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> Document 53 : INS 99-14 : Hearing Decision
STATE OF MAINE
Now comes Consumers for Affordable Health Care (CAHC), by and through its attorneys, with its reply to the Applicant’s Response to Pending Motions to Intervene. I. Introduction Applicants’ threshold attack on all seven intervenors’ pending motions to intervene, regardless of the claims or interests asserted therein, is not based on law and fact but rather relies on reasons of "openness" and "efficiency". Applicants assert that all intervenors should be granted intervention status on a permissive basis. Applicants make no effort to argue the law in support of their position with the exception of two footnotes. By failing to make legal arguments in their own "Response to Pending Motions to Intervene", Applicants invite unnecessary and protracted paperwork. Applicants even request another opportunity to individually brief each intervenor’s status if their arguments are wrong. CAHC believes that such time and paperwork would be contrary to the Superintendent’s goals of efficiency and openness with which the "Applicants firmly agree." The Applicants’ primary reliance on one footnoted case, Central Maine Power v. Public Utilities Commission (hereafter "Central Maine Power I") is misplaced and, in fact, supports CAHC’s motion to intervene as a matter of right. II. Argument CAHC’s motion to intervene provides ample support, including five affidavits from individual and group Blue Cross and Blue Shield of Maine (BCBSME) subscribers, demonstrating how this proceeding will directly and substantially affect the interests of its members. CAHC provided documents with its motion that demonstrate the direct and substantial affect that the proceeding will have on its members as subscribers in terms of the following which include, but are not limited to, rates, benefits and coverage, claims processing, utilization review denials, underwriting practices, potential premium increases, ability to pay claims, and grievance and appeals procedures among others. CAHC also provided information demonstrating the direct and substantial impact this proceeding will have on medically uninsured, underinsured and underserved persons who are individual members of CAHC or who are members of CAHC’s member organizations. Some agencies have looked to standing requirements used by the courts for guidance in determining administrative intervention status. If the Bureau of Insurance were to apply such judicial standing requirements, CAHC believes that it would meet them. An organization has standing to sue on behalf of its members when: 1) its members would otherwise have standing to sue in their own right; 2) the interests it seeks to protect are germane to the organization’s purpose; and 3) neither the claim asserted not the relief requested requires the participation of individuals members in the lawsuit. Maine Association of Interdependent Neighborhoods v. Petit, citing Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977) The MAIN v. Petit court granted standing to the Maine Association of Interdependent Neighborhoods, a nonprofit organization composed of eight affiliated groups with a total of over 1,100 members, even though only one of its members was adversely affected. Contrary to the Applicants’ position, both the Maine Administrative Procedures Act §9054(1), incorporated into Bureau of Insurance Rule Chapter 350 §9, and prevailing case law provide individuals and organizations acting on behalf of one of its members with intervenor status as a matter of right. Moreover, Applicants wrongfully rely on Central Maine Power I in which the court denied standing to the Maine Oil Dealers Association (MODA) in the court’s judicial review of the PUC decision. MODA had been one of numerous intervenors, which included one individual rate payer, the attorney general and other rate payers, in a rate regulation proceeding before the Public Utilities Commission (PUC). MODA alleged that it represented the interests of residential rate payers although the position it put forward in its pleadings was that CMP’s rates for residential customers were too low. The court disagreed with MODA’s contention that it represented the interests of residential rate payers. While the public utilities statute protects rate payers’ interests, the court found that MODA was a competitor of Central Maine Power. As a competitor, the court denied MODA standing for judicial review asserting its interests were outside those protected by the statute and the statute’s objectives could be realized without intervention by "private entities such as MODA." In addition, Applicants fail to cite the companion case to Central Maine Power I which further supports CAHC’s motion to intervene as a matter of right. In the 1979 successor case to Central Maine Power I, hereafter referred to as Central Maine Power II, the court upheld MODA’s intervention because MODA claimed an interest as an industrial rate payer. The court stated that it would not deny intervention to MODA because of its status as a competitor because to do so "would be to deprive them of a right they enjoy by virtue of their status as ratepayers solely because of a secondary status they possess in an area wholly outside the concern of the Commission." III. Conclusion CAHC has provided ample evidence demonstrating that its individual and organizational members will be directly and substantially affected by this proceeding to support its motion to intervene as a matter of right. Applicants’ reliance on Central Maine Power is misplaced and actually supports CAHC’s motion to intervene as a matter of right. Applicants’ attempt to elevate a typographical error in the Superintendent’s procedural order to the force of law - contrary to the statute governing intervention in administrative proceedings, the Bureau’s rule implementing the statute, and prevailing case law - is unfortunate and in error. Finally, Applicants’ failure to make legal arguments in the body of their own "Response to Pending Motions to Intervene" and coupled with a request to individually brief each intervention motion should the position they asserted be wrong is unprecedented, unnecessarily burdensome and would frustrate the Superintendent’s desire for efficiency. Briefing each intervenor’s status, with potential reply briefs, could take well beyond the deadline for applications to intervene on December 10th. CAHC asks that its motion to intervene as a matter of right be granted as requested therein. Respectfully submitted, __________________________ Joseph Ditre, Esq. Consumer Health Law Program A Program of CAHC Foundation One Weston Court, Level One P.O. Box 2490 Augusta, ME 04338-2490 Ph: (207) 622-7083 Fx: (207) 622-7077 Email: jditre@mainecahc.org _________________________ Patrick Ende, Esq. Maine Equal Justice Partners 65 State Street, 2nd Floor P.O. Box 5347 Augusta, ME 04332-5347 Ph: 207-626-7058 Fx: 207-621-8148 Email: pende@mejp.org Pc: Judith Shaw Chamberlain, Esq., AAG Linda Pistner, Esq., Deputy Chief Attorney General William H. Laubenstein, III, Esq., AAG James B. Zimpritch, Esq., Pierce Atwood Robert S. Frank, Esq., Harvey and Frank
CERTIFICATE OF SERVICE The undersigned hereby certifies that on November 12, 1999, a copy of CAHC's reply to applicants' response to pending motions to intervene was served by United States mail, first class postage prepaid, on each of the persons listed below.
Dated: November 12, 1999 Joseph P. Ditre, Esq. Consumer Health Law Program A Program of CAHC Foundation One Weston Court, Level One P.O. Box 2490 Augusta, ME 04338-2490 Ph: (207)622-7083/ Fx: (207)622-7077 Email: jditre@mainecahc.org Patrick Ende, Esq. Maine Equal Justice Partners 65 State Street, 2nd floor P.O. Box 5347 Augusta, ME Ph: (207)626-7058/Fx: (207)621-8148 Email: pende@mejp.org Last Updated: March 27, 2012 |
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