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An Act To Provide Oversight in Certain Negotiations
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.