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Maine.gov > PFR Home > Insurance Regulation > Hearing Decision Index > Document 343 : INS 99-14 : Hearing Decision
STATE OF MAINE
By motion dated December 17, 1999, Associated Hospital Service, d/b/a Blue Cross Blue Shield of Maine ("BCBSME"), requested the issuance of a supplemental protective order for limited portions of its response to the Superintendents Second Discovery Request. BCBSME asks that a supplemental protective order be issued that establishes procedures for disclosure of certain specific documents different from the procedures set forth in the Superintendents Protective Order of October 18, 1999.
Specifically, BCBSME asks that salary and compensation information, as well as other sensitive information (bank account numbers, business and financial documents of health care affiliates, financial terms of contracts, and customer specific pricing and account information) be maintained as confidential. Access to the information, other than salary and compensation information, would be restricted to those who have executed confidentiality agreements and have established the need for access in order to prepare and present cases before the Superintendent. Additionally, BCBSME asserts that an additional limitation should be placed upon the documents relating to the affiliation proposals submitted to BCBSME. Blue Cross asks that Anthem, other than outside counsel for Anthem, be prohibited from accessing the affiliation documents. Lastly, Blue Cross seeks to preclude Central Maine Partners Health Plan and Central Maine Healthcare Corporation from gaining access to business plan and financial information regarding Maine Partners Health Plan.
No opposition to the motion was filed by any party. A supplemental memorandum in support of its motion was filed by BCBSME on or about January 12, 2000. Ropes and Gray, counsel for Central Maine Partners Health Plan ("CMPHP") and Central Maine Healthcare Corporation ("CMHC") filed a position statement on January 20, 2000. Although CMPHP and CMHC did not object to the motion, they sought to clarify their position that, to the extent any intervenor is granted access to confidential documents, CMPHP and CMHC should be permitted equal access.
Argument on BCBSMEs motion was taken by the Superintendent on January 21, 2000. As to the salary and compensation information, BCBSME reiterated its position that no access to this information should be permitted absent a specific showing of need, particularly as to historical data. Blue Cross relies on the fact that the Bureau of Insurance has not required it to disclose salary information in the past. When asked whether the fact Blue Cross is a public charity mattered, counsel noted that unlike 501(c)(3) companies which must disclose salary information to the public, Blue Cross is subject to different federal tax treatment and is not subject to the disclosure requirements.
Blue Cross also stated its view that the remaining information should not be disclosed unless a party can establish the need for the information to present its case. When asked whether a process placing the burden on a party to establish the need for access might prove onerous, counsel for Blue Cross indicated he anticipated the parties would discuss the need for access and work out the details among themselves. Further, he stated a desire to have all parties who have executed a confidentiality agreement review descriptions of the material and request access by a set date.
Upon consideration of the types of information for which confidential treatment is requested and the interests of the general public, all of the documents, with the exception of salary and compensation information, filed as part of the Motion for Supplemental Protective Order, are accepted as confidential. Further, any party who has executed a confidentiality agreement may seek access to these particular documents through negotiation with Blue Cross. In the event an agreement cannot be reached, the Intervenor must immediately file a motion for access with the Superintendent explaining in detail why access is necessary in order for the Intervenor to prepare and present its case before the Superintendent. All requests for access must be made to BCBSME no later than February 23, 2000. Any motions for access must be filed with the Superintendent no later than February 28, 2000.
The October 18, 1999 Protective Order issued by the Superintendent makes it clear that only counsel of record and consultants for intervenors may be granted access to confidential information. The companies or individuals represented by counsel are not entitled to access. Accordingly, Blue Cross request to deny access to CMPHP and CMHC to certain financial information of MPHP is DENIED. CMPHP and CMHC shall have the same access to information as all other intervenors who have executed confidentiality agreements.
Terms of Affiliation Proposals
The affiliation proposals shall be confidential, as well. Access is limited as stated above with requests for access having to be filed with Blue Cross no later than February 25, 2000 and any necessary motions be filed with the Superintendent no later than March 3, 2000. The one exception is access by Anthem. Access shall be limited to outside local counsel for Anthem. Counsel for Blue Cross and outside local counsel for Anthem shall draft, execute and file with the Superintendent an appropriate confidentiality agreement on or before February 23, 2000.
Salaries and Compensation
Counsel for BCBS, both in the supplemental memorandum supporting Blue Cross motion and in his oral argument, noted that the Bureau of Insurance does not require insurance companies, including Blue Cross, to file the salary and compensation information required by the National Association of Insurance Commissioners (NAIC) to be included on the annual statements filed each March. Rather, the Bureau of Insurance has permitted insurance companies and Blue Cross to maintain the information on site provided the companies agree to provide access to the Bureau upon request of the Superintendent or his staff.
The requirement by the NAIC for the inclusion of a salary and compensation schedule with the annual statement was initiated in 1993. At that time, BCBSME, while a nonprofit medical and hospital service organization, had not been declared charitable by the Maine Legislature. It was not until 1997, by the enactment of PL 1997, c. 344 and confirmation by the Superior Court, that the charitable status of BCBSME definitively was established. Given its obligation to the public and its status as a public charity, BCBSME has greater accountability to the people of Maine. Thus, the Superintendent finds the salaries and compensation for those executives which would be required to be reported on the NAIC annual statement are subject to public disclosure for the years 1997, 1998, 1999 and, as of March 1, for the year 2000. The remaining information set forth in the spreadsheet filed by Blue Cross shall remain confidential and subject to the guidelines set forth above. Blue Cross is required to file a redacted version of the salary and compensation spreadsheet within five days of the date of this Order.
Confidential treatment is being afforded the documents identified in this Order due to their proprietary nature and value as a trade secret and, are, therefore, exempt from the provisions of the Freedom of Access Act as being within the scope of privilege against discovery. 1 M.R.S.A § 402(3)(B). Dissemination of the confidential information identified herein is governed by the terms of this Order and, to the extent they do not conflict with this Order, the terms of the Protective Order issued October 18, 1999. Please note that reference in any discovery response in this proceeding to a document that has been accepted as confidential does not alter the confidential status of that document.
PER ORDER OF THE SUPERINTENDENT OF INSURANCE
Last Updated: August 22, 2012
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