An Act To Provide Oversight in Certain Negotiations
Maine Legislature, Session 125, LD 1583
Committee: Insurance and Financial Services
Sponsors: RICHARDSON, WHITTEMORE
Amends: 24-A MRSA §4303

Legislative Document 
No. 1583 
H.P. 1168 
House of Representatives, June 7, 2011 
An Act To Provide Oversight in Certain Negotiations 
Reference to the Committee on Insurance and Financial Services suggested and ordered 
printed. 
HEATHER J.R. PRIEST 
Clerk 
Presented by Representative RICHARDSON of Warren.  (GOVERNOR'S BILL) 
Cosponsored by Senator: WHITTEMORE of Somerset. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  24-A MRSA §4303, sub-§15 is enacted to read: 
15.  Prohibition on "most favored nation" clauses.  Participation agreements 
between carriers and providers are governed by this subsection: 
A.  A participation agreement between a carrier and a provider may not include a 
provision, commonly referred to as a "most favored nation" clause, that: 
(1)  Prohibits, or grants the carrier an option to prohibit, the provider from 
entering into a participation agreement with another carrier to provide services at 
a lower price than the payment specified in the participation agreement; 
(2)  Requires, or grants the carrier an option to require, the provider to accept a 
lower payment in the event the provider agrees to provide services to any other 
carrier at a lower price; 
(3)  Requires, or grants the carrier an option of, termination or renegotiation of 
the existing participation agreement in the event the provider agrees to provide 
services to any other carrier at a lower price; or 
(4)  Requires the provider to disclose its reimbursement rates from other carriers. 
B.  The superintendent may grant a waiver to paragraph A on application by either a 
carrier or a provider.  A carrier or provider requesting a waiver for more than one 
participation agreement must file a separate application for each requested waiver.  
The superintendent may grant a waiver only after issuing a finding that the inclusion 
in the participation agreement of a most favored nation clause as described in 
paragraph A is not anticompetitive.  The findings and decision of the superintendent 
are final agency actions for the purposes of Title 5, chapter 375, subchapter 7.  The 
superintendent's decision under this paragraph is for purposes of this subsection only 
and may not be construed as a finding or decision regarding the legality of the 
provision under other applicable law.  Any contracts, proposals or draft legal 
instruments submitted to the superintendent in an application for a waiver are not 
public records for the purposes of Title 1, chapter 13. 
C.  A carrier may not discriminate or retaliate against a provider for opposing an 
application for a waiver under this subsection. 
D.  For the purposes of this subsection, a finding that inclusion of a most favored 
nation clause as described in paragraph A is anticompetitive means that the 
participation agreement will: 
(1)  Result in raising prices in the provider marketplace; or 
(2)  Limit competition. 
SUMMARY 
This bill prohibits the inclusion of so-called "most favored nation" clauses in the 
participation agreements between health insurance carriers and health care service 
providers and authorizes the Superintendent of Insurance to waive this restriction upon 
finding that the inclusion of such a clause will not be anticompetitive.  This bill also 
prohibits carriers from discriminating against providers for opposing requests for such 
waivers.