Another month, another stack of paper. As expected, the lawyers representing association health plans (AHP) had something to say about the Insurance Commissioner’s request for a delay in providing briefs in the remaining AHP administrative law cases. For those looking for some light summer reading (relax, these are short responses), here are the reactions to the Commissioner’s request:
A few of these responses relate to more than one AHP. For example, the Davis Wright law firm represents several AHPs and therefore the Business Health Trust response above addresses more than one AHP such as the Biotechnology and the Clean Technology associations.
The responses fall into one of three categories: “Sure, why not.” “Oh please, not again.” “You just don’t get it!” The first category can be found embedded in Premera’s response.
“Premera will not oppose the stay, although Premera does not believe there is any ambiguity in this tribunal’s decision related to WCIF and is not aware of any reason that would prevent the OIC from approving Premera’s remaining plans immediately, given that all the plans at issue here were rated in a manner identical to WCIF.”
Similarly, Cambia states, “While Cambia does not believe that a 60-day stay is necessary, it nevertheless is amenable to a slight modification of the Parties’ briefing schedule.”
In the second category, you can find the Moda response.
“Finally, a stay of the briefing In this matter would serve no purpose. The deadline for the parties to file their dispositive motions is October 9, 2015, with opposition papers due on October 30, 2015, and replies due on November 6, 2015. All of those dates are beyond the 60-day time period during which the OIC requests a stay. Accordingly, no stay is required.”
The third category falls into the “captain obvious” camp and asks the judge to remind the Commissioner to read the judge’s order granting summary judgment to BIAW, WCIF and MBA. Here is the WCIF apoplectic response:
“WCIF’s motion for summary judgment expressly requested that the OIC’s disapprovals of the 2014 filings at issue (“the Filings”) “be overturned and that the 2014 rate and form Filings be approved by the OIC.” (WCIF’s Motion for Summary Judgment, p. 20). The Order granted WClF’s motion in its entirety. It is WCIF’s understanding that the Order therefore requires the OIC to overturn its disapprovals of the Filings and to immediately approve them. Nothing in the Order indicated that this matter has instead been remanded to the OIC.
To the extent the OIC’s request for a stay of the (non-existent) briefing schedule was intended to extend to a stay of the effect of the Order itself, the OlC has failed to articulate any reasonable basis for such a request. The OIC’s approval of the 2014 Filings has already been unnecessarily delayed by the OIC’s baseless rejections; no farther delay in approval of the Filings is justified.”
On August 4th, Judge Finkle issued an order giving everyone, except the Commissioner, what they wanted. These cases well might drag on through the Fall. Here’s the new calendar:
WCIF, No. 15-0034. No modification.
Moda, No. 15-0063. No modification.
Cambia, No. 15-0111 and 15-0114. Dispositive Motions due October 9.
Washington State Farm Bureau, No. 15-0111. Dispositive Motions due October 9.
BIAW, No. 15-0075, Cambia, No. 15-0071, 15-0078, 15-0084; MBA, No. 15-0062; NMTA, No. 15-0079. No modification.
Premera, No. 0113. Dispositive Motions due October 9.
BHT, No. 15-0133. No modification. (Approved revised schedule unchanged.)
AIMS, No. 15-0064. No modification.
Washington Biotechnology Biomedical Association, No. 15-0107. No modification.
Northwest Financial Association, No. 15-0087. No modification.
Washington Clean Technology, No. 15-0110. No modification.
As to the whole “reading thing,” the judge made it clear his ruling meant that the MBA Trust, BIAW Trust, NMTA Trust and its insurer Cambia had their rates and forms approved for the year 2014. Moreover, the judge noted that the OIC had not even requested a reconsideration of the filings in its opposition to summary judgment. The OIC had simply expected to win.
Here is the judge’s ruling on the matter:
“In its summary judgment briefing, the OIC did not request that the disapprovals be remanded if I granted the AHPs’ and WCIF’s Motions for summary judgment. My Orders granted Motions requesting that the OIC’ s disapprovals/rejections be overturned and that the 2014 rate and form filings be approved. The OIC’s only stated basis for disapproval was invalid, as was discussed in my Orders, and the effect of such Orders is that the OIC shall approve the 2014 rate and form filings at issue. (Those Orders, and the present Order, are of course without prejudice to the OIC’s full review of 2015 and later rate and form filings.)”
That last comment from the judge means that these associations must still endure a regulatory review for the 2015 rates and forms. Thus, more than halfway through 2015, we now know that some of the AHP health plans have been approved for the plans they sold in 2014.
In May, the Association of Washington Business (AWB) filed a motion in Spokane County Superior Court asking the Court to find the Insurance Commissioner in contempt of a 2007 Court ruling that prohibited the Commissioner from taking actions against AHPs in violation of state statutes (see the article reviewing the case here). Not surprisingly, the Spokane Court recently ruled that 2007 was a long time ago (a written record of the decision will show up some day). The judge was not interested in punishing the Commissioner for current actions based upon a ruling in a specific set of circumstances from eight years ago.
While we consider past cases, let me sadly repeat a lament of mine written here five years ago. My observation bears the greater burden of remaining true with the passage of time.
“After my recent but too brief holiday in Ireland, my thoughts turned to the great Irish playwright Samuel Beckett while I waited for the next development in Washington’s health insurance market. We suffer absurd results and frustration while we wait for reform and consistent, reliable direction...
I don’t know yet what will happen in the association plan market or how the battle over sick kids will play out. I can only wait for HHS and the Insurance Commissioner to provide direction. While I wait and reflect on Samuel Beckett’s more famous play, Waiting for Godot, I consider my belt and its length and strength.” [October 18, 2010]
I still don’t know.