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> Document 557 : INS 99-14 : Hearing Decision
STATE OF MAINE
Maine Medical Association ("MMA") hereby requests that the Superintendent enter an order requiring Anthem Insurance Companies, Inc. ("Anthem") to deliver to MMA certain documents related to Anthem’s plans to establish a New England operating region (the "East Region") and certain documents incorporated by reference or attached to and integral parts of Anthem provider contracts. While some requested documents related to the plans for Anthem East have been made available to MMA, other identified documents have not been made available. The documents requested and not made available to MMA are identified in the letter of March 14, 2000, from Michel A. LaFond, Sulloway & Hollis, P.L.L.C., counsel to MMA, to Jeffrey White, Pierce Atwood, counsel to Anthem, attached hereto as Exhibit 1. In response to discovery requests Anthem has made available, and MMA has secured, "forms" of certain provider agreements entered into between physicians and Anthem subsidiaries in the states of Connecticut, Indiana, Kentucky and Ohio. Upon review of such forms of provider agreements, counsel to MMA noted that certain attachments and manuals, cited and incorporated by reference into those provider agreements, were not included in the provider agreement materials made available by Anthem. Verbal and written requests for such attachments were made by Richard G. Korman of Sulloway & Hollis, P.L.L.C. on behalf of MMA to Christopher T. Roach, Pierce Atwood, and Mr. Roach responded with his letter of March 13, 2000 to Mr. Korman, a copy of which is attached hereto as Exhibit 2. The request of Mr. Korman was confirmed in Mr. Korman’s letter of March 14, 2000 to Mr. Roach, a copy of which is attached hereto as Exhibit 3. In his letter of March 14, Mr. Korman confirmed to Mr. Roach that MMA did not request a copy of every attachment and every manual referenced in every provider agreement, but requested only copies representative of Anthem provider contract attachments and manuals and copies of any other special or distinctive attachments or manual provisions. In the course of a telephone conference with Mr. Korman on March 15, Mr. Roach confirmed that Anthem is willing to provide copies of certain manuals but is not willing to provide copies of attachments. Mr. Roach advised that copies of the manuals would be made available immediately if MMA agreed to withdraw its request for attachments. Mr. Roach also stated that if MMA did not withdraw its request for attachments, the manuals would not be made available unless and until compelled by order of the Superintendent. Counsel to Anthem responded to the oral and written requests of counsel to MMA through a letter of Mr. Roach to Mr. LaFond, dated March 15, 2000, attached hereto as Exhibit 4. East Region Documents The East Region documents, which Anthem has characterized as "highly confidential" and for which Anthem has petitioned for restricted access, are identified in the separate sheet attached to Mr. LaFond’s letter of March 14, 2000 to Mr. White. Separately, in Applicants’ Objections to Intervenors Designations of Issues, Anthem has complained that the prospective organization and operation of the "East Region" is not relevant to this proceeding because Anthem is not required by statute to develop and provide any regional management systems or services. Anthem has asserted that a restriction on access to the designated East Region documents is appropriate because the documents reflect business planning and policies for the organization and provisions for regional management systems and services. While Anthem has complained that information about the organization and operation of the East Region is not relevant to this proceeding, Anthem has touted its financial resources, management information systems and management personnel and has asserted that those resources, systems and personnel are required by BCBSME to enable BCBSME to remain in existence and to be competitive in the managed care marketplace. Anthem has reported that its business plan, in part, is to grow in size, increase its strength and leverage in negotiating contracts with providers and transfer "substantial risk" downstream to providers. To the extent Anthem does transfer such substantial risk to providers, providers will have to be supported by adequate and appropriate management information systems and management personnel, and Anthem has suggested that such support would be available at the "East Region" level. The existence or non-existence of the East Region and the availability or non-availability of appropriate and adequate management information systems and management personnel support are extremely important to physician and other providers in their efforts to provide health care services to enrollees and manage adequately the substantial risk that Anthem is to transfer downstream. Without full information about the prospective organization and operation of the East Region, MMA, as an Intervenor in this proceeding, will not be able to participate meaningfully in a substantial and important portion of this review process and will not be able to represent its physician members adequately. Provider Agreement Attachments and Referenced Documents MMA has requested copies of "representative" attachments and referenced documents identified in provider contract documents that have been made available to MMA. While Provider Manuals can be bulky, provider contract attachments generally span no more than a few pages. Counsel to Anthem has advised that Anthem would be willing to provide copies of the bulky provider manuals but is not willing to provide copies of the attachments, which generally are not bulky. The documents attached to or incorporated by reference into provider contracts generally identify material and important provisions governing the relationship between the contracting parties. One cannot determine the nature and scope of provider contract obligations without having access to the attachments and other referenced documents. Provider contracts govern the relationships between providers and health plans, and the Superintendent has recognized, in his granting Intervenor status to providers, the importance of provider contracts to both providers and health plans. The provider contracts negotiated by Anthem or its affiliates with providers of other acquired Blue Cross Blue Shield plans will provide the most credible evidence of the experience Maine providers will have in contracting with Anthem BCBSME. Anthem’s Reasons for Refusing to Deliver Requested Documents Several reasons for Anthem’s refusal to deliver requested documents are set forth in the letter of Mr. Roach to Mr. LaFond, dated March 15, 2000. First, Mr. Roach argues that none of the documents requested by MMA were requested by MMA pursuant to a discovery request. Moreover, Mr. Roach asserts that some of the documents were made available in response to discovery requests of the Attorney General and the Consumers for Affordable Healthcare Coalition. Mr. Roach argues that MMA does not have standing to request any "additional information" related to these documents because MMA did not make the initial request for these documents. MMA does not agree with Mr. Roach. As recognized in Mr. Roach’s letter of March 13, Exhibit 2, MMA made its discovery request for provider contracts on February 4, 2000. We disagree with the March 13 suggestion of Mr. Roach that we are "a month late" and foreclosed from requesting the attachments and documents incorporated by reference in the requested provider contracts. The suggestion that a party should forfeit a right to access documents, because the party did not quickly note that portions of requested documents were withheld, is pure gamesmanship, and such suggestions and actions should not be tolerated. As outlined above, the requested attachments and manuals are integral parts of the requested provider contracts. While we do agree with Mr. Roach that we did not request the "East Region" documents, we disagree with the suggestion that MMA has no right to request delivery of documents that are the subject of discovery requests of others. If one followed the logic of Mr. Roach’s assertion, one would have to conclude that each party would have to request separately every document to be discovered in order to assure a right of access. Moreover, there is no basis for the suggestion of Mr. Roach that only the requesting party has the right to complain that the materials provided are incomplete or do not satisfy the discovery request. Mr. Roach seems to suggest, again, that if a party does not spot and complain immediately about incomplete discovery production and documents withheld, the party loses the right to demand completion of delivery of requested documents. He seems to suggest that the appropriate discovery production standard is "find omissions right away or you lose." Second, Mr. Roach asserts that many of the documents have been available since January 24, 2000, seven weeks before "your present discovery request", and "Anthem should not have the burden of gathering any additional documents in the face of this delay." The assertion is not valid because timely requests for all the documents were made by MMA, the Attorney General or others, and Anthem simply did not produce the requested documents. The provider contracts were requested by MMA, and Anthem has not made available the requested attachments and manuals, either directly to MMA or to the document repository. The "East Region" documents were requested by the Attorney General, and the Attorney General’s request was for all documents. All documents concerning the East Region have not been produced, and Anthem has withheld from MMA documents identified by Anthem as "highly confidential." The Superintendent has not entered any order recognizing any "highly confidential" nature of those documents justifying unilateral withholding of the documents by Anthem. Third, Mr. Roach asserts that discovery obligations do not extend to any and all documents "mentioned" in any document previously produced. While Mr. Roach’s assertion might be valid in some circumstances, it is not valid here to the extent that requested attachments and manuals are integral parts of the documents previously produced and to the extent that the discovery requests for "East Region"documents was a request for all documents and the documents withheld are relevant "East Region" documents. Finally, Mr. Roach argues that Anthem has no discovery obligation to provide "additional documents that reflect follow-up activities." The suggestion is that Anthem does not have a continuing obligation to supplement and update discovery responses as subsequent materials become available. MMA is not aware that any exemption has been provided to Anthem relieving Anthem from the general discovery requirement to supplement discovery responses when additional information and materials have become available. For the reasons set forth above, MMA respectfully requests the Superintendent to order Anthem to make available to MMA the documents referenced and requested in the correspondence of Mr. LaFond and Mr. Korman.
Dated: March 17, 2000 Michel A. LaFond Sulloway & Hollis, P.L.L.C. Attorney for Maine Medical Association 9 Capitol Street, Box 1256 Concord, New Hampshire 03302-1256 603-224-2341 603-226-2405 - fax mal@sulloway.com
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on March 17, 2000 a copy of Maine Medical Association’s Motion to Compel Production of Documents was served via United States mail, first class postage prepaid, on each of the persons listed below. Robert S. Frank, Esq. Michele M. Garvin, Esquire Harvey & Frank Ropes & Gray Two City Center One International Place P.O. Box 126 Boston, Massachusetts 02110-2624 Portland, Maine 04112 e-mail: Mgarvin@Ropesgray.com fax - 207-775-5639 (Central Maine Healthcare Corporation; e_mail: frank@harveyfrank.com Central Maine Partners Health Plan) (Blue Cross/Blue Shield of Maine) Judith Chamberlain, Esq. Robert I. Goldman State of Maine Maine Counsel of Senior Citizens Department of the Attorney General 27 Bowery Beach Road 6 State House Station Cape Elizabeth, Maine 04107 Augusta, Maine 04333_0006 e-mail: Rgoldma1@maine.rr.com e_mail: judy.chamberlain@state.me.us (Maine Council of Senior Citizens) (Bureau of Insurance) Bonnie Post William H. Laubenstein, Esq. Executive Director of the Maine Ambulatory State of Maine Care Coalition Department of the Attorney General P. O. Box 390 6 State House Station Manchester, Maine 04351 Augusta, Maine 04333_0006 e-mail: bdpmacc@mint.net e_mail:bill.laubenstein@state.me.us (Sacopee Valley Health Center, Regional (Office of the Attorney General) Medical Center at Lubec, Eastport Health Care, Inc., and the Maine Ambulatory Gregory A. Brodek, Esq. Care Coalition) Duane, Morris & Heckscher, LLP 15 Columbia Street, 4th Floor John Dieffenbacher-Krall Bangor, Maine 04401_6355 Executive Director e_mail: gabrodek@duanemorris.com Maine People’s Alliance (Maine Health Alliance) 192 State Street Portland, Maine 04101 e-mail: MPA@gwi.net (Maine People’s Alliance) Joseph P. Ditre, Esq. Gordon H. Smith, Esquire Consumer Health Law Program Maine Medical Association One Weston Court, Level One 30 Association Drive P.O. Box 2490 P. O. Box 190 e_mail: jditre@mainecahc.org Manchester, Maine 04351 (Consumers for Affordable Health Care e-mail: gsmith@ctel.net Foundation/Coalition) (Thomas D. Hayward, M.D., Maroulla S. Gleaton, M.D. and the Donald E. Quigley, Esquire Maine Medical Association) General Counsel 465 Congress Street, Suite 600 mailto:Mgarvin@Ropesgray.commailto:Rgoldma1@maine.rr.commailto:bdpmacc@mint.netmailto:MPA@gwi.netmailto:gsmith@ctel.netKellie P. Miller, M.S. Portland Maine 04101_3537 Executive Director e_mail: quigld@mail.mmc.org Maine Osteopathic Association (Maine Medical Center) 693 Western Avenue Manchester, Maine 04351 Sandra L. Parker, Esq. e-mail: meosteo@mint.net Attorney for MHA, Inc. (Maine Osteopathic Association) 150 Capitol Street Augusta, Maine 04330 Edward Miller e_mail: sparker@themha.org Executive Director (MHA, Inc.) American Lung Association of Maine 122 State Street James B. Zimpritch, Esquire Augusta, Maine 04330 Jeffrey M. White, Esquire e-mail: emiller@mainlung.org Catherine R. Connors, Esquire Pierce Atwood mailto:emiller@mainlung.org One Monument Squaremailto:meosteo@mint.netmailto:emiller@mainelung.orgPortland, Maine 04101 (207) 791_1100 (Anthem Insurance Companies, Inc.)
Michel A. LaFond, #8932 Sulloway & Hollis, P.L.L.C. 9 Capitol Street, Box 1256 Concord, New Hampshire 03302-1256 (603) 224-2341 e-mail: mal@sulloway.com Attorneys for Maine Medical Association
Last Updated: August 22, 2012 |
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