sheils, Mercier, and Michaud Year Two pre-filed testimonies were not offered for admission into the record. Thus, the Superintendent is left with a Year Three record that includes some pre-filed testimony not admitted in Year Two and excluding some pre-filed testimony that was admitted in Year Two. The Superintendent does not have the authority to redress allegations that Dirigo in Year Three improperly admitted pre-filed testimony from Year Two of Consumers for Affordable Health Care witness Thorpe and improperly omitted pre-filed testimony from Year Two of Maine State Chamber of Commerce witnesses Mercier, Michaud, and Sheils.

PER ORDER OF THE SUPERINTENDENT OF INSURANCE

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