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On June 29, 2005, Alessandro A. Iuppa, Superintendent of Insurance, issued a Notice of Pending Proceeding and Hearing in this matter.1 As mandated by the provisions of P.L. 2005, ch. 400, sec. B-2(2)(A), the Dirigo Board was required to file with the Superintendent for approval, in whole or in part, the Board’s determination as to the aggregate measurable cost savings in this State as a result of the operation of Dirigo Health, including any reduction or avoidance of bad debt and charity care cost to health care providers resulting from the operation of Dirigo Health and any increased MaineCare enrollment due to an expansion in MaineCare eligibility occurring after June 30, 2004 (the “Dirigo Filing.”) The Dirigo Filing was made with the Superintendent on September 19, 2005. As further mandated by the provisions of P.L. 2005, ch. 400, sec. B-2(2)(B), the Superintendent’s decision in this proceeding must be issued no later than October 29, 2005. In the June 29th Notice, the Superintendent established that a public hearing would be held on the Dirigo Filing beginning at 9:00 a.m. on October 27, 2005. Pursuant to Bureau of Insurance Rule Chapter 350(13)(G), persons are hereby notified that the first session of the public hearing is changed to begin at 9:00 am. on October 24, 2005, in Room 209 of the Burton M. Cross Office Building, 111 Sewall Street, Augusta, Maine. Subsequent days of hearing, to the extent deemed necessary by the Superintendent, will be held beginning at 9:00 a.m. on October 27, 2005, in the Central Conference Room of the Maine Department of Professional and Financial Regulation Building, 124 Northern Avenue, Gardiner, Maine.2 Maine Insurance Rule Chapter 350(3)(A) provides that the Superintendent may, where good cause appears, deviate from the provisions of Rule 350 insofar as he finds compliance therewith to be impracticable, inexpedient, or unnecessary. The Superintendent anticipates that this proceeding will involve unique issues, may involve multiple parties, and will require stringent procedures for the issuance of a decision by October 29, 2005. Thus, the Superintendent considers it prudent to set out in detail the procedures to be applied in this proceeding. In addition to the procedures set forth in this Order, this proceeding will also be conducted pursuant to the Maine Administrative Procedure Act, 5 M.R.S.A. Chapter 375, subchapter IV, and 24-A M.R.S.A. §§ 229 to 236. Maine Insurance Rule Chapter 350 shall also apply to the extent not inconsistent with this Order. I. PARTIES AND INTERVENTION The Dirigo Health agency, through its Board of Directors, is a party to the proceeding. The June 29th Notice advised that other persons wishing to intervene as parties to the proceeding have until 3:00 p.m. on September 23, 2005 to file their applications in writing with the Superintendent. Only those persons willing to undertake the responsibilities placed upon parties to an adjudicatory proceeding under Bureau of Insurance Rule Chapter 350 should seek intervenor status. Persons granted intervenor status become full or limited parties to the proceeding who, in certain circumstances, may issue and receive informational requests (discovery); present evidence and arguments on issues; prefile testimony and exhibits; be subject to cross-examination; and file motions, briefs, and other pleadings; among other matters. II. SCHEDULE OF PROCEEDING The schedule of proceeding set forth below is hereby established by the Superintendent. All persons are advised that this schedule is subject to change based upon developments in the proceeding and prospectively should verify the current schedule as necessary.
III. SERVICE OF DOCUMENTS A. Where to File All filings and other correspondence relating to this proceeding should
be either hand delivered to the Superintendent at the offices of the Bureau
of Insurance, 124 Northern Avenue, Alessandro A. Iuppa, Superintendent B. Method of Filing All documents filed by parties in this proceeding must meet the following criteria:
A party to the proceeding may request relief from compliance with the electronic filing requirement. Any request filed with the Superintendent should explain the reason why relief is requested. Documents created for purposes other than discovery and which were created prior to the receipt of a discovery request need not be filed electronically. A “document” is defined as the cover letter, the substantive document, and the certificate of service. For purposes of complying with filing deadlines, the Superintendent will accept official documents filed by electronic mail, but will not accept any such documents filed by facsimile transmission. Unless otherwise ordered by the Superintendent, all documents due to be filed by a date certain must be filed no later than 3:00 p.m. of the due date. Filings made after that time will be considered filed late and will be date stamped as having been received the next day. C. Service on Other Parties A service list will be established by the Superintendent and provided to all parties. Each party is to provide the Superintendent immediately with the name, address, telephone number, FAX number, and e-mail address of one person upon whom service for that party is to be made. If service is made on a party both electronically and by hard copy, the document shall be considered received on the earliest date of receipt and the time to respond shall be calculated using the date the document is first received. Each party must include a certification of service on other parties as part of any filing or submission made to the Superintendent. Service on other parties shall be simultaneous with filing with the Superintendent. Neither the Superintendent nor Bureau of Insurance staff will be responsible for providing copies of filings or other documents to the service list. If a party fails to serve all other parties on the designated service list, the filing will not be accepted by the Superintendent until proof of service on all parties is provided. IV. FORMAT OF FILING All documents filed by parties to the proceeding shall be appropriately captioned following the caption format at the top of the first page of this Order, specifically including the Docket Number assigned by the Superintendent to the proceeding, INS-05-700. All filings made by parties in this proceeding must include a table of contents only if more than one document is contained within the filing, or if one document contains multiple sections. In addition, all documents filed by parties must include a separate cover sheet that includes all of the information set forth below:
All documents filed with the Superintendent by parties to the proceeding must be paginated. V. SUBMISSION OF CONFIDENTIAL INFORMATION A. Submission All confidential documents or portions of documents for which a party asserts confidentiality must be filed separately. Hard copy filings of documents under claim of confidentiality must be made with red covers. Electronic copy filings of documents must conspicuously identify in the e-mail subject line the claim of confidentiality. All pages of any documents for which confidentiality is asserted must be prominently labeled or stamped as confidential. All submissions properly identified in accordance with this paragraph will be maintained as confidential unless and until the Superintendent rules otherwise. B. Presumption of Public Access Under both the Maine Insurance Code and Freedom of Access Act, the Superintendent is required to disclose public records. See 24-A M.R.S.A. § 216(2); 1 M.R.S.A. §§ 401, 408(1). The presumption is that citizens have a right of free access to documents filed with the Superintendent. Thus, the public has a right of access to Bureau records unless it is demonstrated that such information meets one of the strictly construed exceptions to disclosure. See 1 M.R.S.A. § 402(3)(A)-(M). C. Memorandum in Support The party requesting confidentiality must provide the Superintendent with a memorandum of law in support of the request. Except with leave of the Superintendent, the memorandum in support must be submitted with the documents for which confidentiality is requested. The memorandum must clearly identify those documents, or portions of documents, for which confidentiality is requested, the reason for the request, and any supporting legal authority. Specifically, the memorandum of law shall include detailed legal analysis as to why the information is not a public record pursuant to the provisions of the Freedom of Access Act, including identification of which statutory exception protects the information from being made publicly available. D. Challenges to Confidentiality Assertions If an assertion of confidentiality is challenged, the party claiming confidentiality will be notified and provided an opportunity to argue in favor of continued protection. E. Protective Order All information or documentation for which confidentiality is provided by the Superintendent, and all parties to the proceeding, are subject to the terms of any protective order(s) that the Superintendent may issue. VI. MOTIONS Every request or motion for an order or ruling of any kind by the Superintendent shall be in writing, unless made on the record during a hearing to which the request or motion is related. Every request or motion should include or be accompanied by a clear statement of the support for the order or other action sought. The statement supporting the request or motion should also include any arguments with respect to policy or law that have a bearing on the request. Requests or motions and their supporting papers should be clearly labeled on the first page and in the caption with a title that includes “motion” or “request,” a short description of the action or order requested, and language in the caption sufficient to identify the matter to which the request or motion relates. If legal arguments are advanced, the supporting statement accompanying the motion shall include citations to all supporting authorities relied upon by the moving party. Any party opposing a request or motion shall file a statement in opposition to the motion or request within four (4) calendar days after receipt of the motion, unless the Superintendent establishes some other period. The Superintendent may rule on any request or motion prior to the expiration of the deadline for filing statements in opposition. If service is by mail, the motion shall be presumed received two (2) days following the date of mailing; provided however, that earlier e-mail receipt shall control if applicable. VII. COMMUNICATIONS WITH THE BUREAU Except as otherwise noted in this section, parties shall not communicate with respect to this proceeding with the Superintendent, Bureau Staff advising the Superintendent in this proceeding, or consultants retained by the Superintendent without notice and opportunity for all parties to be present. Parties may direct questions of a strictly ministerial nature to Vanessa J. Leon, Legal Secretary. Procedural queries should be directed only to Thomas Sturtevant, Assistant Attorney General and Counsel to the Superintendent in this proceeding Recognizing that parties may require input from Bureau staff during this proceeding, and for purposes of assisting in the efficient adjudication of this matter, certain staff members and legal counsel will be available to meet with the parties on Wednesday mornings from 9:00 a.m. to 11:00 a.m. No later than 3:00 p.m. on the Tuesday before a Wednesday meeting, any party wishing to place issues on the agenda must notify Thomas Sturtevant, Assistant Attorney General, via electronic mail at Tom.Sturtevant@maine.gov, and simultaneously serving notice on all parties and Vanessa Leon, Legal Secretary for the Bureau. While all parties may attend the meeting, only the party who placed the item on the agenda and staff will be permitted to address the issue raised unless leave is granted to other parties by Bureau staff in their sole discretion. If no request(s) for agenda items are received by the deadline for submissions, the Wednesday meeting will be cancelled. The first meeting with Bureau staff is scheduled for Wednesday, September 28, 2005, at the Bureau’s offices in Gardiner, Maine. The Superintendent has hired the consulting firm of Compass Health Analytics, Inc. (“Compass Health”) to assist him in this proceeding. Compass Health shall be deemed an agent of the Superintendent and the rules applicable to staff members set forth herein regarding communications and cross-examination shall apply equally to them. VIII. INTERESTED PERSONS LIST & INTERNET POSTINGS The Superintendent is maintaining an interested persons list with respect to this proceeding. Persons on the interested persons list will receive copies of Notices of any Prehearing Conferences and Hearings with respect to this proceeding, but will not receive other pleadings and correspondence except as the Superintendent, in his discretion, may direct. Persons may direct requests to be placed on the interested persons list to Vanessa Leon, Legal Secretary, Maine Bureau of Insurance, 34 State House Station, Augusta, ME 04333-0034. E-mail requests to be place on the interested persons list should be addressed to Vanessa.J.Leon@maine.gov. Subject to the Superintendent’s discretion, public documents relating to this proceeding will be made available to the public via the Bureau’s webpage at www.maine.gov/insurance. IX. DISCOVERY PROCEDURES The Superintendent strongly recommends that parties with similar interests coordinate the drafting and service of informational requests. Copies of all informational requests and responses to informational requests must be served on all parties and filed with the Superintendent according to the same standards and procedures applicable to any other filing in this proceeding. All parties are prohibited from making requests for information that is duplicative of prior requests made by any party. To the extent that documents have been provided previously in this proceeding in response to an informational request, those documents may be referenced in subsequent responses and need not be produced again. Should any party oppose any part of an informational request served, that party and the requesting party shall confer in good faith to attempt to resolve the dispute before filing an objection with the Superintendent. The Superintendent shall rule promptly on any objection filed with him, with or without a hearing, within the discretion of the Superintendent. Informational requests and responses do not become part of the record of the proceeding unless admitted as exhibits during the hearing or as late-filed exhibits. X. PREFILED TESTIMONY AND EXHIBITS On the deadline established for pre-filing, any party wishing to submit evidence shall pre-file with the Superintendent written testimony and exhibits of each witness whom they propose to present in support of their direct cases. A copy of all testimony and exhibits must be served on all other parties to the proceeding in accordance with the requirements set forth above. Such testimony can be admitted as an exhibit at the hearing only if the witness, under oath, affirms the pre-filed testimony and is subject to cross-examination. The pre-filed testimony shall be in question and answer format; summary or other non-testimonial material shall not be accepted. Such pre-filed testimony and exhibits are subject to objection when offered at the hearing, but in no event may be admitted unless the witness submitting the testimony is available at the hearing for cross-examination. The scope of said pre-filed testimony and exhibits shall be limited to the issues and subject matter outlined in the applicable statutes, and by any applicable order of the Superintendent. XI. CONSOLIDATION OF PRESENTATIONS The Superintendent will require parties with similar interests to consolidate presentations of evidence and argument at the hearing. Accordingly, parties with similar interests shall, among other matters, coordinate the use of experts and the testimony of witnesses and issues to be addressed at the hearing. XII. INDEPENDENT STAFF ANALYSIS At his discretion, the Superintendent may direct a member of his staff or his consultant to provide independent analysis of all or part of the filings in this proceeding. Any such analysis shall be made part of the record in this proceeding and the staff member or consultant shall be subject to cross-examination at the hearing. Nothing in this Order shall permit the Superintendent, when rendering a decision, to rely upon any evidence or other factual information outside of that made part of the record. XIII. FAILURE TO COMPLY WITH RULES AND ORDERS Should any party or participant violate or disregard any Bureau Rule or Order of the Superintendent, the Superintendent shall, without any further notice, have the option and may exercise the option, to impose an appropriate sanction, including, without limitation, denial of any party or participant request; striking material from the record; or consideration and reduction or elimination of that party’s or participant’s participation in the proceeding. IV. SPECIAL NEEDS The Department of Professional and Financial Regulation does not discriminate on the basis of disability in admission to, access to, or operation of its programs, services, or activities. Individuals in need of auxiliary aid or with other special needs for effective communication with respect to any aspect of this proceeding are invited to make their needs and preference known to Vanessa J. Leon, tel. 207-624-8452, sufficiently in advance of the hearing so that appropriate arrangements may be made. PER ORDER OF THE SUPERINTENDENT
1 The June 29th Notice was and continues to be posted on the Bureau’s webpage at www.maine.gov/insurance (since July 5, 2005); was mailed to the Dirigo Board, e-mailed to the Bureau’s interested persons list, e-mailed to Dirigo Working Group members, and e-mailed to the Dirigo interested persons list (all on June 30, 2005); was published in the Portland Press Herald / Maine Sunday Telegram, the Sun Journal, the Kennebec Journal, the Morning Sentinel, and the Bangor Daily News (weekday editions, September 1, 2005, and weekend editions, September 3 or 4, 2005). 2 Hearings may extend late into the evening at the sole discretion of the Superintendent. Last Updated: July 16, 2008 |
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