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> Document 282 : INS 99-14 : Hearing Decision
VIA HAND DELIVERY Kevin Concannon, Commissioner Department of Human Services Augusta, ME 04333
Dear Commissioner Concannon: As you are aware, Anthem Insurance Companies, Inc. ("Anthem"), on behalf of its subsidiary to be formed, Anthem Health Plans of Maine, Inc. ("Anthem BCBS") has submitted various applications to the Superintendent of Insurance ("Superintendent") seeking approval of the acquisition of assets and assumption of liabilities of Blue Cross and Blue Shield of Maine ("BCBSME") (‘the "Acquisition"). As part of the Acquisition, Anthem BCBS will acquire and operate BCBSME’s HMO line of business, HMO Maine. On January 6, 2000, the Superintendent issued an Order in the Bureau Proceeding requiring Anthem, on behalf of Anthem BCBS, to apply pursuant to 24-A M.R.S.A. §§ 4203-4204 for a certificate of authority to operate HMO Maine. The application process requires the Commissioner of Human Services ("Commissioner") to certify that the HMO has received a certificate of need pursuant to 22 M.R.S.A. §§ 301-325 or that a certificate of need is not required. 24-A M.R.S.A. § 4204(2-A)(A). If no certificate of need is required, the applicant must seek from the Commissioner a certificate that several requirements set forth in 24-A M.R.S.A. § 4204(2-A)(B) have been met. As no certificate of is required in connection with the Acquisition, this letter and the enclosed materials seek your certification that the requirements of 24-A M.R.S.A. § 4204(2-A)(B) have been met. Pursuant to 24-A M.R.S.A. § 4203(4), which requires that you and the Superintendent each receive a copy of the application materials, we submit to you two copies of Anthem BCBS’s Application for Certificate of Authority to Operate a Health Maintenance Organization (the "Application"), which contains materials for both (1) the Superintendent’s review of the Application, and (2) your review for the certification required by Section 4204(2-A)(B). Specifically, I direct your attention to the response to Section 4204(2-A)(B), at pages 8 through 10 of the Application. Those pages set forth the inquiries of Section 4204(2-A)(B) and Anthem’s responses thereto, which address the topics for which certification is requested from you. Most of the responses direct you to BCBSME’s Quality Improvement Program Description, a copy of which is attached to the Application as Exhibit A. As stated in the enclosed letter from Robert Frank, Attorney for BCBSME, BCBSME asserts confidential treatment for its Quality Improvement Program Description, which has been separately bound with a red cover and marked as confidential. For the reasons stated below, Anthem, at the request and on behalf of BCBSME, requests that you treat the Quality Improvement Program Description as free from public disclosure under the Maine Freedom of Access Act, 1 M.R.S.A. §§ 401-410 (the "FOAA"). The FOAA exempts from disclosure several types of records, including "records that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records thereof were sought in the course of a court proceeding." Id. § 402(3)(B). The scope of this exemption includes any privilege recognized by Maine law and the rules that courts and statutes have developed to define the scope of a particular privilege. See Moffett v. City of Portland, 400 A.2d 340, 346-47 (Me. 1979). Both Maine Rule of Civil Procedure 26(c)(7) and Maine Rule of Evidence 507 protect entities’ trade secrets. The Supreme Judicial Court of Maine has held that Rule of Evidence 507 is within the scope of this exemption from the FOAA. See Guy Gannett Pub. Co. v. University of Me., 555 A.2d 470, 472 (Me. 1989). To govern trade secrets in Maine, Maine has adopted the Uniform Trade Secrets Act, codified at 10 M.R.S.A. §§ 1541-1548. That Act provides that: "Trade secret" means information, including, but not limited to, a formula, pattern, compilation, program, device, method, technique or process that: (A) [d]erives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (B) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 10 M.R.S.A. § 1542(4). Beyond "trade secrets", Rule 26(c)(7) contemplates protection also for "other confidential research, development, or commercial information." Applying these standards, the Quality Improvement Program Description should be deemed confidential and free from disclosure. The document for which BCBSME seeks confidential treatment reveals the methods by which BCBSME (1) assesses the quality of the services it delivers to its customers and (2) seeks to improve the quality of those services. As such, the information reveals BCBSME’s business practices, which would be valuable to competitors, and injurious to BCBSME if publicly disclosed. If disclosed, competitors could discover the means by which BCBSME seeks to assure the quality of its services to customers, adversely affecting BCBSME’s market competitiveness if competitors imitated those business practices. In addition to the Quality Improvement Program Description, certain documents incorporated in the Application by reference and previously submitted to the Superintendent in connection with the Bureau Proceeding have been (1) designated by Anthem or BCBSME as confidential pursuant to the Protective Order issued by the Superintendent on October 19, 1999 ("Protective Order"), and/or (2) determined by the Superintendent to be confidential pursuant to the Protective Order. Incorporation of those documents by reference in the Application does not waive or modify the assertion of confidentiality made for such documents, and the Application is made with the understanding that you, as well as the Superintendent and the Bureau staff, will continue to treat all such documents as confidential pursuant to the Protective Order and free from disclosure under the FOAA unless the Superintendent issues a ruling otherwise. The enclosed materials also contain two bound copies of Anthem and BCBSME’s Initial Consolidated Filing of September 15, 1999. The Application contains many references to documents in the Initial Consolidated Filing. Therefore, we deliver the copies of the Initial Consolidated Filing solely in fulfillment of the requirement to provide you with a copy of the Application. As time is of the essence, I request that, should you find that the requirements of Section 4204(2-A)(B) are met, you provide your certification to the Superintendent as soon as possible. Please let me know if I can be of further assistance. Very truly yours,
James B. Zimpritch Enclosures
CERTIFICATE OF SERVICE The undersigned hereby certifies that on February 1, 2000 a copy of the letter to Kevin Concannon, Commissioner of the Department of Human Services, regarding Anthem Health Plans of Maine, Inc.’s Application for Certificate of Authority to Operate a Health Maintenance Organization was served by United States mail, first class postage prepaid, or, where indicated, by hand delivery, on each of the persons listed below. Robert S. Frank, Esq. Harvey & Frank Two City Center P.O. Box 126 Portland, Maine 04112 e-mail: frank@harveyfrank.com (Blue Cross/Blue Shield of Maine) Judith Chamberlain, Esq. State of Maine Department of the Attorney General 6 State House Station Augusta, Maine 04333-0006 e-mail: judy.chamberlain@state.me.us (Bureau of Insurance) William H. Laubenstein, Esq. State of Maine Department of the Attorney General 6 State House Station Augusta, Maine 04333-0006 e-mail: bill.laubenstein@state.me.us (Office of the Attorney General) Gregory A. Brodek, Esq. Duane, Morris & Heckscher, LLP 15 Columbia Street, 4th Floor Bangor, Maine 04401-6355 e-mail: gabrodek@duanemorris.com (Maine Health Alliance) Joseph P. Ditre, Esq. Consumer Health Law Program One Weston Court, Level One P.O. Box 2490 Augusta, Maine 04338-2490 e-mail: jditre@mainecahc.org (Consumers for Affordable Health Care Foundation/Coalition) Michele M. Garvin, Esq. Ropes & Gray One International Place Boston, Massachusetts 02110-2624 e-mail: Mgarvin@Ropesgray.com (Central Maine Healthcare Corporation; Central Maine Partners Health Plan) Robert I. Goldman Maine Council of Senior Citizens 27 Bowery Beach Road Cape Elizabeth, Maine 04107 e-mail: Rgoldma1@maine.rr.com (Maine Council of Senior Citizens) Bonnie Post Executive Director of the Maine Ambulatory Care Coalition P.O. Box 390 Manchester, Maine 04351 e-mail: bdpmacc@mint.net (Sacopee Valley Health Center, Regional Medical Center at Lubec, Eastport Health Care, Inc., and the Maine Ambulatory Care Coalition) John Dieffenbacher-Krall Executive Director Maine People’s Alliance 192 State Street Portland, Maine 04101 e-mail: MPA@gwi.net (Maine People’s Alliance) Gordon H. Smith, Esq. Maine Medical Association 30 Association Drive P.O. Box 190 Manchester, Maine 04351 e-mail: gsmith@ctel.net (Thomas D. Hayward, M.D., Maroulla S. Gleaton, M.D., And the Maine Medical Association)
Donald E. Quigley, Esq. General Counsel 465 Congress Street, Suite 600 Portland, Maine 04101-3537 e-mail: quigld@mail.mmc.org (Maine Medical Center) Sandra L. Parker, Esq. Attorney for MHA, Inc. 150 Capitol Street Augusta, Maine 04330 e-mail: sparker@themha.org (MHA, Inc.) Kellie P. Miller, M.S. Executive Director Maine Osteopathic Association 693 Western Avenue Manchester, Maine 04351 e-mail: meosteo@mint.net (Maine Osteopathic Association) Edward Miller Executive Director American Lung Association of Maine 122 State Street Augusta, Maine 04330 e-mail: emiller@mainelung.org (American Lung Association of Maine) DATED: February 1, 2000 _____________________________ James B. Zimpritch, Esq. Jeffrey M. White, Esq. Catherine R. Connors, Esq. PIERCE ATWOOD One Monument Square Portland, Maine 04101 (207) 791-1100 Attorneys for Anthem Insurance Companies, Inc.
Last Updated: July 16, 2008 |
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