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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC.                                                                                                                   SUPERIOR COURT
                                                                                                   (FILED:  SEPTEMBER 28, 2011)
CARE NEW ENGLAND HEALTH SYSTEM;                                                                    :
WOMEN & INFANTS HOSPITAL OF RHODE :
ISLAND; BUTLER HOSPITAL, KENT                                                                      :                              C.A. No. PC 10-6984
COUNTY MEMORIAL HOSPITAL; and                                                                      :
KENT COUNTY VISITING NURSE                                                                         :
ASSOCIATION d/b/a VNA OF CARE NEW                                                                  :
ENGLAND                                                                                            :
                                                                                                   :
V.                                                                                                 :
                                                                                                   :
THE RHODE ISLAND OFFICE OF THE                                                                     :
HEALTH INSURANCE COMMISSIONER;                                                                     :
CHRISTOPHER F. KOLLER in his capacity as  :
HEALTH INSURANCE COMMISSIONER;                                                                     :
UNITED HEALTHCARE OF NEW                                                                           :
ENGLAND, INC., UNITED BEHAVIORAL                                                                   :
HEALTH, INC.; and BLUE CROSS & BLUE                                                                :
SHIELD OF RHODE ISLAND                                                                             :
DECISION
SILVERSTEIN, J.   Before the Court is Plaintiffs Care New England Health System, Women
& Infants Hospital of Rhode Island, Butler Hospital, Kent County Memorial Hospital, and Kent
County Visiting Nurse Association d/b/a VNA of Care New England’s  (collectively, CNE)
Partial Motion for Summary Judgment.1   Also before the Court is Defendants The Rhode Island
Office of the Health Commission and Health Insurance Commissioner Christopher F. Koller’s
(Commissioner Koller) (collectively, OHIC) Motion for Summary Judgment.   The instant matter
1 CNE filed a six-count Verified Complaint with claims for: (1) injunctive relief (Count I); (2)
relief under  42 U.S.C.  §  1983  (Count II);  (3) declaratory judgment as to OHIC’s statutory
authority (Count III); (4) declaratory judgment as to its due process rights (Count IV); (5) an
Administrative Procedures Act violation (Count V); and (6) tortious interference with contract
(Count VI).
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arises out of OHIC’s November 16, 2010 Final Order (OHIC-2010-5) (Final Order)—following
an examination pursuant to G.L.  1956  §§  27-13.1-1, et seq.  (Examinations Statute)—which
abrogated certain provisions contained within contracts between CNE and Blue Cross and Blue
Shield of Rhode Island (Blue Cross) and imposed upon Blue Cross an administrative penalty of
$5,000.
I
Background
As a preface, the Court will provide a brief survey of the legislative and statutory terrain
encompassing OHIC and Blue Cross as it relates to the instant matter.
Blue Cross is a nonprofit hospital and medical service corporation incorporated pursuant
to title 27, chapters 19, 19.2, and 20 of our General Laws.   See Blue Cross/Blue Shield of R.I. v.
State Dep’t of Bus. Regulation, No. 04-5769, 2005 WL 1530449, at * 7 (R.I. Super. June 23,
2005) (Silverstein, J.); see also Blue Cross and Blue Shield of R.I. v. Caldarone, 520 A.2d 969,
970 (R.I. 1987).  Within the confines of this statutory scheme, Blue Cross is generally authorized
to establish, maintain, and operate health plans for the purpose of providing medical and hospital
services to its subscribers.  See generally, §§ 27-19-1(3); 20-1(4), (5), and (6).
In 2004, following a public controversy over the management of Blue Cross, the General
Assembly enacted The Rhode Island Health Care Reform Act of  2004  - Health Insurance
Oversight (the Act), G.L. 1956 §§ 42-14.5-1 through 42-14.5-3, creating OHIC within the Rhode
Island Department of Business Regulation (DBR).   See Blue Cross and Blue Shield of R.I. v.
McConaghy, No. PC 04-6806, 2005 WL 1633707, at *1 (R.I. Super. 2005).   Under the Act,
OHIC was endowed with specific regulatory powers and duties related to the health insurance
industry in Rhode Island.  Id.
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In connection therewith, the General Assembly made the following legislative findings:
“(1) A substantial amount of health care services in this state are
purchased  for  the  benefit  of  patients  by  health  care  insurers
engaged in the provision of health care financing services or is
otherwise delivered subject to the terms of agreements between
health care insurers and providers of the services.
“(2) Health care insurers are able to control the flow of patients to
providers  of  health  care  services  through  compelling  financial
incentives for patients in their plans to utilize only the services of
providers with whom the insurers have contracted.
“(3)  Health care  insurers  also  control  the  health  care  services
rendered to patients through utilization review programs and other
managed care tools and associated coverage and payment policies.
“(4) By incorporation or merger the power of health care insurers
in markets of this state for health care services has become great
enough  to  create  a  competitive  imbalance,  reducing  levels  of
competition and threatening the availability of high quality, cost-
effective health care.
“(5)  The  power  of  health  care  insurers  to  unilaterally  impose
provider contract terms may jeopardize the ability of physicians
and other health care providers to deliver the superior quality
health care services that have been traditionally available in this
state.
“(6) It is the intention of the [G]eneral [A]ssembly to authorize
health care providers to jointly discuss with health care insurers
topics of concern regarding the provision of quality health care
through  a  committee  established  by  an  advisory  to  the  health
insurance commissioner.”  Sec. 42-14.5-1.1.
The General Assembly endowed the health insurance commissioner with the following powers
and duties:
“(a) To conduct quarterly public meetings throughout the state . . .
regarding the rates, services and operations of insurers licensed to
provide health insurance in the state[,] the effects of such rates,
services  and  operations  on  consumers,  medical  care  providers,
patients,  and  the  market  environment  in  which  such  insurers
operate and efforts to bring new health insurers into the Rhode
Island market. . .
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“(b) To make recommendations to the governor and the house of
representatives  and  senate finance  committees  regarding  health
care insurance and the regulations, rates, services, administrative
expenses,  reserve  requirements,  and  operations  of  insurers
providing health insurance in the state, and to prepare or comment
on, upon the request of the governor, or chairpersons of the house
or  senate  finance  committees,  draft  legislation  to  improve  the
regulation of health insurance. . .                                                              . The commissioner shall also
make  recommendations  on  the  levels  of  reserves  including
consideration of: targeted reserve levels; trends in the increase or
decrease of reserve levels; and insurer plans for distributing excess
reserves.
“(c)  To  establish  a  consumer/business/labor/medical  advisory
council to obtain information and present concerns of consumers,
business  and  medical  providers  affected  by  health  insurance
decisions.  The council shall develop proposals to allow the market
for small business health insurance to be affordable and fairer. . .
“(d)  To  establish  and  provide  guidance  and  assistance  to  a
subcommittee                                                                                     (‘The  Professional  Provider-Health  Plan  Work
Group’) of the advisory council created pursuant to subsection (c)
above,  composed  of  health  care  providers  and  Rhode  Island
licensed health plans. . .
“(e) To enforce the provisions of [t]itle 27 and [t]itle 42 as set forth
in § 42-14-5(d).
“(f) To provide analysis of the Rhode Island Affordable Health
Plan Reinsurance Fund. . .
“(g) To analyze the impact of changing the rating guidelines and/or
merging  the  individual  health  insurance  market  as  defined  in
chapter 27-18.5 and the small employer health insurance market as
defined in chapter 27-50 . . .”  Sec. 42-14.5-3.
The health insurance commissioner was authorized to discharge these powers and duties in order
to:
“(a) Guard the solvency of health insurers; (b) Protect the interests
of  consumers;                                                                                   (c)  Encourage  fair  treatment  of  health  care
providers; (d) Encourage policies and developments that improve
the  quality  and  efficiency  of  health  care  service  delivery  and
outcomes; and (e) View the health care system as a comprehensive
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entity  and  encourage  and  direct  insurers  towards  policies  that
advance  the  welfare  of  the  public  through  overall  efficiency,
improved health care quality, and appropriate access.”   Sec. 42-
14.5-2.
Also in 2004, the General Assembly enacted chapter 19.2 of title 27, entitled Nonprofit
Hospital and Medical Corporations, which specifically addressed the administration of Blue
Cross.   In drafting the legislation, the General Assembly expressly found that it was in the best
interest of the residents of Rhode Island:
“(1)  To  strengthen  and  reform  the  governance  structure  of
nonprofit hospital service and/or medical service corporations;
“(2) To ensure a diverse, independent and publicly accountable
board of directors;
“(3) To prohibit certain activities which may allow self-interest to
compromise undivided loyalty to the public interest mission for
which such corporations were established; and
“(4) To require adoption of principles and procedures to keep such
corporations aligned with their public interest mission.” Sec. 27-
19.2-1.
For that reason, the General Assembly charged Blue Cross with the following mission statement:
“(1)  To  provide  affordable  and  accessible  health  insurance  to
insureds,  including  those  persons  insured  by  an  affiliate  or
subsidiary of said plan;
“(2) To assist and support public and private health care initiatives
for individuals without health care insurance;
“(3)  To  promote  integration,  efficiency  and  coherence  of  a
statewide health care system that meets the needs of all Rhode
Island residents;
“(4)  To  contribute  through  its  operations,  procedures  and
investments  to  the  improvement  of  medical  and  prevention
services delivered in Rhode Island; and
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“(5) To provide affordable and accessible health insurance to a
comprehensive range of consumers, including business owners,
employees and unemployed individuals.”  Sec. 27-19.2-3.
In accordance with that mission, the General Assembly required Blue Cross to:
“(1) Offer products in the small group;
“(2) Offer products in the individual market, with at least one 30-
day open enrollment period every twelve (12) months;
“(3) Employ pricing strategies that enhance the affordability of
health care coverage; and
“(4) Protect the financial condition of the nonprofit hospital and/or
medical service plan.”  Sec. 27-19.2-10.
II
Facts and Travel
CNE is a Rhode Island healthcare system comprised of Women & Infants Hospital of
Rhode Island, Butler Hospital, Kent County Memorial Hospital, and VNA of Care New England.
See Delmonico Aff.  ¶  3.   Blue Cross is a taxable nonprofit corporation that contracts with
healthcare providers to provide healthcare services to subscribers of its insurance plans.  Id. ¶ 9.
In  mid-2008,  Blue  Cross  and  CNE  began  renegotiating  the  terms  of  their                      2004
participation agreements (2004 Agreements).   See Torti Aff. Ex. F, Rector & Associates Report.
Under the  2004 Agreements, Blue Cross was required to pay CNE  “base rates for covered
services related to commercial business, Medicare Advantage business, and Rite Care.  The basis
rates for those lines of business increased at various rates from January                              1,     2005  through
December 31, 2008.”   See id.   CNE, however, dissatisfied with its level of reimbursement under
the 2004 Agreements, entered the negotiations seeking a 30% increase of its reimbursement rate.
See Delmonico Aff. ¶ 28.
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On December 22, 2008, Blue Cross and CNE entered into contracts—effective as of
January 1, 2009 and expiring December 31, 2013—establishing the amended reimbursement
rates payable by Blue Cross to CNE for services provided by CNE to Blue Cross’s subscribers
(Blue Cross Agreements).   Id. ¶ 21.   The Blue Cross Agreements renewed the 2004 Agreements
for an additional five-year term, and while they left most of the substantive provisions intact, the
parties included material changes to the calculation and amount of compensation to be received
by CNE.  See Torti Aff. Ex. F, Rector & Associates Report.
Specifically, in lieu of the 30% rate increase originally sought, the parties compromised
and agreed to a lower rate increase and a cash payment to CNE in exchange for the inclusion of a
major adverse event provision (Challenged Provision).   See Delmonico Aff. ¶¶ 23, 28.   Under
the Challenged Provision, three separate calculations are conducted annually for CNE - one for
Medicare, one for Medicaid, and one for “other state/federal program.”   See Torti Aff. Ex. F,
Examination Report  ¶  5.    As to each of the three categories of government payors, CNE
separately calculates “positive events,” events that increase CNE’s revenues or lower its costs,
and then offsets the calculation with “adverse events,” or events that decrease CNE’s revenues or
increase its costs.2   Id.   If any of these independent government payor calculations results in a
negative result or shortfall—regardless of whether the calculations for the other two government
payors result in positive events—Blue Cross is liable for a percentage of the shortfall for that
payor.   Id.   Put another way, under this methodology, an “adverse event” for one government
payor cannot be netted-out by “positive events” for the other two government payors.  Id.
2 “Adverse event” is broadly defined as “(i) Federal and/or State actions which directly reduce
the net patient revenue collectively of CNE . . . and its affiliates . . . (collectively ‘CNE Total
System’); or (ii) Federal and/or State actions which directly increase expenses to CNE Total
System.  See Torti Aff. Ex. F, Examination Report ¶ 7.
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The  Challenged  Provision  further  provides  that  Blue  Cross’s  liability  shall  vary
depending on the magnitude of the shortfall up to $10,000,000.   See Delmonico Aff. ¶¶ 25-26;
see also Supplemental Delmonico Aff. ¶¶ 5-9.   And as to a shortfall in excess of $10,000,000,
Blue Cross’s liability is determined by a binding mediation.3   Id.
On or about January 16, 2009, following concerns over the effect of the Blue Cross
Agreements on Blue Cross’s financial condition, OHIC issued an exam warrant to Blue Cross
pursuant  to  the  Examinations  Statute.    See  Torti  Aff.                                        ¶¶  2-4.    The  objective  of  OHIC’s
examination was two-fold: (1) to determine whether Blue Cross’s actions were in compliance
with applicable statutes and regulations; and (2) to evaluate the financial and market impact of
the Blue Cross Agreements on Blue Cross.  Id. ¶ 6.
Thereafter, Blue Cross notified CNE of the warrant and CNE subsequently contacted
OHIC officials.   On January 28, 2009, a meeting was held between CNE, Blue Cross, and OHIC
to explain the purpose of the examination, describe the examination process, and to address
CNE’s concerns.   Id. ¶¶ 5, 7-9.   On February 9, 2009, CNE, Blue Cross, and Commissioner
Koller executed a letter agreement  (Letter Agreement) providing, inter alia, that:  (1) a new
warrant addressing CNE’s concerns over the original warrant would be issued pursuant to the
Examinations Statute; (2) all papers obtained from Blue Cross during the examination would be
treated as work papers and afforded confidentiality as provided by the Examinations Statute; (3)
CNE would be invited and entitled to attend and participate in any public hearings relating to the
Blue Cross Agreements; (4) CNE would be granted an opportunity to explain its position before
the preparation of any report resulting from the examination; and (5) OHIC would hold the
3 On December 24, 2009, CNE notified Blue Cross of certain MAEs requiring Blue Cross to
increase its base rates.   See Delmonico Aff. ¶ 30.   Since that time, CNE and Blue Cross have
attempted to resolve the pending claims and determine whether a pro rata rate increase is
necessary.  Id. ¶ 31.
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contents of any final report private and confidential for a thirty-day period following the mailing
of a copy to CNE.    Id. ¶¶ 10-11; see also Torti Aff. Ex. D, Letter Agreement.
The Blue Cross examination was conducted by Joseph Torti, III, Deputy Director and
Superintendent of Insurance for the DBR, and John Aloysius Cogan, Jr., Executive Assistant for
Program and Policy Review at OHIC (collectively, Examiners) with assistance from Rector &
Associates, Inc.   See Torti Aff. Ex. G, Final Order (OHIC-2010-5).   On April 10, 2009, Laurie
Briggs  (Briggs),  a  Rector  &  Associates  consultant,  emailed  CNE’s  counsel  to  schedule  a
conference call on April 15, 2009 “to discuss [CNE’s] contracts with Blue Cross[.]”   See Torti
Aff. Ex. E, April 10, 2009 email.   Briggs indicated that the call was intended to be “CNE’s
opportunity to provide  [them] with its perspective on the  [Blue Cross] negotiations and the
resulting contracts.”   Id.   Additionally, Briggs sought information regarding: (1) the process by
which CNE determines payment rates; (2) the factors that led to the inclusion of the Challenged
Provision; and  (3) how the provisions and rates agreed to by Blue Cross compare to those
negotiated by CNE with other insurers.  Id.
Over the next eighteen months, the Examiners proceeded with their investigation.   See
Torti Aff. ¶ 14.   On October 12, 2010, the examination report was finalized, and on October 22,
2010,  the  Examiners  made  their  recommendations  and  transmitted  the  verified  exam
(Examination Report) to Commissioner Koller and Blue Cross.   Id. ¶¶ 15-16.   As their final
recommendations, the Examiners stated:
“Given  that  Blue  Cross  is  a  creation  of  statute  and  is  only
authorized to write lines of insurance with respect to certain types
of  risk,  specifically                                                                               (1)  health  insurance;   (2)  stop-loss  and
catastrophic insurance; and (3) the types of insurance that may be
provided by nonprofit dental service corporations, nonprofit legal
service   corporations,   and   nonprofit   optometric   service
corporations, and is not authorized to write any other lines of
insurance, it is difficult to see how Blue Cross’s obligations under
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the [Challenged Provision] do not exceed Blue Cross’s statutory
authority.”  See Torti Aff. Ex. F, Examination Report ¶ 4.
The Examiners further concluded that by “ceding ultimate control over the rates it pays CNE”
and subjecting itself to the “open-ended nature of the [Challenged Provision],” Blue Cross had
placed its reserves at risk and potentially jeopardized its solvency in violation of the statutory
mandate to protect its financial condition.   Id. ¶ 8.   For these reasons, the Examiners ultimately
recommended that Commissioner Koller order Blue Cross to:  (1) disregard the Challenged
Provision;                                                                                             (2)  use its best efforts to  renegotiate  the  Blue  Cross Agreements in  a  manner
consistent with its legal authority; and (3) refrain from agreeing to similar provisions.   Id. ¶ 9.
Additionally, the Examiners recommended that Commissioner Koller issue an administrative
penalty against Blue Cross.  Id.
Upon receipt of the Examination Report, Blue Cross was advised of its obligation to
prepare and submit to OHIC a written submission or rebuttal with respect to any and all matters
contained in the documents.   See Torti Aff. Ex. G, Final Order ¶ 6.   On November 8, 2010, Blue
Cross filed its response.   See OHIC’S Summ. J. Mem. Ex. B.   Thereafter, Commissioner Koller
considered and reviewed the Examination Report and recommendations, together with Blue
Cross’s written response and the relevant portions of the Blue Cross Agreements.   See Torti Aff.
Ex. G, Final Order ¶ 6.
On  November  16,  2010,  OHIC  issued  the  Final  Order,  adopting  the  findings  and
recommendations4 of the Examination Report and imposing an administrative penalty of $5,000.
See Torti Aff. ¶ 17.   Both the Examination Report and Final Order were sent to Blue Cross and
CNE.   Id.   In his cover letter attaching the documents, Commissioner Koller indicated that (1)
4
Commissioner Koller adopted the Examination Report, its findings and conclusions, and the
recommendations of the Examiners with the exception of Recommendation 9.  See Torti Aff. Ex.
G, Final Order.
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the content of the Final Order would remain private and confidential for thirty days; (2) the Final
Order was a final administrative decision appealable pursuant to Administrative Procedures Act,
chapter 35, title 42; and (3) CNE should contact him with any questions regarding the documents
or anything else addressed in the letter.    See Torti Aff. Ex. G.    Subsequently, Blue Cross
informed CNE that it would no longer abide by the Challenged Provision.  See Delmonico Aff. ¶
37.   Despite Commissioner Koller’s request that CNE contact him to discuss any questions,
OHIC  was  never  contacted  to  discuss  the  matter  or  to  resolve  the  issues  raised  in  the
Examination Report and Final Order.  See Torti Aff. ¶ 18.
III
Standard of Review
Summary judgment is proper when, after reviewing the admissible evidence in a light
most favorable to the non-moving party, “no genuine issue of material fact is evident from the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, and the motion justice finds that the moving party is entitled to prevail as a
matter of law.”   Smiler v. Napolitano, 911 A.2d 1035, 1038 (R.I. 2006) (quoting Rule 56(c)).
When considering a motion for summary judgment, “the court may not pass on the weight or
credibility of the evidence but must consider the affidavits and other pleadings in a light most
favorable to the party opposing the motion.”   Westinghouse Broad. Co., Inc. v. Dial Media, Inc.,
122 R.I. 571, 579, 410 A.2d 986, 990 (R.I. 1980) (internal citations omitted).  During a summary
judgment proceeding, “the justice’s only function is to determine whether there are any issues
involving material facts.”   Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981).   Moreover, in
passing upon a motion for summary judgment under Rule 56, if no genuine issue of material fact
exists, the trial justice may determine “‘whether the moving party is entitled to judgment under
11




the applicable law.’”   Ludwig v. Kowal, 419 A.2d 297, 301 (R.I. 1980) (quoting Belanger v.
Silva,  114 R.I.  266,  267,  331 A.2d  403,  404  (1975)).                                          “When there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law, summary judgment
is properly entered.”   Tangleridge Dev. Corp. v. Joslin, 570 A.2d 1109, 1111 (R.I. 1990); see
also Holliston Mills, Inc. v. Citizens Trust Co., 604 A.2d 331, 334 (R.I. 1992) (stating that
“summary judgment is proper when there is no ambiguity as a matter of law”).
IV
Discussion
CNE’s challenge of OHIC’s Final Order is essentially three-fold.   CNE contends: (1)
OHIC exceeded its statutory authority by abrogating a contract provision entered between CNE
and  Blue  Cross;                                                                                    (2)  OHIC  failed  to  comply  with  the  procedural  requirements  of  the
Administrative Procedures Act (APA), G.L. 1956 § 42-35-1, et seq.; and (3) OHIC abridged a
property interest without affording adequate due process.   For its part, OHIC seeks summary
judgment as to all counts of CNE’s Verified Complaint and asserts: (1) its actions were not ultra
vires in light of its broad enforcement authority; (2) CNE was afforded the requisite due process;
(3) OHIC complied with the provisions of the Examinations Statute and APA; and (4) CNE’s
claim for tortious interference with contract must fail as a matter of law.   The Court will now
address these claims in seriatim.
A
OHIC’s Statutory Authority
CNE asserts that OHIC exceeded its statutory authority when it issued the Final Order,
and therefore, seeks a declaration that the Final Order, with respect to the Challenged Provision,
is of no legal force or effect.   Conversely, OHIC maintains that as the governmental body
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responsible for overseeing Blue Cross and guarding its solvency and financial condition, OHIC’s
actions were clearly within the statutory authority provided by titles 27 and 42, and Regulation 2
of the Office of the Health Insurance Commissioner (Regulation 2).
It is black-letter law that “[a]n administrative agency is a product of the legislation that
creates it, and it follows that ‘[a]gency action is only valid, therefore, when the agency acts
within the parameters of the statutes that define [its] powers.’”   Iselin v. Ret. Bd. of Emps.’ Ret.
Sys. of R.I., 943 A.2d 1045, 1050 (R.I. 2008) (quoting In re Advisory Opinion to the Governor,
627 A.2d  1246,  1248  (R.I.  1993)).    For that reason, CNE would have this Court read our
statutory framework as endowing OHIC with only limited enforcement authority.   The Court,
however, does not believe that such a reading is in accord with the plain and clear language of
our statutes or with the intent of the General Assembly.5
In Rhode Island, the General Assembly specifically conferred upon the health insurance
commissioner the “sole and exclusive jurisdiction over enforcement” of matters relating to health
insurance.   See § 42-14-5(d).   OHIC’s enabling statute—chapter 14.5 of title 42—specifies that
5
The Court’s determination is tempered by our well-settled canons of statutory construction.  To
ascertain a statute’s meaning, the Court is mindful that its ultimate goal is to give effect to the
General Assembly’s intent.  See State v. Graff, 17 A.3d 1005, 1010 (R.I. 2011) (quoting Martone
v. Johnston Sch. Comm., 824 A.2d 426, 431 (R.I. 2003)).   Where, as here, the language of the
statute                                                                                                  “‘is unambiguous and expresses a clear and sensible meaning, there is no room for
statutory construction or extension, and [the Court] must give the words of the statute their plain
and obvious meaning. . .                                                                                 . Such meaning is presumed to be the one intended by the Legislature . .
. .’”   McGuirl v. Anjou Int’l Co., 713 A.2d 194, 197 (R.I. 1998) (quoting Wayne Distrib. Co. v.
Rhode Island Comm’n for Human Rights, 673 A.2d 457, 460 (R.I. 1996)); see also Steinhof v.
Murphy, 991 A.2d 1028, 1036 (R.I. 2010) (quoting State v. Germane, 971 A.2d 555, 574 (R.I.
2009)) (affirming that “‘[w]hen interpreting a statute, [the Court’s] ultimate goal is to give effect
to the General Assembly’s intent. . .                                                                    . The best evidence of such intent can be found in the plain
language used in the statute. Thus, a clear and unambiguous statute will be literally construed.’”).
It is only in those instances where the Court ascertains “‘an actual ambiguity in the statute, not
one styled by skilled attorneys’” that the Court will “‘employ our well-established maxims of
statutory construction in an effort to glean the intent of the Legislature.’”  Town of Burrillville v.
Pascoag Apartment Assocs., LLC, 950 A.2d 435, 445 (R.I. 2008) (quoting Unistrut Corp. v.
State Dep’t of Labor & Training, 922 A.2d 93, 98-99 (R.I. 2007)).
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the health insurance commissioner is to “discharge [his] powers and [the] duties of office” to
guard the solvency of health insurers and protect the interests of consumers.   See § 42-14.5-2;
see also Regulation                                                                                       2  §§  5 &  6.    Among those powers and duties, the health insurance
commissioner is responsible for  “enforc[ing] th[ose] provisions of  [t]itle  27 and  [t]itle  42”
relating to health insurance.   See § 42-14.5-2.   In particular, “[i]t is the duty of the [health
insurance commissioner] to make an examination of the financial condition and methods of
doing business of every nonprofit hospital service corporation  [such as Blue Cross]  .  .  . in
accordance with all of the provisions of [the Examinations Statute].”  Sec. 27-19-9.
Although CNE would limit OHIC’s authority under the Examinations Statute to merely a
determination of whether a company is in compliance with applicable laws and regulations, the
plain language grants the health insurance commissioner broad enforcement and regulatory
authority.6   See, e.g., § 27-13.1-3(a) (“The [health insurance commissioner] . . . may conduct an
examination . . . of any company as often as the [health insurance commissioner] in his sole
discretion deems appropriate. . .                                                                         .”); § 27-13.1-3(b) (“[T]he [health insurance commissioner] may
examine or investigate any person, or the business of any person, in so far as the examination or
investigation is, in the sole discretion of the  [health insurance commissioner], necessary or
material  to  the  examination  of  the  company.”);                                                      §                                                                       27-13.1-4(c)   (“The   [health  insurance
commissioner] . . . shall have the power to issue subpoenas, to administer oaths, and to examine
6 Similarly, under Regulation 2, the health insurance commissioner, upon a determination that
“any action or inaction by a health insurer could adversely affect the solvency or financial
condition of that health insurer,” may exercise any duty or power authorized by titles 27 or 42
and broadly act to guard the solvency and financial condition of a health insurer.  See Regulation
2 § 5(b)(ii).  Notably, when making a determination as to the solvency and financial condition of
a health insurer, the health insurance commissioner is specifically authorized to “consider and/or
act upon . . . a health insurer’s transaction with affiliates, agents, vendors, and other third parties
to the extent that such transactions adversely affect the financial condition of the health insurer.”
See id. § 5(c)(iv).
14




under oath any person as to any matter pertinent to the examination.”).    Indeed, in those
instances where an “examination report reveals that the company is operating in violation of any
law, regulation, or prior order of the [health insurance commissioner],” Commissioner Koller is
specifically  authorized  to                                                                              “order  the  company  to  take  any  action  the   [health  insurance
commissioner] considers necessary and appropriate to cure the violation.”  Sec. 27-13.1-5(c)(1).
Furthermore, our General Laws, similarly authorized Commissioner Koller’s levy of an
administrative penalty.   Pursuant to § 42-14-16(a), whenever the health insurance commissioner
has “cause to believe that a violation of title 27 and/or chapters 14, 14.5, 62 or 128.1 of title 42 or
the regulations promulgated thereunder” has occurred, he or she is authorized to:
“(1)  Revoke  or  suspend  a  license;  (2)  Levy  an  administrative
penalty in an amount not less than one hundred dollars ($100) nor
more than fifty thousand dollars ($50,000); (3) Order the violator
to cease such actions; (4) Require the licensee or person or entity
conducting any activities requiring licensure under title 27 to take
such  actions  as  are  necessary  to  comply  with  title                                                27  and/or
chapters                                                                                                  14,                                                14.5,                62,  or   128.1  of  title   42,  or  the  regulations
thereunder; or (5) Any combination of the above penalties.”   Sec.
42-14-16(a).
Therefore, under the current statutory scheme, Commissioner Koller had a statutory duty to
examine Blue Cross’s financial condition and methods of doing business and to protect its
solvency.    Moreover, titles  27 and  42 undoubtedly provided Commissioner Koller with the
statutory authority to not only impose an administrative penalty, but also to issue an order
requiring Blue Cross to take those actions he deemed necessary and appropriate.
Consequently, based on the plain and unambiguous language of titles 27 and 42, as well
as Regulation 2, the Court finds no basis for CNE’s assertion that Commissioner Koller did not
have  the  statutory  authority  to  conduct  an  examination  or  issue  an  order  nullifying  the
Challenged Provision and ordering the parties to renegotiate.   OHIC conducted an examination
15




to address concerns over the Challenged Provision’s effect on Blue Cross’s financial condition
and the potential impact on health insurance affordability, accessibility, provider fairness, and
other regulatory objectives; thus, it was free to order Blue Cross, based on its findings, to
undertake those actions deemed necessary and appropriate to remedy the violation.   For that
reason, the Court: (1) finds that OHIC’s actions were not in excess of its statutory authority; (2)
rejects CNE’s attempt to read the language of OHIC’s enabling statute and the Examinations
Statute in a manner nullifying the Final Order; and (3) grants OHIC’s motion for summary
judgment as to this claim.7
B
Due Process Claims
The due process clauses of the United States and Rhode Island Constitutions “‘provide[]
heightened  protection  against  government  interference  with  certain  fundamental  rights  and
liberty interests.’”   State v. Germane, 971 A.2d 555, 583 (R.I. 2009) (quoting Washington v.
Glucksberg, 521 U.S. 702, 720 (1997)).   Procedural due process ensures that notice and an
opportunity to be heard precede any deprivation of a person’s life, liberty, or property.8   Moreau
7  In addition to challenging OHIC’s statutory authority, CNE also challenges:  (1) OHIC’s
findings relating to the Challenged Provision’s impact on or threat to Blue Cross’s solvency; (2)
the necessity or propriety of the provisions of the Final Order; and (3) OHIC’s determination that
the Challenged Provision was an ultra vires insurance obligation.  Those findings, however, were
made in connection with OHIC’s examination and the issuance of its Final Order pursuant to the
Examinations Statute.   As such, they are not properly before the Court as this time.   Indeed, the
Examinations  Statute  provides  that                                                                  “[a]ny  order  shall  be  considered a  final  administrative
decision and may be appealed pursuant to the Administrative Procedures Act, chapter 35 of title
42.”  Sec. 27-13.1-5.  Here, CNE readily concedes that it was not a party to OHIC’s examination
and is not currently seeking an administrative appeal.   For that reason, the Court rejects outright
CNE’s attempt to circumvent the procedural requirements of the Examinations Statute and APA
in order to overturn the statutorily authorized actions and findings of an agency.
8 The Due Process Clause of the Fourteenth Amendment provides that “no state shall . . . deprive
any person of life, liberty, or property without due process of law.”   Correspondingly, Article 1,
Section 2 of the Rhode Island Constitution states “[n]o person shall be deprived of life, liberty or
16




v. Flanders,  15 A.3d  565,  587-88  (R.I.  2011)  (citing Germane,  971 A.2d at  574)  (internal
citations omitted); see also Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S. Ct. 2701, 2705
(1972) (stating that procedural due process requires some kind of hearing prior to the deprivation
of a constitutionally protected property interest).
The protections of procedural due process, however, are not triggered unless a party can
show that it has been deprived of a protectable liberty or property interest as defined by an
independent source such as state law.   See Moreau, 15 A.3d at 588 (citing Morrissey v. Brewer,
408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972)) (affirming that a court will determine what
process is due only after a determination that a legitimate property or liberty interest exists); see
also Salisbury v. Stone, 518 A.2d 1355, 1360 (R.I. 1986) (citing Roth, 408 U.S. at 569, 92 S. Ct.
at 2705) (asserting that a party must establish a “legitimate claim of entitlement” to demonstrate
a property interest).   Therefore, a party alleging  “‘a deprivation of due process rights must
demonstrate that either a property or liberty interest[,] clearly protected by the due process
clause[,] was divested . . . without [adequate] procedural safeguards.’”   Bradford Assocs. v.
Rhode Island Div. of Purchases, 772 A.2d 485, 489 (R.I. 2001) (quoting Salisbury, 518 A.2d at
1360).
1
Administrative Procedures Act
According to CNE, OHIC’s Final Order violated a protected interest arising under the
APA.   In particular, CNE asserts that the APA’s statutory scheme, requiring OHIC to provide
notice and an opportunity to be heard before issuing final orders in contested cases, forms the
property without due process of law.”   It is well settled, that because the Due Process Clauses of
the United States and Rhode Island Constitutions are identical, the analysis under both clauses is
the same.   See Rhode Island Depositors Econ. Prot. Corp. v. Brown, 659 A.2d 95, 100 (R.I.
1995), cert. denied, 516 U.S. 975, 116 S. Ct. 476 (1995)).
17




basis for its due process claim.    For its part, OHIC maintains that the APA’s procedural
requirements relating to “contested cases” are inapplicable to the instant matter and directs the
Court to the procedural requirements set forth in the Examinations Statute itself.
It is well settled that “[p]rotected interests in property are normally ‘not created by the
Constitution. Rather, they are created and their dimensions are defined’ by an independent
source such as state statutes or rules entitling the citizen to certain benefits.”  Goss v. Lopez, 419
U.S. 565, 572-73, 95 S. Ct. 729, 735 (1975) (quoting Roth, 408 U.S. at 577, 92 S. Ct. at 2709);
see also URI Student Senate v. Town of Narragansett, 631 F.3d 1, 11 (1st Cir. 2011) (affirming
that a constitutionally protected property interest rests on a right or status conferred by state law,
not merely on the complaining party’s unilateral expectations).   It follows therefore, that the
APA admittedly may, under certain circumstances, form the basis of a party’s legitimate claim of
entitlement.  Id.
Here, however, CNE’s claim of entitlement arising under the APA fails for two reasons.
First, in order to implicate the procedural protections of  §  42-35-9—and claim a protected
interest thereunder—CNE must have been a party to a “contested case.”   See § 42-35-9 (“[I]n
any contested case, all parties shall be afforded an opportunity for hearing after reasonable
notice.”).   To qualify as “contested case,” the APA provides that a hearing be required by law
before a party’s legal rights are affected.   See § 42-35-1(3) (“[A] proceeding, including but not
restricted  to  ratemaking,  price  fixing,  and  licensing,  in  which  the  legal  rights,  duties,  or
privileges of a specific party are required by law to be determined by an agency after an
opportunity for hearing.”); see also Pine v. Clark, 636 A.2d 1319, 1325 (R.I. 1994) (holding that
a proceeding did not fall under the APA’s definition of a contested case and the APA’s judicial
review section was inapplicable where a hearing was not required by law).   Given that CNE was
18




not a party to OHIC’s examination and that the Examinations Statute does not require a hearing
where an examination report has been adopted, the Court finds as a matter of law that the instant
matter cannot possibly qualify as a contested case.9
Second, CNE’s claim of entitlement under the APA is simply inconsistent with the plain
language of the Examinations Statute.   Indeed, when conducting an examination, adopting an
examination report, or issuing a final order, the Examinations Statute itself—not the APA—
dictates the requisite procedural safeguards owed to a party.10   See generally, §§ 27.13.1-4, -5.  It
is only upon the issuance of a final order by the health insurance commissioner, that a party’s
right to invoke the APA is even implicated.    See  §  27-13.1-5(d)(1)  (“Any order shall be
considered a final administrative decision and may be appealed pursuant to the [APA]. . .”).
Moreover, the procedural safeguards of the Examinations Statute are only afforded to the
9
Under the Examinations Statute, an investigatory hearing may be held only if the health
insurance commissioner rejects the examination report and directs the examiners to reopen the
examination for the purposes of obtaining addition information.   See §§ 27-13.1-5(c)(1), -(c)(2).
Any hearing shall be conducted as a non-adversarial confidential investigatory proceeding as
necessary for the resolution of any inconsistencies, discrepancies, or disputed issues apparent
upon the face of the filed examination report or raised by or as a result of the health insurance
commissioner’s review.    See § 27-13.1-5(d)(2).
10 Under the Examinations Statute, an examination report must be filed no later than sixty days
following the completion of an examination.   See § 27-13.1-5(b).   Upon receipt of the report, a
copy is mailed to the examined company, together with a notice requiring a response or rebuttal
within thirty days to all comments and questions contained in the report.   Id.   Within thirty days
of  receiving  the  response,  the  health  insurance  commissioner  considers  and  reviews  the
examination  report,  together  with  any  responses  or  rebuttals  and  relevant  portions  of  the
examiner’s workpapers, and enters an order: (1) adopting the examination report as filed or with
modifications; or (2) rejecting the examination report and directing the examiners to reopen the
examinations to collect additional information and to hold investigatory hearings.  See § 27-13.1-
5(c). If the adopted examination report reveals that the examined company is operating in
violation of any law, regulation or prior order of the commissioner, the commissioner may order
the company to take any action the commissioner considers necessary and appropriate to cure the
violation.   Id.   All orders shall be accompanied by the director’s findings and conclusions and
shall be considered a final administrative decision, appealable pursuant to the APA.   See § 27-
13.1-5(d).   All adopted examination reports are held as private and confidential for a period of
thirty days, and thereafter opened for public inspection unless otherwise ordered by a court.   See
§ 27-13.1-5(e).
19




examined  company,  and  CNE—a  nonparty  to  the  examination—may  not  now  claim  any
entitlements to due process.   See, e.g., § 27-13.1-5(b) (“Upon receipt of the verified report, the
department shall transmit the report to the company examined, together with a notice that shall
require  the  company  examined  to  file                                                             .  a  written  response  to  all  comments  and
recommendations contained in the examination report . . .                                             . In lieu of these requirements, the
company  may  submit  a  rebuttal  to  any  comment  or  recommendation  contained  in  the
examination report.”); § 27-13.1-5(c) (“If the examination report reveals that the company is
operating in violation of any law, regulation . . . the director may order the company to take any
action the director considers necessary and appropriate to cure the violation.”); § 27-13.1-5(d)(1)
(“Any order shall be considered a final administrative decision and may be appealed pursuant to
the [APA], and shall be served upon the company . . .”); § 27-13.1-5(d)(2) (setting forth the
procedures  for  a  non-adversarial  confidential  investigatory  proceeding  between  the  health
insurance commissioner and the examined company).   Consequently, in light of the foregoing,
the Court finds as a matter of law that CNE is not entitled to the procedural protections of either
the Examinations Statute or § 45-35-9 of the APA, and for that reason, the Court denies its claim
for due process thereunder.
2
The Blue Cross Contracts & Letter Agreement
The second basis for CNE’s due process claim is premised on its alleged vested property
interest arising under the Blue Cross Agreements.   CNE contends that OHIC issued the Final
Order without providing it with adequate notice or a hearing, and consequently divested CNE of
its vested contractual rights without due process of law.   OHIC maintains, however, that Blue
Cross lacked the statutory authority to enter into the Challenged Provision, and as a result, the
20




Blue Cross Agreements are void ab initio.   Moreover, OHIC asserts that even assuming the
existence of a valid contract, CNE was afforded the requisite notice and opportunity to be heard.
It is axiomatic that the “liberty” or “property” interests protected by due process need not
always flow from state law or the Constitution.  Roth, 408 U.S. at 577, 92 S. Ct. at 2709.  Rather,
a private contract may create a legitimate claim of entitlement sufficient to implicate the
protections of due process.   Lynch v. U.S.,  292 U.S.  571,  579,  54 S. Ct.  840,  843  (1934).
Accordingly, CNE maintains that its vested right to enforce the obligations of the Blue Cross
Agreements was a protectable interest within the purview of due process.
OHIC, however, has previously determined that the Challenged Provision was an illegal
insurance obligation and that Blue Cross exceeded its statutory authority by entering into the
Blue Cross Agreements.11   In view of those determinations, the Court finds that the Blue Cross
Agreements are ultra vires contracts—having been made in violation of Blue Cross’s well-
defined  and  limited  statutory  powers—and  therefore,  are  void  ab  initio.    See  Resolution
Oversight Corp. v. Kansas Health Care Stabilization Fund, 38 Kan. App. 2d 899, 905, 175 P.3d
268,  273  (Kan. App.  2008)  (explaining that to the extent an entity enters into a contract
exceeding the scope of its statutory authority, the contract is unlawful, unenforceable, and void);
St. Charles County v. A Joint Bd. or Comm’n, 184 S.W.3d 161, 166 (Mo. App. 2006) (quoting
Donovan v. Kansas City, 352 Mo. 430, 440, 175 S.W.2d 874, 879 (1943)) (stating that “‘[a]
contract of a corporation which is ultra vires . . . [or] beyond the powers conferred upon it by the
General  Assembly[,]  is  not  voidable  only,  but  wholly  void,  and  of  no  legal  effect’”).
Accordingly, CNE can assert no rights or entitlements under the Blue Cross Agreements and
thus, its due process claim must fail.   See Kells v. Town of Lincoln, 874 A.2d 204, 209-10 (R.I.
11 See supra note 7.
21




2005) (implying that a contract in contravention of state statute is illegal and no contractual
rights are created thereunder); Power v. City of Providence, 582 A.2d 895, 900 (R.I. 1990); see
also State Dep’t of Bus. Regulation, 2005 WL 1530449, at * 7 (emphasizing that there can be no
protectable interest without a valid contract).
Moreover, CNE can point to no other legitimate claims of entitlement or protectable
interests that were deprived by the Final Order.   Rather, without the benefit of the Blue Cross
Agreements to serve as the basis of its due process claim, the terms of the Letter Agreement must
consequently govern CNE’s entitlement, if any, to notice and an opportunity to be heard.   Under
the Letter Agreement, CNE had a legitimate expectation that it would be provided with: (1) an
opportunity to address the Blue Cross Agreements before the preparation of any report resulting
from the examination; (2) a copy of any portion of the examination report to be made public
following the entry of an order adopting the report; and (3) the right to attend any public hearing
related to the examination and to participate in any portion of the hearing related to the Blue
Cross Agreements.12    See Torti Aff. Ex. D, Letter Agreement.    A review of the evidence,
however, indicates that CNE was afforded all the procedural protections previously agreed to and
more.
Indeed, on January 28, 2009, CNE was initially invited to a meeting with Blue Cross and
OHIC to explain the purpose of the examination, describe the examination process, and to
address CNE’s concerns.   See Torti Aff. ¶¶ 5, 7-9.   During the examination, OHIC organized a
teleconference with CNE to discuss the Blue Cross Agreements and obtain information and
CNE’s perspective on: (1) the process by which CNE determines payment rates; (2) the factors
that led to the inclusion of the Challenged Provision; and (3) how the provisions and rates agreed
12 Notably, no public hearings were held in connection with OHIC’s examination of Blue Cross
and the Blue Cross Agreements.
22




to by Blue Cross compared to those negotiated by CNE with other insurers.  See Torti Aff. Ex. E,
April 10, 2009 email; see also Briggs Aff. ¶¶ 4-5.   Finally, at the conclusion of the examination,
both the Examination Report and Final Order were sent to CNE, and Commissioner Koller
instructed CNE to contact him with any questions regarding the documents or anything else
addressed in his cover letter.  See Torti Aff. Ex. G, Final Order.  Therefore, having been afforded
all the procedural protections agreed to, the Court finds as a matter of law that CNE was not been
divested of any contractual rights, and accordingly, due process was not implicated.
In light of the foregoing, the Court finds as a matter of law that CNE did not possess a
protected interest under the APA or the Blue Cross Agreements, and for that reason, the entry of
the Final Order was not a violation of its due process rights.   Moreover, the Court is of the
opinion that any obligation to provide CNE with notice and an opportunity to be heard arose
solely from the Letter Agreement; and based on the proffered evidence, the Court finds those
obligations to have been adequately satisfied.
3
42 U.S.C. § 1983
In Count II of its Verified Complaint, CNE invokes the equitable powers of 42 U.S.C. §
1983 and requests that this Court enjoin OHIC and Commissioner Koller from depriving it of its
constitutional rights.                                                                                42 U.S.C. § 1983 provides:
“Every  person  who,  under  color  of  any  statute,  ordinance,
regulation,  custom,  or  usage,  of  any  State  or  Territory  or  the
District  of  Columbia,  subjects,  or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured  in  an  action  at  law,  suit  in  equity,  or  other  proper
proceeding for redress. . .                                                                           .”
23




The purpose of  §  1983 is to  “‘interpose the courts between the  [s]tates and the people, as
guardians of the people’s federal rights.’”   Jolicoeur Furniture Co., Inc. v. Baldelli, 653 A.2d
740, 749-50 (R.I. 1995) (quoting Patsy v. Board of Regents of Fla., 457 U.S. 496, 503, 102 S. Ct.
2557, 2561 (1982).   As guardians, the courts are to “‘protect the people from unconstitutional
action under color of state law, whether that action be executive, legislative, or judicial.’”  Id.
In practice, § 1983 creates “‘a species of tort liability’” in favor of persons who are
deprived of ‘rights, privileges, or immunities secured’ to them by the Constitution.”   See Carey
v. Piphus, 435 U.S. 247, 253 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 417, 96 S. Ct.
984, 996 (1976)).   Therefore, “[t]he first inquiry in any § 1983 suit . . . is whether the plaintiff
has been deprived of a right  ‘secured by the Constitution and laws’” of the United States.
Baldelli, 653 A.2d 740, 749-50 (R.I. 1995) (quoting Baker v. McCollan, 443 U.S. 137, 140, 99 S.
Ct. 2689, 2692 (1979)).   Here, however, where the Court has previously determined that CNE
was not deprived of any due process rights, the answer to that inquiry unquestionably disposes of
this claim as a matter of law.     Accordingly, the Court grants OHIC’s motion for summary
judgment thereto.
C
Tortious Interference with Contract
Although not initially briefed, as the gravamen of its claim for intentional interference
with contract, CNE argues that by ordering Blue Cross not to make any payments under the
Challenged  Provision  and  requiring  Blue  Cross  to  use  its  best  efforts  to  renegotiate  the
Challenged Provision, OHIC, by way of the Final Order, intentionally and wrongfully interfered
with the Blue Cross Agreements.   However, OHIC asserts that without a valid contract between
Blue Cross and CNE, there can be no basis for a tortious interference claim.    Moreover,
24




assuming arguendo that a cognizable contract existed between the parties, OHIC avers that CNE
has failed to demonstrate an improper purpose.
To prevail on a claim of tortious interference with contractual relations, a plaintiff must
establish “(1) the existence of a contract; (2) the alleged wrongdoer’s knowledge of the contract;
(3) his [or her] intentional interference; and (4) damages resulting therefrom.”  Tidewater Realty,
LLC v. State, 942 A.2d 986, 993 (R.I. 2008).   Additionally, our Supreme Court has clarified that
mere intentional interference will not suffice; rather, a party’s interference must have been
improper.   Id. (citing Avilla v. Newport Grand Jai Alai, LLC, 935 A.2d 91, 98 (R.I. 2007)); see
also Baldelli, 653 A.2d 740, 753 (R.I. 1995) (explaining that although a showing of improper
interference does not require evidence of actual malice, a party, a minimum, must establish an
intent to do harm without justification).
While a determination of improper interference is undoubtedly a question of fact not
ordinarily ripe for determination on a motion for summary judgment, in light of the Court’s prior
determination that the Blue Cross Agreements were void ab initio, the Court need not reach such
a determination to dispose of CNE’s claim.   Indeed, without a valid contract, CNE cannot, as a
matter of law, satisfy the elements of its tortious interference claim, and therefore, the Court
must grant OHIC’s motion for summary judgment as to this claim.
V
Conclusion
After due consideration of the arguments advanced by counsel at oral argument and in
their memoranda, the Court finds, as a matter of law, that OHIC was acting within its statutory
authority when it conducted an examination of Blue Cross and issued the Final Order nullifying
the Challenged Provision, requiring the parties to renegotiate, and imposing an administrative
25




penalty.   Moreover, the Court finds that CNE was not deprived of a protected interest under
either the APA or the parties’ private contracts, and thus, due process was not implicated.   For
that reason, the Court grants OHIC’s motion for summary judgment as to Counts I, II, III, IV, V,
and VI.13
Prevailing counsel may present an order consistent herewith which shall be settled after
due notice to counsel of record.
13 Count I of CNE’s Verified Complaint seeks an injunction preventing OHIC from, inter alia:
(1)  enforcing the Final Order; and  (2) publishing or otherwise releasing to the public the
Examination Report and Final Order containing confidential information concerning the Blue
Cross  Agreements.    See  Verified  Complaint                                                          ¶   58.   In  that  connection,  in  view  of  the
determinations contained herein, the Court denies the first prong of the injunctive relief sought
by  CNE.    The  Court,  however,  cannot  so  readily  dispose  of  the  second  prong  of  the
aforementioned request for relief.   Rather, the Court is called upon to balance the equities and
weigh the parties’ right to confidentiality against the public interest in disclosure.   Although the
Court is keenly aware of the confidential nature of the provisions contained within the Blue
Cross Agreements, the Court cannot simply disregard the General Assembly’s intent.    The
General Assembly created OHIC to: (1) guard the solvency of health insurers; (2) protect the
interests of consumers;  (3) encourage fair treatment of health care providers;  (4) encourage
policies and developments that improve the quality and efficiency of health care service delivery
and outcomes; and (5) direct insurers towards policies that advance the welfare of the public
through overall efficiency, improved health care quality, and appropriate access.   See § 42-14.5-
2.   Consistent therewith, the Court declines to enjoin the release of the Examination Report and
Final Order and leaves the matter in the hands of Commissioner Koller.
26

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