*1
ANTHEM HEALTH PLANS MAINE,
OF INC. OF INSURANCE.
SUPERINTENDENT of Maine.
Supreme Judicial Court
Argued: Nov. April
Decided: *2 Roach, (1) Esq. (orally), T. Christopher year even. Because which the Connors, Esq., R. Lueus A. Rit- Catherine challenged passed, rates were effective has chie, Dunlap, Esq., Joshua D. Pierce Esq., (2) effect, gone and new rates have into a LLP, Portland, ME, Atwood for Anthem favorable decision on the merits could not Maine, Health Plans of Inc. provide any Anthem with effective finan- (3) relief, cial and both federal and state Mills, General, Attorney Janet T. Thom- transition, laws are in we determine that Sturtevant, Jr., Atty. Asst. Gen. as C. controversy vitality has lost its and Black, Gen., Atty. L. (orally), Andrew Asst. that there exists no basis for the Court to General, Attorney Augusta, Office of the appeal address Anthem’s from the decision ME, for the of Insurance. entered the Business and Consumer Brown, Burke, Esq., Rufus E. Brown & C.J.), Docket (Humphrey, pursuant Portland, ME, Noonan, Kay Esq., General 80C, M.R. declining Civ. P. to set aside the Counsel, MO, City, Kansas for amicus cu- setting rаte for 2009. riae National Association of Insurance We therefore dismiss the as moot. Commissioners. Ditré, Joseph Esq., Poliquin P. Mia S. I. BACKGROUND
Pross, Irwin, L. Esq., Esq., Andrea Con- Care, sumers for Affordable Health Au- Maine, Anthem Health Plans of ME, gusta, for amicus curiae Consumers Inc., Anthem Blue Cross and Blue d/b/a for Affordable Health Carе Coalition. Shield, appeals from a affirming Pierce, DeTroy, Peter Esq., Russell a decision of the of Insur- Norman, Esq., LLC, & DeTroy, Hanson (1) determining ance pro- Anthem’s Portland, ME, for amicus curiae Maine posed average rate appli- increase of 18.5% State Chamber of Commerce. cable to its individual health insurance products, which pro- contained built-in SAUFLEY, C.J., Panel: and 3%, jected profit margin and risk of was ALEXANDER, LEVY, SILVER, MEAD, (2) discriminatory, excessive and and indi- GORMAN, JABAR, and JJ. cating that an average 10.9% rate increase SAUFLEY, C.J., Majority: containing projected profit margin a 0% ALEXANDER, SILVER, GORMAN, and approved. would be Anthem contends JABAR, JJ. that, 0%, setting at Superintendent’s decision eliminated An- LEVY, J., MEAD, Dissent: J. opportunity them’s to earn a ... “not inad- SAUFLEY, C.J. equate” or fair and reasonable rate of re- turn, which, Anthem, according to must Maine, Anthem Health Plans of include a profit. Accordingly, reasonable Inc., аsks us to determine whether Superinten- Anthem maintains that Maine Superintendent may of Insurance dent’s decision violates 24-A establish rates for individual health insur- (2010)1 products pursuant ance to which and the States the insur- United profit, er will not make a but will break Maine Constitutions. provides every
1. The statutе
case
individu-
of risks and
modification
formula
policies
"[e]very
al health insurance
in-
proposes
or classification that it
to use in
approval
superinten-
surer shall file for
connection with individual health insurance
rate,
formula,
2736(1)
every
rating
policies[.]”
dent
classification
24-A M.R.S.
Daily Sun v. Sch.
(quoting
for review 1081
Lewiston
petition
filed a
Anthem
Admin. Dist. No.
Superior
action
agency
final
determining
“When
M.R.
P.
and 5
Civ.
80C
pursuant
*3
moot,
whether a case is
we examine
(2010), requesting that the
§ 11002
practical
‘whether there remain sufficient
decision be vacated
Superintendent’s
the resolution of
flowing
[the]
effects
from
of a rate
approval
remanded for
the case
of limit
justify
application
to
litigation
profit margin.
a
include
3%
that would
”
(quoting
Id.
judicial
ed
resources.’
Lewi
to the Business
The
was transferred
case
¶
143, 14,
Sun, 1999 ME
Daily
ston
The court found
Docket.
and Consumer
1243).
A.2d аt
statutory infirmity and
no
constitutional
decision.
affirmed
it can-
acknowledges
Anthem
[¶ 6]
appeal.2
timely
Anthem
filed this
any financial relief in this case.
not obtain
over,
year
The rate
and there exists no
pending,
the case was
While
[¶ 4]
authority
higher
for Anthem to recover
2010, came
year,
the next
under
rates for
year.
from
for that
rates
the subscribers
An
Superintendent.
consideration
Nonetheless, Anthem contends that
a rate
granted
them was
increase
Superinten-
case is not moot because the
profit margin.
includes a 0.5%
Anthem
acknowledged
not
that she
dent hаs
erred
Individual
Blue
& Blue Shield 2010
Cross
failing
provide
profit margin.
in
a
It
HealthChoice,
Filing
Rate
Health
essentially advisory opinion
seeks an
from
Basic,
and Lumenos
Choice Standard
provide guidance
to the Su-
Court
Products,
Directed Health Plan
Consumer
in the future.
fur-
perintendent
Anthem
INS-10-1000,
No.
Decision and Order
controversy
ther
that the
remains
argues
(Me.
2,
Sept.
That rate
Bur. of Ins.
it
challenged
live because
has
the 2010
went into
on October
2010.3
effect
basis,
though
rates on the same
even
Superintendent
allowed a
mar-
0.5%
II. DISCUSSION
gin in the 2010 rates.4
Because
2009 rate is
effect, we
a
longer
Dеspite
continuing
no
in
must address
contro
rates,
versy
“An
the 2010
a
whether the case is moot.
issue is
over
decision
this
when there
‘real matter
the 2009
would re
involving
deemed to be ‘moot’
is no
rates
controversy, admitting
practical
Superin
sult in no
effect. The
substantial
a
specific
through
рrofit margin,
relief
of conclusivetendent has allowed
albeit
”
0.5%,
year,
only
char
acter.’
Smith v.
for the 2010 rate
thus the
Hannaford
¶
Co.,
8,ME
direction that Anthem seeks from the
Bros.
sion;
Gling
then reviews the
the Maine State Chamber of Commerce
filing
"to determine whether such
meets the
support
filed an amicus brief in
of Anthem.
excessive,
requirements that rates not be
in-
”
unfairly discriminatory!.]
adequate
at
Id.
Although
part
appeal,
record on
2736(2).
While the
did not
increase,
acknowledge
parties
the rate
increase,
proposed
approve Anthem's
18.5%
judicial
and the Cоurt takes
notice of the
average
approve
she did
an
rate increase for
2, 2010,
Superintendent’s September
decision
products
pursu-
Anthem's individual
10.9%
and order.
ant to 24-A M.R.S. 2736-B
sought
stay
and received a
Anthem
on its
2.The
of Insurance Com-
National Association
rates,
judicial
pеtition for
review on the 2010
the Consumers for Affordable
missioners and
Superintendent's objec-
apparently
over
Health Care Coalition filed amicus curiae
tion,
support
Superintendent's
pending
appeal.
in this
briefs in
deci-
decision
(3)the
necessary
is not
for the 2010 rates.5
issues are
of repetition
Moreover, even if we were to find in An
evade
but
review because of their fleet-
Superinten
vacate the
them’s favor and
or determinate nature.
decision,
dent’s
Anthem has no
au
Smith,
Liberties Union So. ¶¶ 10-11, Although recognize we cycli- [¶ 10] the (holding appeal summary from a context, cal nature of ratemaking in this declaring process for consolidation of vot we are not convinced that precise the is- special districts for a illegal eleсtion is presented sues in this case will recur. The long moot because election was over and Superintendent’s decision itself recognizes recur). likely circumstances were not that the 2009 year presented rate “unique economic resulting situation in ex- Anticipating that barrier [¶ 8] treme financial hardship for subscribers.” review, obtaining appellate Anthem con addition, In the approved by 2010 rates tends that the Court should nevertheless small, include a but none- decide the case because it fits within one of positive, theless profit margin. exceptions tо the mootness doctrine. There are three recognized exceptions to Regarding question [¶ 11] may the doctrine that justify addressing concern,” “great public assuming even the merits of an appeal: otherwise moot public has a substantial interest rates set the Superintendеnt, these are
(1) sufficient collateral consequences judicial circumstances which restraint is will result from the determination of the appropriate. questions presented justify so as to re-
lief; level, At the national following (2) questions contains the enactment of the Patient Protection that, great public Act, concern in the interest and Affordable public Care a shift in of providing guidance future to the bar policy regarding health care insurance has address; public, may and the we been following discussed the recent elec- express oрinion 5. We factually adequate. no as to whether a 0.5% legally would be considered altered, amended, Maine, or eliminat- may Governor and a well be a new tion.6 In upcoming highly months. In this changed Legislature have ed substantially law, weigh policy judicial in on the restraint regulated chаnce to area of yet had a session, Now presented. issues us to conclude that the controver- counsels ambiguity Legislature could eliminate parties to this sy brought appeal through given rise to this that has to the moot- exception moot and that no simple insertion of the definition applies ness doctrine here. See, e.g., ... 24- phrase inadequate.” “not entry is: (2010).7 A signal the All of these events Appeal dismissed. change reg- potential for substantial health in-
ulatory
governing
environment
LEVY, J.,
MEAD, J., joins,
with whom
rate-setting
Decisions on
surance rates.
dissenting.
processes, along
with
standards
implementing
redesign of the mechanisms
moot,
I
Although technically
*5
care,
health
should
public policy regarding
permit
appeal
proceed
would
this
be
by
the
be arrived at
first instance
the
presented
cause
issue
falls within
Legislature.
Governor and the Mаine
recognized exception to the mootness doc
The
potential
change
the
for
in trine.
core
issues this
Given
approv
arise from an annual rate
regulation
presents
at both the federal
healthcare
levels,
likely
al
are
if not
precise
pre-
process,
repeated
and State
issues
be
resolved,
“likely
to re-
will
evade re
consistently
sented in this case are
and
it in
for
of their
public
“fleeting
cur.” Nor is
interest
view because
determi
decide,
mak- nate nature.”
v.
Daily
this Court to
for future rate
Lewiston
Sun
Sch.
¶
cases,
43,
143, 17,
ing
meaning
of a statute that Admin. Dist. No.
1999 ME
(Hudson,
Virginia
6.
the Patient Protection
Both the Eastern District of
On March
(Vin
(the Act),
J.)
Care Act
Pub.L. No.
and the Northern District of Florida
Affordable
son, J.)
thereof,
111-148,
(2010),
parts
by
have declared the Act or
124 Stat. 119
as amended
mandate,
specifically the insurance
unconsti
the Heаlth Care and Education Reconciliation
Cuccinelli,
F.Supp.2d
2010,
111-152,
tutional.
728
768
Act of
Pub.L. No.
124 Stat.
-
filed,
(E.D.Va.2010), petition for cert.
(2010), went into effect. The Act man
1029
10-1014);
-
8,
(U.S.
2011) (No.
U.S.L.W.
Feb.
changes
group
dates
both individual and
Bondi, - F.Supp.2d -,
2011 U.S.
plans
offered
insurers that are intended to
(N.D.Fla.
31, 2011).
Dist. LEXIS 8822
Jan.
increase access to health insurance
upheld
At least two other courts have
the Act.
Many
changes
health care.
will not
Obama,
See Thomas More Law Ctr. v.
720
provi
become effective until 2014. The Act's
(E.D.Mich.2010);
F.Supp.2d
Liberty
882
changed
repealed
be
sions could
before
Univ.,
Geithner,
F.Supp.2d
Inc. v.
753
611
varying
thеir
effective dates.
In addition to
(W.D.Va.2010).
delay,
the time
several lawsuits have been
validity
challenging
provi
filed
of certain
(2010), applicable
24-A
7. Title
M.R.S. 2382
Act, including
sions of the
the insurance man
insurance,
compensation
pro-
to workers’
See, e.g., Virginia
rel.
date.
ex
Cuccinelli
vides:
Sebelius,
(E.D.
3:10CV188-HEH
Va. filed
No.
23, 2010);
Mar.
ex rel.
v. U.S.
Florida
Bondi
Inadequate rates. A
not inad-
rate is
Servs.,
Dep’t
No.
Health & Human
3:10-cv-
equate
project-
unless insufficient to sustain
23,
(N.D.
00091-RV-EMT
Fla. filed Mar.
expenses
ed losses and
and the use of the
2010); Goudy-Bachman
Dep’t
tendency
monop-
v. U.S.
rate has had a
to create
Servs.,
1:10-CV-763,
or,
continued,
oly
Health & Human
No.
if
will tend to create a
9,
(M.D.
April
monopoly
Pa.
will cause seri-
rates that must return, including
include a reasonable In profit. setting
reasonable her decision rates, treated the
adequacy requirement solvency as a stan-