An Act To Provide Oversight in Certain Negotiations
Maine Legislature, Session 125, LD 1583
Committee Amendment CA_A_H662 (House)
Amends: 24-A MRSA §4303

COMMITTEE AMENDMENT "A" to H.P. 1168, L.D. 1583, Bill, "An Act To 
Provide Oversight in Certain Negotiations" 
Amend the bill by striking out everything after the enacting clause and before the 
summary and inserting the following: 
'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. A carrier or provider requesting a waiver may 
request a hearing on the application for a waiver in accordance with section 229. The 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT 'A" to H.P. 1168, L.D. 1583 
findings and decision of the superintendent are final agency actions for the purposes 
of Title 5, chapter 375, subchapter 7 and, notwithstanding section 236, subsection 2, 
may be appealed regardless of whether a hearing was held. The superintendent's 
review under this paragraph is limited to the most favored nation clause, and any 
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. 
C. 
Prior to the issuance of the superintendent's findings and decision on an 
application for a waiver pursuant to this subsection, any contract, proposal or draft 
legal instrument submitted to the superintendent in an application for a waiver is not 
a public record for the purposes of Title 1, chapter 13, except that the name and 
business address of the parties to an application for a waiver are public information. 
After the issuance of the superintendent's findings and decision, the superintendent 
may disclose any information that the superintendent determines is not proprietary 
information. For the purposes of this paragraph, "proprietary information" means 
information that is a trade secret or production, commercial or financial information 
the disclosure of which would impair the competitive position of the carrier or 
provider submitting the information and would make available information not 
otherwise publicly available. 
D. 
A carrier may not discriminate or retaliate against a provider for filing or 
opposing an application for a waiver under this subsection. 
E. 
A provider may not discriminate or retaliate against a carrier for filing or 
opposing an application for a waiver under this subsection. 
F. For the purposes of this subsection, the factors the superintendent may consider in 
determining whether to grant a waiver based on a finding that the inclusion of a most 
favored nation clause as described in paragraph A is not anticompetitive include, but 
are not limited to: 
(1) Any reduction or limit on competition among carriers or providers; 
(2) The impact on quality and availability of health care services, including the 
geographic distribution of providers; 
(3) The size of the provider and the type of any specialty; 
(4) The market share of the carrier and the provider; 
(5) The impact on the price and stability of health insurance and health care 
services to consumers; and 
(6) The impact on reimbursement rates in the provider marketplace. 
Sec. 2. Application. This Act applies to any contract executed or renewed on or 
after January 1,2012.' 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT ,A" to H.P. 1168, L.D. 1583 
SUMMARY 
This amendment replaces the bill. 
Like the bill, the amendment 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 amendment also prohibits carriers and 
providers from taking discriminatory OJ retaliatory actions for filing or opposing requests 
for such waivers. 
This amendment clarifies than an applicant for a waiver may request a hearing and 
further clarifies that a decision of the superintendent may be appealed whether a hearing 
is held or not. The amendment also clarifies the factors that may be considered by the 
superintendent in determining whether the inclusion of a "most favored nation" clause is 
anticompetitive. The amendment also narrows the scope of the public records exception 
included in the bill. The amendment makes the bill apply to contracts executed or 
renewed on or after January 1,2012. 
FISCAL NOTE REQUIRED 
(See attached) 
COMMITTEE AMENDMENT 
Fiscal Detail and Notes 
Revised: 06115111 
LD 1583 
LR 2193(02) 
An Act To Provide Oversight in Certain Negotiations 
Fiscal Note for Bill as Amended by Committee Amendment 'A" 
Committee: Insurance and Financial Services 
Fiscal Note Required: Yes 
Fiscal Note 
Minor cost increase - Other Special Revenue Funds 
Additional costs to the Bureau ofInsurance in the Department of Professional and Financial Regulation can be 
absorbed within existing budgeted resources. 
LR2193(02) - Fiscal Note - Page 1 of 1