Lessons to be learned from Harvard Pilgrim HMO's fiscal roller coaster ride

Journal of Law, Medicine and Ethics

Volumn 28, Issue 3, 2000, Pages 287-304

  Miller, Frances H ^a,b   Miller, Walter W ^a  

^a BOSTON UNIVERSITY   (United States)

^b BOSTON UNIVERSITY SCHOOL OF PUBLIC HEALTH   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; ECONOMIC ASPECT; ECONOMICS; FINANCIAL MANAGEMENT; HEALTH MAINTENANCE ORGANIZATION; HEALTH SERVICES RESEARCH; HUMAN; LEGAL ASPECT; NONBIOLOGICAL MODEL; ORGANIZATION AND MANAGEMENT; SOCIAL CONTROL; UNITED STATES;

BANKRUPTCY; ECONOMIC COMPETITION; FACILITY REGULATION AND CONTROL; FINANCIAL MANAGEMENT; HEALTH MAINTENANCE ORGANIZATIONS; HEALTH SERVICES RESEARCH; HUMANS; MASSACHUSETTS; MODELS, ORGANIZATIONAL;

EID: 0034281026     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2000.tb00673.x     Document Type: Article

References (173)

1. The Harvard Medical School provided seed money for the fledgling organization, from funds given to it by the Commonwealth Fund for that purpose. See "Harvard Community Health Plan, Inc., Harvard Community Health Plan - The First Decade" (1980).
2. Both the insurance and the care delivery functions were combined - vertically integrated - in the same corporate entity.
3. The 1998 ranking referred to "America's Best HMOs 1999" or the "1999 HMO Honor Role." See 1999 HMO Honor Role (visited September 12, 2000) . HP's stellar ranking was based in large part on the excellent reputation for quality of Harvard Community Health Plan, the staff model HMO from which HP evolved.
4. "How HMOs Measure Up: Our Fourth Annual Survey Ranks 100 of the Nation's Biggest Plans," Newsweek, November 8, 1999.
5. NCQA Health Plan Report Card (visited September 12, 2000) . The NCQA index defines suspended as "Indicates circumstances have caused NCQA to withdraw accreditation until NCQA completes a thorough investigation, and the plan takes corrective action."
6. NCQA reinstated accreditation after the receivership was lifted. See J.H. Powell, "Harvard Pilgrim Nears Profit," Boston Herald, June 28, 2000, at 35.
7. For general background, see J.H. Grossman, An Economic History of Health Care in Massachusetts (Pioneer Institute for Public Policy Research White Paper No. 11, June 2000).
8. See, for example, T. Emergy, "Kaiser to revamp operations as '98 losses calculated," Daily Hampshire Gazette, February 10, 1999.
9. See Harvard Pilgrim Health Care, A Few of the Milestones in Our Company History… (visited July 14, 2000) .
10. Id.
11. Id.
12. Id.
13. Id.
14. Id.
15. "Harvard Pilgrim Health Care Begins a Turnaround Plan," Harvard Pilgrim Press Release, July 28, 1999 (visited July 28, 2000) . Seven months after HP went into receivership, its membership had fallen dramatically to 950,000 subscribers. See J. Bandler, "Harvard Pilgrim Faces Crucial Test," Wall Street Journal, Aug. 30, 2000, at NE1, NE3.
16. "Harvard Pilgrim Health Care Begins a Turnaround Plan," Harvard Pilgrim Press Release, July 28, 1999 (visited July 28, 2000) . Seven months after HP went into receivership, its membership had fallen dramatically to 950,000 subscribers. See J. Bandler, "Harvard Pilgrim Faces Crucial Test," Wall Street Journal, Aug. 30, 2000, at NE1, NE3.
17. See M. Zuckoff, "An HMO in Crisis," Boston Globe, Jan. 9, 2000, at A1.
18. Harvard Pilgrim Health Plan Annual Report 1997, at 28. Not all of Harvard Pilgrim's business was at risk; it acted as third party administrator for a substantial number of self-insured plans as well.
19. See infra note 55.
20. See J. Vennochi, "Harvard Pilgrim's Fate is Still Up in the Air," Boston Globe, June 2, 2000, at A23.
21. Harvard Pilgrim announced in a letter to subscribers dated November 19, 1999, that it would pull out of the Rhode Island market as of December 31, 1999 (visited July 14, 2000) .
22. See L. Kowalczyk, "Judge Releases Harvard HMO from State Receivership," Boston Globe, May 25, 2000, at C1.
23. The Rhode Island Department of Business Regulation placed HP's operations there in receivership on October 25, 1999. See 8 Health Law Reporter (Nov. 4, 1999): 1760.
24. HP's CEO explained the errors by saying the plan's "disastrous miscalculations 'involved very small errors in very big numbers.'" R. Knox, "HMO Blames its Growth for '99 Losses," Boston Globe, Jan. 5, 2000, at A1.
25. See Harvard Pilgrim Health Care, Inc. and Affiliates Combined Statutory Financial Statements for the Year Ended December 31, 1999, at 4 (deficit of revenues over expenses) (hereinafter "HP Combined Financial Statements 1999").
26. See text accompanying infra note 91 et seq.
27. The following Massachusetts tertiary care teaching hospitals would be on anyone's list of cutting-edge medical institutions: Massachusetts General, Brigham & Women's, Beth Israel/ Deaconess, Children's Boston Medical Center, New England Medical Center, UMass/Memorial, St. Elizabeth's and Baystate Medical Center. E-mail communication from David Smith, Massachusetts Hospital Association, September 5, 2000 (on file with author F. Miller).
28. See A. Sager and D. Socolar, "The Real Cost of an HMO Cure," Boston Globe, Jan. 23, 2000 at G1 (chart accompanying article).
29. See F.H. Miller, "Antitrust Laws: Protecting Competition in an Era of Oversupply," 2 Massachusetts Medicine No. 3 (1987): 23-24, at 23.
30. 24.1 percent of the state's 108 hospitals closed during the period between 1988 and 1998, resulting in a 31 percent net reduction of inpatient beds over that same time period. See supra note 7.
31. Compare B.R. Furrow, T.L. Greaney, et.al., Health Law Cases, Materials and Problems, 3d ed., 795-96, (1997), discussing medical services utilization management.
32. Interview with Harvard Pilgrim quality assurance personnel (May 13, 1997) (notes on file with author F. Miller).
33. E. Convey, "Merger of 2 HMOs Promised Greatness, Fell Short," Boston Herald, Jan. 6, 2000, at 4.
34. See generally, Harvard Pilgrim Health Care Annual Report 1997 at 28, and compare the percentage increase in operating expenses for hospital (17.3 percent) and medical (11.9 percent) services between 1996 and 1997, with the percentage increase in premium 10.1 percent). This caused the plan's operating losses to more than double in that one year.
35. Factors Affecting Growth of Prescription Drug Expenditures (National Institute for Health Care Management, July 1999).
36. See Convey, supra note 32, at 15.
37. N. Wade, "Reading the Book of Life: The Overview; Genetic Code of Human Life Is Cracked by Scientists," New York Times, June 27, 2000, at A1.
38. See, generally, C.F. Collins, "Shattuck Lecture - The Medical and Societal Consequences of the Human Genome Project," N. Engl. J. Med., 341 (1999): 28-37. But compare N.A. Holtzman and T.M. Marteau, "Will Genetics Revolutionize Medicine?," N. Engl. J. Med., 343 (2000): 141-144.
39. See, generally, C.F. Collins, "Shattuck Lecture - The Medical and Societal Consequences of the Human Genome Project," N. Engl. J. Med., 341 (1999): 28-37. But compare N.A. Holtzman and T.M. Marteau, "Will Genetics Revolutionize Medicine?," N. Engl. J. Med., 343 (2000): 141-144.
40. "America is a perfectability of man society where illness and debility are seen as challenges to action and patients tend to be demanding consumers." R. Klein, "Rationing Health Care," 289 British Medical Journal (1985): 143-144, at 144.
41. J.E. Karns, "Direct Advertising of Prescription Drugs: the Duty to Warn and the Learned Intermediary Rule," 3 DePaul Journal of Health Care Law (2000): 273-291; T. Terzian, "Direct-to-Consumer Prescription Drug Advertising," American Journal of Law & Medicine, 25 (1999): 149-167; M. Freudenheim, "Influencing Doctors' Orders: Ads Help Sales of Prescription Drugs, but at What Cost?," New York Times, Nov. 16, 1998, at C1.
42. J.E. Karns, "Direct Advertising of Prescription Drugs: the Duty to Warn and the Learned Intermediary Rule," 3 DePaul Journal of Health Care Law (2000): 273-291; T. Terzian, "Direct-to-Consumer Prescription Drug Advertising," American Journal of Law & Medicine, 25 (1999): 149-167; M. Freudenheim, "Influencing Doctors' Orders: Ads Help Sales of Prescription Drugs, but at What Cost?," New York Times, Nov. 16, 1998, at C1.
43. J.E. Karns, "Direct Advertising of Prescription Drugs: the Duty to Warn and the Learned Intermediary Rule," 3 DePaul Journal of Health Care Law (2000): 273-291; T. Terzian, "Direct-to-Consumer Prescription Drug Advertising," American Journal of Law & Medicine, 25 (1999): 149-167; M. Freudenheim, "Influencing Doctors' Orders: Ads Help Sales of Prescription Drugs, but at What Cost?," New York Times, Nov. 16, 1998, at C1.
44. However, the Employee Retirement Income Security Act (ERISA), 29 USC §§1001-1461 (1994), supercedes any and all State laws [including state insurance law] insofar as they may . . . relate to any employee benefit plan. ERISA has been construed to apply to employer-provided health insurance, except when the employer self-insures the underwriting risk. ERISA-qualifying employee health insurance plans are thus exempt from state insurance regulation. See generally M. Farrell, "ERISA Preemption and Regulation of Managed Care," American Journal of Law & Medicine, XXIII (1997): 251-289.
45. The Federal government can also impose regulatory conditions on those health insurers doing business through the federal Medicare and Medicaid programs. 42 USC §1395, et seq. and 42 USC § 1396, et seq. And Congress also mandated the minimum length of maternity stays when it prohibited drive-through deliveries. See Newborns' and Mothers' Health Protection Act of 1996, 29 U.S.C.A. §§ 300gg-4, -51 (1996). Compare D.A. Hyman, "Drive-Through Deliveries: Is 'Consumer Protection' Just What the Doctor Ordered?" North Carolina Law Review 78 (1999): 5-99.
46. Mass. Gen. Laws Ann. ch. 176G (West 2000). J. Bandler, "Bay State HMOs Are Slow To Report Financial Data," Wall Street Journal, Sept. 13, 2000, NE1.
47. Personal conversation with John Larkin Thompson, former President of Massachusetts Blue Cross and Blue Shield (August 7, 2000) (notes on file with author F. Miller).
48. The statute defines an HMO as a company providing "health services to enrolled members in exchange primarily for a prepaid per capita or aggregate fixed sum . . . that demonstrate[s] to the satisfaction of the Commissioner its capability to protection against . . . the unavailability of covered services resulting from insolvency or bankruptcy . . . ." Mass. Gen. Laws Ann. ch. 176G, § 1 (added by St. 1976, c. 454, §6; amended by St. 1980, ch. 196; St. 1983, ch. 689).
49. Insurers also contract with providers to deliver these health care services.
50. Mass. Gen. Laws Ann. ch. 176G, supra note 44, at § 2.
51. Id. at § 16.
52. Harvard Pilgrim Health Care Annual Report 1997, at 26.
53. Id.
54. Harvard Pilgrim Health Care Annual Report 1999, at 28.
55. HP Combined Financial Statements 1999, at 1-2.
56. J.H. Powell, "Working on a Better Safety Net," Boston Sunday Herald, Mar. 12, 2000, at 33, 35.
57. "Massachusetts spends less than even the tiny Pacific territory of Guam on insurance regulation, and conducts fewer examinations than most on financial status or bad behavior. . . . The state Insurance Division's budget would have to be tripled to bring it in line with the national average . . . ," according to J.H. Powell, "Report: Insurance Regs Need $$, Boston Herald, April 20, 2000, at B1, commenting on a recently-released study by Nathaniel Orenstein for the Center for Insurance Research.
58. When regulators suggested tighter management practices, "Harvard Pilgrim's managers "were saying 'no, you don't have the authority,'" according to the Commissioner. J.H. Powell, supra note 52, at 33.
59. Peter Hiam, a former Commissioner of Insurance, observes, "If there had been more public awareness of . . . [Harvard Pilgrim's] operations, there would have been more chance that someone in the trade press or elsewhere would have brought attention to the problems before they became so acute." J. Bandler, "Bay State HMOs Are Slow To Report Financial Data," Wall Street Journal, Sept. 13, 2000, at NE1, NE3.]
60. Id. at NE1.
61. See infra note 91.
62. See Grossman, supra note 7, at 45.
63. An Act Relative to Managed Care Practices in the Insurance Industry, 2000 Mass. Acts 141.
64. Cal. Code Regs. tit. 10, c. 3, sub-c 5.5, art. 9 (Financial Responsibility), art. 11 (Examinations), art. 12 (Reports) (2000).
65. See California Department of Managed Health Care Library (visited September 12, 2000) .
66. Massachusetts' newly enacted managed care patients' bill of rights does make relatively minor regulatory changes, but is in no way a comprehensive reform of managed care insurer regulation. See An Act Relative to Managed Care Practices in the Insurance Industry, 2000 Mass. Acts 141.
67. See G.A. Jensen and M.A. Morrissey, "Employer-Sponsored Health Insurance and Mandated Benefits Laws," 77 The Milbank Quarterly, No. 4, 425 443-47 (1999).
68. See Mass. Gen. Laws Ann. ch. 175, § 47T (commercial insurers); Mass. Gen. Laws Ann. ch. 176A, § 8T and Mass. Gen. Laws Ann. ch. 176B, § 48 (Blue Cross and Blue Shield); and Mass. Gen. Laws Ann. ch. 176G, § 45 (HMOs).
69. See Mass. Gen. Laws Ann. ch. 175, § 47H (commercial insurers); Mass. Gen. Laws Ann. ch. 176A, § 8K (Blue Cross and Blue Shield); and Mass. Gen. Laws Ann. ch. 176B, § 4Q (HMOs).
70. Mass. Gen. Laws Ann. ch. 175, § 47R. See G. Kolata and K. Eichenwald, "Business Thrives on Unproven Care, Leaving Science Behind," New York Times, Oct. 3, 1999, at 1 (reporting on studies showing women with advanced breast cancer did just as well [i.e. poorly] when they had conventional chemotherapy as when they had the much more costly, risky and quality-of-[remaining] life-impairing bone marrow transplantation procedure).
71. Mass. Gen. Laws Ann. ch. 176G, § 4 (West 2000).
72. See supra note 63, at 445.
73. F. Sloan and C.J. Conover, "Effects of State Reforms on Health Insurance Coverage of Adults," 35 Inquiry 280 (1998) (one-fifth to one quarter of the uninsured lack coverage because of state mandates).
74. See supra note 7, at 45-6 (Appendix B: Insurer Moves/ Consolidations).
75. See "Nonprofits Rule" chart accompanying article, J. Bandler, "Massachusetts' HMO Woes Blamed on Nonprofit Glut," Wall Street Journal, Jan. 12, 2000, at NE1.
76. See supra note 7, at 45-6 (Appendix B: Insurer Moves/ Consolidations).
77. Id. Furthermore, HP held a 38.4 percent share of the HMO market. See "Critical Condition" chart accompanying article, F. Phillips, "Harvard Pilgrim in Receivership," Boston Globe, Jan. 5, 2000, at A1.
78. Kartell v. Blue Shield of Massachusetts, 749 F. 2d 922, 924, cert. den., 471 U.S. 1029 (1985).
79. United Health, Aetna, Well Point and Oxford Health were among those mentioned. See J. Bandler, "For-Profits Likely Suitors for HMO," Wall Street Journal, Jan. 19, 2000, at NE1; L. Kowalczyk, "HMO's Suitors Testing the Waters," Boston Globe, Feb. 27, 2000, at B1; Ruthardt v. Harvard Pilgrim, No. SJ-2000-003 (Mass. May 24, 2000) (order approving amended plan of rehabilitation and permanent injunction).
80. United Health, Aetna, Well Point and Oxford Health were among those mentioned. See J. Bandler, "For-Profits Likely Suitors for HMO," Wall Street Journal, Jan. 19, 2000, at NE1; L. Kowalczyk, "HMO's Suitors Testing the Waters," Boston Globe, Feb. 27, 2000, at B1; Ruthardt v. Harvard Pilgrim, No. SJ-2000-003 (Mass. May 24, 2000) (order approving amended plan of rehabilitation and permanent injunction).
81. Influential commentators have expressed philosophical objections to having the profit motive drive health service delivery. See, for example, A. Relman, "The New Medical-Industrial Complex," N. Engl. J. Med., 303 (1980): 963-970.
82. P. Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982).
83. R.A. Knox and S. Wilmsen, Options Weighed in Rescue of HMO, Boston Sunday Globe, January 16, 2000, A1
84. See, for example, J. Foreman, "Fear of Profits Is Grounded in Fact," Boston Globe, Jan. 21, 2000, at C1 (opinion piece); C. Stein, "For-Profit Tenet Seen as Front-Runner to Buy Metro-West," Boston Globe, May 1, 1998, at E1.
85. See, for example, J. Foreman, "Fear of Profits Is Grounded in Fact," Boston Globe, Jan. 21, 2000, at C1 (opinion piece); C. Stein, "For-Profit Tenet Seen as Front-Runner to Buy Metro-West," Boston Globe, May 1, 1998, at E1.
86. J. Bandler, "Do HMO Critics Practice What They Preach?," Mar. 1, 2000, Wall Street Journal, at NE1.
87. A. Pham, "Bill Filed to Ban Additional For-Profit Hospitals, HMOs," Boston Globe, Mar. 30, 1996, at 63.
88. 2000 Mass. Acts 141, § 28 (codified as amended at Mass. Gen. Laws Ann. ch. 180, § 8A by adding new subsection (d)(1)).
89. Four large not-for-profit insurers (Harvard Pilgrim, Blue Cross & Blue Shield, Tufts Affiliated Health Plans and Fallon Health Plan), and a small number of other non-profits control approximately 90 percent of the private health insurance market in Massachusetts. See chart cited supra note 71.
90. A notable exception is St. Vincent Hospital in Worcester (now renamed Worcester Medical Center), purchased by Tenet Healthcare Corporation in 1997, which was the site of a lengthy nurses' strike in the spring of 2000 because of allegedly inadequate staffing patterns. S. Helman, "Striking Nurses on Sidelines as St. Vincent Moves," Boston Globe, Apr. 4, 2000, at B1. The other for-profit acute care hospital is Metro-West Medical Center, located on two campuses in Framingham and Natick.
91. See infra text accompanying note 112.
92. Mass. Gen. Laws Ann. ch. 176G, §§ 21-22 (West 2000).
93. See generally, R.C. Clark, "Does The Nonprofit Form Fit the Hospital Industry?," Harvard Law Review, 93 (1980): 1417-1489.
94. See chart cited supra note 71. Moreover, several of the board members were HP insiders, with their own conflicts of interest.
95. A. Pham, "44 Brigham doctors to drop First Seniority. 389 more seniors to lose their primary-care physicians," Boston Globe, July 27, 1999 ("Kaiser Permanente . . . in June announced plans to exit the entire Northeast region. . . .")
96. "We created complexity for ourselves for ourselves on both sides," Harvard Pilgrim chief executive Charles Baker said [the day after the receivership was announced] . . . "In the end, the simpler your organization in this business, the better your chance to succeed." R.A. Knox, "HMO Blames Its Growth for '99 Losses," Boston Globe, Jan. 6, 2000, at A1.
97. See generally 1999 Mass. Acts 143 (codified as amended at Mass. Gen. Laws Ann. ch. 175-76 (West 2000)).
98. See Verified Complaint and Request for Appointment of Temporary Receiver, Ruthardt v. Harvard Pilgrim Health Care, Inc., No. SJ-2000-003 (Mass. Jan. 4, 2000); Ruthardt v. Harvard Pilgrim, No. SJ-2000-003 (Mass. Jan 4, 2000) (temporary injunction and order appointing temporary receiver); see also R.A. Knox, "Harvard Pilgrim in Receivership," Boston Globe, Jan. 5, 2000, at A1.
99. See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003 (Mass. May 24, 2000) (order approving amended plan of rehabilitation and permanent injunction).
100. Former Massachusetts governor and health care policy observer Michael Dukakis cautioned, "[a]ll the HMOs are in trouble. It's not just Harvard [Pilgrim]." M. Zuckoff, "An HMO in Crisis," Boston Globe, Jan. 9, 2000, at A1, A12.
101. See infra text at notes 147-48.
102. It is the duty of the Temporary Receiver to "tak[e] such measures as may be proper to eliminate the causes and conditions which caused the institution of [the receivership] proceeding," and the duty of the court to grant an application to terminate the proceeding if it is satisfied that "the purposes of the proceedings have been substantially accomplished." See Mass. Gen. Laws Ann. ch. 175, § 180B (West 2000). According to the Temporary Receiver and Attorney General, "these standards have been met" by the Plan of Rehabilitation submitted April 18, 2000: The Plan will significantly improve [HP]'s capital position, and [HP]'s Turnaround Plan is having an effect. . . . Contrary to [the consumer advocacy group] HCFA's suggestion, the fact that the 2000 Business Plan anticipates operating losses during the first half of 2000 does not indicate that [HP]'s operating issues have not been addressed. A comparison of the 1999 net operating losses ($226 million) to the 2000 results projected by the 2000 Business Plan (a net operating loss of $5.2 million) . . .reflects the marked improvements effected during late 1999 and the period of temporary receivership. . . . The purposes of the proceeding thus have been substantially accomplished, and [HP] should be released from receivership after the Plan is approved and implemented. HCFA's implicit suggestion that the receivership be extended indefinitely ignores the destabilizing effect of a long-term receivership on [HP]'s competitive position in the market. A prolonged receivership is not in the interests of HP, its members or the wider group of health care consumers. See Temporary Receiver's and Attorney General's Consolidated Response to Oppositions to Plan Approval Motion at 27-28, In re Rehabilitation of Harvard Pilgrim Health Care, Inc., No. SJ-2000-003 (Mass. Apr. 18, 2000) (hereinafter "Consolidated Response"). According to the CEO in December of 1999, HP was "hitting 95, 96, 97 percent of [their] milestones, week in and week out." The CEO felt that "less attention was being paid to the company's progress and more to peripheral issues that have little to do with its overall viability." J. Jette, "Insurance Regulator Quits Post, HMO Chief's Father Submits Resignation," The Patriot Ledger, Dec. 17, 1999, at 34. Throughout the rest of the article, the Attorney General and the Insurance Commissioner will be referred to as the "AG" and "IC", respectively.
103. See supra note 91.
104. The phrase "causes and conditions" became crucial when the plan ultimately proposed was challenged as not addressing these issues. See supra note 96; see also infra text at notes 131-132.
105. There is no single law governing receiverships nationwide. It is a remedy developed over the centuries first in the English equity courts and then here. Its purpose is to provide for either the orderly rehabilitation of the debtor or the liquidation of the debtor's assets. Although the receivership remedy was originally developed by the equity courts, today the remedy is more likely to be legislatively based on model or uniform acts. Even here, however, there is variety. No less than two uniform acts and one model act exist for the rehabilitation or liquidation of insurance companies alone. These acts form the basis for most modern state receivership statutes, including the Massachusetts statutes. Receivership also bears a resemblance to Chapter 11 of the federal Bankruptcy Code which itself evolved from a federal form of equity receivership that existed in the 19th century in the United States. See Uniform Insurers Liquidation Act (1939) [this act was adopted in Massachusetts in 1939]; Insurers Rehabilitation and Liquidation Model Act (IRLMA) (1978, amended 1990); Interstate Compact Uniform Receivership Law (URL) (1998); see also 11 U.S.C. §§ 1101-1174 (1994).
106. See 11 U.S.C. § 1123 (a) (5); see also IRLMA §§ 1D (2) and (3), 18E, 19A; URL § 505.
107. Attempts to sell HP as an entity were unsuccessful. No for-profit company was willing to assume HP's liabilities and no non-profit made an offer. See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003, at 9-10 (Mass. Mar. 3, 2000) (temporary receiver's second status report); see also R.A. Knox and L. Kowalczyk, "Report Shows Drawbacks of Selling Harvard Pilgrim," Boston Globe, Mar. 4, 2000, at A1; see also infra note 117 and accompanying text.
108. See Memorandum in Support of Amicus Curiae Health Care For All's Motion to Oppose the Temporary Receiver's and Attorney General's Motion for Approval of Plan of Rehabilitation or in the Alternative, to Amend the Plan of Rehabilitation at 2-3, In re Harvard Pilgrim, No. SJ-2000-003 (Mass. Apr. 10, 2000) (hereinafter "HCFA Memorandum"); see also Consolidated Response at 28-30, In re Harvard Pilgrim, No. SJ-2000-003 (Mass. Apr. 18, 2000). In defending their secrecy, the IC and AG cited Massachusetts statutes governing confidentiality. See Consolidated Response at 29. Two of the statutes they cited require, at a minimum, that any final report of any audit, examination or inspection, be made a public record. The statute also states: "Nothing herein shall be construed to prohibit the required production of such records, and information contained in the reports…before any court…." See Mass. Gen. Laws Ann. ch. 176G, § 10; see also Mass. Gen. Laws Ann. ch. 175, § 4 (12). Furthermore, the other statute they cited favors a higher degree of disclosure in the interest of the public: "The commissioner may open the proceedings or hearings or make public the notices, correspondence, reports, records or other information if the commissioner deems that it is in the best interest of the public or in the best interest of the insurer, its insureds, creditors or the general public." See Mass. Gen. Laws Ann. ch. 175J, § 6 (D).
109. See R.A. Knox and S. Wilmsen, "13 Potential Investors Take Look at HMO," Boston Globe, Jan. 26, 2000, at C1.
110. See 11 U.S.C. § 1125.
111. URL § 802 (A) (3).
112. See 11 U.S.C. §§ 1123, 1129 (a) (8) and (b) (1).
113. See sources cited supra note 99.
114. See 11 U.S.C. §§ 1129 (a) (11), 1124, 1125; see also IRLMA § 18E.
115. See Mass. Gen. Laws Ann. ch. 175, §§ 6, 180B; see also URL § 501; IRLMA § 21 (D).
116. See 11 U.S.C. § 1104.
117. Division of Insurance staff had been working closely with HP employees since October of 1998, which prompted critics to complain that the IC did too little, too late. The IC responded, claiming a lack of an audience in HP management and a lack of authority prior to the enactment of the Massachusetts HMO rehabilitation statute in November of 1999. Stephen Rosenfeld, legal director of the public interest law firm, Health Law Advocates, noted that while "HMOs have been largely unregulated," he expressed his concern that "the commissioner would have been extensively on the scene and kept that secret. Both providers and members rely on the commissioner to protect their interests and she decided it was in their best interest to keep it secret and that just doesn't wash with me." J.H. Powell, "Working on a Better Safety Net," Boston Herald, Mar. 12, 2000, at 33. Sen. Mark Montigny, (D-New Bedford), chairman of the Ways and Means Committee, agreed that the IC should have been more open about their heightened oversight of HP before the receivership, saying, "There is nothing more overriding than the public interest. The best way you can keep the public from overreacting is to be as transparent as possible." J.H. Powell, "Regulators Holding Up HMO Plan," Boston Herald, Mar. 10, 2000, at 27, 30. See also J. Bandler, "Bay State HMOs Are Slow To Report Financial Data," Wall Street Journal, Sept. 13, 2000, at NE1. The article describes not only Massachusetts HMOs' lax reporting but also the current IC's refusal to disclose key financial information to the public because it was confidential. A former Insurance Commissioner, urging that information be made public, termed this reasoning "nonsensical." Id. at NE3.
118. Division of Insurance staff had been working closely with HP employees since October of 1998, which prompted critics to complain that the IC did too little, too late. The IC responded, claiming a lack of an audience in HP management and a lack of authority prior to the enactment of the Massachusetts HMO rehabilitation statute in November of 1999. Stephen Rosenfeld, legal director of the public interest law firm, Health Law Advocates, noted that while "HMOs have been largely unregulated," he expressed his concern that "the commissioner would have been extensively on the scene and kept that secret. Both providers and members rely on the commissioner to protect their interests and she decided it was in their best interest to keep it secret and that just doesn't wash with me." J.H. Powell, "Working on a Better Safety Net," Boston Herald, Mar. 12, 2000, at 33. Sen. Mark Montigny, (D-New Bedford), chairman of the Ways and Means Committee, agreed that the IC should have been more open about their heightened oversight of HP before the receivership, saying, "There is nothing more overriding than the public interest. The best way you can keep the public from overreacting is to be as transparent as possible." J.H. Powell, "Regulators Holding Up HMO Plan," Boston Herald, Mar. 10, 2000, at 27, 30. See also J. Bandler, "Bay State HMOs Are Slow To Report Financial Data," Wall Street Journal, Sept. 13, 2000, at NE1. The article describes not only Massachusetts HMOs' lax reporting but also the current IC's refusal to disclose key financial information to the public because it was confidential. A former Insurance Commissioner, urging that information be made public, termed this reasoning "nonsensical." Id. at NE3.
119. Division of Insurance staff had been working closely with HP employees since October of 1998, which prompted critics to complain that the IC did too little, too late. The IC responded, claiming a lack of an audience in HP management and a lack of authority prior to the enactment of the Massachusetts HMO rehabilitation statute in November of 1999. Stephen Rosenfeld, legal director of the public interest law firm, Health Law Advocates, noted that while "HMOs have been largely unregulated," he expressed his concern that "the commissioner would have been extensively on the scene and kept that secret. Both providers and members rely on the commissioner to protect their interests and she decided it was in their best interest to keep it secret and that just doesn't wash with me." J.H. Powell, "Working on a Better Safety Net," Boston Herald, Mar. 12, 2000, at 33. Sen. Mark Montigny, (D-New Bedford), chairman of the Ways and Means Committee, agreed that the IC should have been more open about their heightened oversight of HP before the receivership, saying, "There is nothing more overriding than the public interest. The best way you can keep the public from overreacting is to be as transparent as possible." J.H. Powell, "Regulators Holding Up HMO Plan," Boston Herald, Mar. 10, 2000, at 27, 30. See also J. Bandler, "Bay State HMOs Are Slow To Report Financial Data," Wall Street Journal, Sept. 13, 2000, at NE1. The article describes not only Massachusetts HMOs' lax reporting but also the current IC's refusal to disclose key financial information to the public because it was confidential. A former Insurance Commissioner, urging that information be made public, termed this reasoning "nonsensical." Id. at NE3.
120. See 1999 Mass. Acts 143, § 7 (codified as amended at Mass. Gen. Laws Ann. ch. 176G, § 22) (West 2000).
121. See 1999 Mass. Acts 143, § 3 (codified as amended at Mass. Gen. Laws Ann. ch. 175, § 110 (N) (2) (a) (West 2000)), § 5 (codified as amended at Mass. Gen. Laws Ann. ch. 176A, § 33 (b) (1) (West 2000)), § 6 (codified as amended at Mass. Gen. Laws Ann. ch. 176B, § 21 (b) (1) (West 2000)), § 7 (codified as amended at Mass. Gen. Laws Ann. ch. 176G, § 23 (b) (1) (West 2000)).
122. See "Massachusetts Officials Strip Harvard Pilgrim Officers of $1.3 Million in Severance Pay," 4 No. 2 Mealey's Managed Care Liability Report 9 (January 28, 2000).
123. The computer firm, Perot Systems Corp., had been hired to overhaul HP's fragmented computer accounting systems. See R.A. Knox and S. Wilmsen, "Options Weighed in HMO Rescue," Boston Globe, Jan. 16, 2000, at A1, A17; see also S. Wilmsen, "HMO Accounting Shift Tied to Woes," Boston Globe, Jan. 22, 2000, at A1, A8.
124. The computer firm, Perot Systems Corp., had been hired to overhaul HP's fragmented computer accounting systems. See R.A. Knox and S. Wilmsen, "Options Weighed in HMO Rescue," Boston Globe, Jan. 16, 2000, at A1, A17; see also S. Wilmsen, "HMO Accounting Shift Tied to Woes," Boston Globe, Jan. 22, 2000, at A1, A8.
125. Speculation about potential buyers included non-profit Massachusetts HMO Blue Cross Blue Shield or for-profit out-of-state based HMOs such as Cigna Group, Wellpoint Health Networks, United Health Care or Aetna. See S. Wilmsen and R.A. Knox, "State Eyes Possible HMO Sale," Boston Globe, Jan. 14, 2000 at C1, C9.
126. See Affidavit of Linda L. Ruthardt at 9, In re Harvard Pilgrim, No. SJ-2000-003 (Mass. Mar. 20, 2000). "One large not-for-profit . . . discussed a potential acquisition. This company ultimately presented another type of proposal to purchase surplus notes that required that the Commonwealth offer substantial inducements. The Attorney General and I declined that proposal." Id. at 9-10.
127. "[T]he potential investors ultimately advised they were not interested in the surplus notes as proposed. A large group of potential not-for-profit investors responded by conditioning a potential purchase on a full guaranty of the surplus notes by the Commonwealth, and a number of other governmental inducements." Id. at 11.
128. See id. at 10-11. A surplus note's interest and principal are not payable without the express approval of the Insurance Commissioner. The note is not in default if interest and principal are not paid on time. Payment of "surplus" notes is made only after all other obligations given priority in the plan are satisfied. The use of the word "surplus" note is at best a misnomer and at worst an oxymoron. In so far as the word "note" refers to a negotiable promissory note, as that term is defined in the Uniform Commercial Code section 3-104 (a), (b) and (e), the word refers to an unconditional obligation to pay a sum certain in money at a definite time. A "surplus" note is conditional on all other obligations first being paid; there is no definite time of payment; and while in theory the sum involved is definite, because it is obvious and anticipated that the note may never be paid in full there is no fixed sum of money.
129. State regulators seeking a $175 million "investment" from hospitals, Harvard University, and other investors requested them to sign the "10-year high-risk" surplus notes with the intention that HP pay the notes back with interest, according to a confidential memo obtained by the Boston Globe. However, cash-needy hospitals, including UMass Memorial Health Care, the state's second largest provider network, could not and did not accept the rescue plan. See L. Kowalczyk and R.A. Knox, "Regulators Seek $225 m to Aid HMO," Boston Globe, Feb. 9, 2000, at A1. Potential buyers were wary, only expressing interest in purchasing HP's assets. No for-profit company was willing to assume HP's presumed $150 million in 1999 liabilities. See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003, at 9, par. 14 (Mass. Mar. 3, 2000) (temporary receiver's second status report); see also R.A. Knox and L. Kowalczyk, "Report Shows Drawbacks of Selling Harvard Pilgrim," Boston Globe, Mar. 4, 2000, at A1. In early January of 2000, the debt owed by HP to local hospitals was reported to be $300 million. See Knox and Wilmsen, infra note 147.
130. State regulators seeking a $175 million "investment" from hospitals, Harvard University, and other investors requested them to sign the "10-year high-risk" surplus notes with the intention that HP pay the notes back with interest, according to a confidential memo obtained by the Boston Globe. However, cash-needy hospitals, including UMass Memorial Health Care, the state's second largest provider network, could not and did not accept the rescue plan. See L. Kowalczyk and R.A. Knox, "Regulators Seek $225 m to Aid HMO," Boston Globe, Feb. 9, 2000, at A1. Potential buyers were wary, only expressing interest in purchasing HP's assets. No for-profit company was willing to assume HP's presumed $150 million in 1999 liabilities. See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003, at 9, par. 14 (Mass. Mar. 3, 2000) (temporary receiver's second status report); see also R.A. Knox and L. Kowalczyk, "Report Shows Drawbacks of Selling Harvard Pilgrim," Boston Globe, Mar. 4, 2000, at A1. In early January of 2000, the debt owed by HP to local hospitals was reported to be $300 million. See Knox and Wilmsen, infra note 147.
131. The estimated loss over gain for 1999 was finally set at $100 million, according to the IC and AG. A $226 million outgo was matched by income of about $126m for one year alone. The apparent total debt could not be covered by the significant assets held by HP. Like everything else, no hard figures appear either in press releases or in court filings by the receiver. See Amended Plan of Rehabilitation for Harvard Pilgrim Health Care, Inc. and Harvard Pilgrim Health Care of New England, Inc. at 2-3, In re Harvard Pilgrim, No. SJ-2000-003 (Mass. Apr. 18, 2000) (hereinafter "Amended Plan"). News reports vary as to even the total 1999 losses, with a high of $228 million reported by the Wall Street Journal. Add to that figure the 1998 losses of $54 million and expected 2000 losses of more than $5 million. See J. Bandler, "Harvard HMO Is Likely to Get Smaller Board," Wall Street Journal, June 14, 2000, at NE4. See also HP Combined Financial Statements 1999, at 1.
132. HP and/or the IC are apparently quite sensitive to possibilities such as loss of subscribers. HP filed for receivership on January 4, 2000 right after 40 percent of HP subscribers had just renewed their annual contracts on January 1, despite rate increases and HP's abandonment of its Rhode Island operations. Another 200,000 of HP's million plus members had contracts that expired June 30, 2000. See R.A. Knox and S. Wilmsen, "Time Critical to Future of Ailing HMO," Boston Globe, Jan. 7, 2000, at A1. The HMO was taken out of receivership just in time, on June 21, 2000. See J.H. Powell, "Group Says Judge Mistook HMO Law," Boston Herald, June 22, 2000, at 32. On August 20, 2000, the Wall Street Journal reported that Blue Cross Blue Shield was making "a strong push" for the 45 percent of HP membership due for renewal. In addition, the Journal reported that HP's membership had "fallen steeply - to around 950,000 members . . . down 25 percent from December." See J. Bandler, "Harvard Pilgrim Faces Crucial Test," Wall Street Journal, Aug. 30, 2000, at NE1, NE3.
133. HP and/or the IC are apparently quite sensitive to possibilities such as loss of subscribers. HP filed for receivership on January 4, 2000 right after 40 percent of HP subscribers had just renewed their annual contracts on January 1, despite rate increases and HP's abandonment of its Rhode Island operations. Another 200,000 of HP's million plus members had contracts that expired June 30, 2000. See R.A. Knox and S. Wilmsen, "Time Critical to Future of Ailing HMO," Boston Globe, Jan. 7, 2000, at A1. The HMO was taken out of receivership just in time, on June 21, 2000. See J.H. Powell, "Group Says Judge Mistook HMO Law," Boston Herald, June 22, 2000, at 32. On August 20, 2000, the Wall Street Journal reported that Blue Cross Blue Shield was making "a strong push" for the 45 percent of HP membership due for renewal. In addition, the Journal reported that HP's membership had "fallen steeply - to around 950,000 members . . . down 25 percent from December." See J. Bandler, "Harvard Pilgrim Faces Crucial Test," Wall Street Journal, Aug. 30, 2000, at NE1, NE3.
134. HP and/or the IC are apparently quite sensitive to possibilities such as loss of subscribers. HP filed for receivership on January 4, 2000 right after 40 percent of HP subscribers had just renewed their annual contracts on January 1, despite rate increases and HP's abandonment of its Rhode Island operations. Another 200,000 of HP's million plus members had contracts that expired June 30, 2000. See R.A. Knox and S. Wilmsen, "Time Critical to Future of Ailing HMO," Boston Globe, Jan. 7, 2000, at A1. The HMO was taken out of receivership just in time, on June 21, 2000. See J.H. Powell, "Group Says Judge Mistook HMO Law," Boston Herald, June 22, 2000, at 32. On August 20, 2000, the Wall Street Journal reported that Blue Cross Blue Shield was making "a strong push" for the 45 percent of HP membership due for renewal. In addition, the Journal reported that HP's membership had "fallen steeply - to around 950,000 members . . . down 25 percent from December." See J. Bandler, "Harvard Pilgrim Faces Crucial Test," Wall Street Journal, Aug. 30, 2000, at NE1, NE3.
135. Two other major Massachusetts HMOs, Tufts Health Plan and Fallon Community Health Plan, also posted large 1999 losses: $41.8 million and $12.8 million, respectively. See L. Kowalczyk, "Two More HMOs in State Post Big '99 Losses," Boston Globe, Mar. 1, 2000, at C1. Concern spread about whether these HMOs, of questionable financial vitality, and others could absorb hundreds of thousands of new members. A transition period of four to six months would be necessary, according to a senior VP for Tufts Health Plan. See J.H. Powell and E. Convey, "State Plans for Worst with HMO," Boston Herald, Jan. 12, 2000, at 33.
136. Two other major Massachusetts HMOs, Tufts Health Plan and Fallon Community Health Plan, also posted large 1999 losses: $41.8 million and $12.8 million, respectively. See L. Kowalczyk, "Two More HMOs in State Post Big '99 Losses," Boston Globe, Mar. 1, 2000, at C1. Concern spread about whether these HMOs, of questionable financial vitality, and others could absorb hundreds of thousands of new members. A transition period of four to six months would be necessary, according to a senior VP for Tufts Health Plan. See J.H. Powell and E. Convey, "State Plans for Worst with HMO," Boston Herald, Jan. 12, 2000, at 33.
137. Largely praised for his performance as self-appointed manager of the HP crisis, the AG stole the spotlight. He was "all over the case, controlling information, calming jittery creditors, commanding consultants, and inveighing against a state bailout as 'a reward for bad business decisions.'" See R.A. Knox, "Reilly Grabbing Harvard Pilgrim Crisis by Horns, Winning Plaudits from All Sides," Boston Globe, Jan. 21, 2000, at C1.
138. In fact, payment of HP's outstanding loan obligations dating from a 1998 agreement are provided for in the Plan of Rehabilitation. The payments become subject to the IC's approval; however, the bonds "remain payable as to principal and interest in accordance with their original tenor. . . and the terms of the bonds are hereby expressly reaffirmed." See Amended Plan at 7.
139. According to the Amended Plan, "[i]n the event that the Commissioner does not approve any such payment under a Surplus Note, the date of such payment will be extended until such time, if any, that the approval condition is met. . . ." See id. at 6 (emphasis supplied). Although hospitals have a priority and therefore are paid prior to general unsecured creditors, the priority is a fourth one. Three other classifications of creditors must be paid before hospitals. See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003, at 3-5 (Mass. May 24, 2000) (order approving amended plan of rehabilitation and permanent injunction). See also 1999 Mass. Acts 143, § 7 (codified as amended at Mass. Gen. Laws Ann. ch. 176G, § 20 (West 2000)). In addition, all priorities in the event of liquidation can only be paid from assets not held by the debtor as collateral for secured debts. At the time the court confirmed the Amended Plan of Rehabilitation, one of HP's creditors received a "first priority security interest" in $29 million of previously unencumbered assets of the debtor in exchange for releasing its hold on $46 million in cash in which it was claiming a security interest. See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003, at Exhibit A, p. 2 (settlement agreement) and at Attachment to Exhibit A (mortgage and assignment of leases) (Mass. May 24, 2000) (order approving settlement agreement). Although its right to claim an interest in this cash was disputed, the court approved this settlement. See id. Because HP without doubt intends to use the cash, this means that assets presumably otherwise free of lien and available for priority and unsecured creditors are now held as collateral for this secured creditor. According to the Amended Plan, however, the creditor that received this security interest is pari passu with holders of surplus notes. See Amended Plan at 7. Holders of surplus notes are at the very bottom of the priority ladder. They are subordinate not only to priorities but also to other unsecured creditors who were not issued such notes in satisfaction of their debts. See Amended Plan at 6. The settlement agreement was apparently negotiated for months before the Amended Plan was approved and was itself approved by the court on the same day as the Amended Plan. See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003, at Exhibit A, p. 2 (settlement agreement) (Mass. May 24, 2000) (order approving settlement agreement). The bottom line is that an unsecured creditor became secured simultaneously with the approval of a plan that said the creditor was unsecured.
140. An interesting procedural and jurisdictional issue was raised by this requirement. In essence, the New Hampshire (NH) provider was saying that the Massachusetts court's injunctive powers could not cross state lines. The Attorney General and later the court took the position that the NH provider was subject to Massachusetts court orders first because NH and Massachusetts had reciprocal statutes intended to promote centralized proceedings in the insurer's domiciliary state (Massachusetts) and second, simple comity between neighboring states would result in NH court action to enforce Massachusetts injunctive orders if that became necessary. See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003, at 4 (Mass. May 24, 2000) (memorandum of decision on objections to the amended plan of rehabilitation). As this article goes to press, the hospital has apparently capitulated.
141. Until HP has a Statutory Net Worth of at least $130 million after satisfaction of all amounts due under the Surplus Notes and termination of the conditions of the Amended Plan, the IC and AG proposed that a permanent injunction shall enjoin "all claims, suits, actions or other proceedings against [HP] concerning, arising from, relating to, or seeking to establish General Unsecured Obligations or Loan Obligations to be filed with the Court." See Amended Plan at 10. The judge's order approved the amended plan, stating that "until entry of a further order . . . all persons with claims against [HP] arising from, relating to or seeking to establish obligations or asserted obligations of [HP] existing prior to entry of the Receivership Order on January 4, 2000, whose claim is or may be a General Unsecured Claim, are hereby permanently enjoined and restrained from instituting any suit, action or other proceeding against [HP], their directors, officers, employees or agents, or against the Commissioner (as Commissioner or Temporary Receiver), or her employees or agents, arising from, relating to or seeking to establish that claim except by a filing with this Court, which may transfer the claim to another court if appropriate. . . ." See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003, at 7-8 (Mass. May 24, 2000) (order approving amended plan of rehabilitation and permanent injunction). On June 21, 2000, in the Order Dismissing Proceeding, Vacating Temporary Injunction, and Discharging Temporary Receiver, the judge specified that "the Order Approving Amended Plan of Rehabilitation and Permanent Injunction entered May 24, 2000, including but not limited to the permanent injunctions . . . of that Order [barring creditors from filing suits against HP], shall continue in full force and effect." See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003, at 1-2 (Mass. May 24, 2000) (order dismissing proceeding, vacating temporary injunction, and discharging temporary receiver).
142. See Consolidated Response at 28-29. "If HCFA - an advocacy group - were entitled to obtain detailed information concerning the operations and financial plans and projections of companies in receivership, then so would other interested persons, including competitors such as Blue Cross." Id. at 29.
143. See Amended Plan at 4. As reported in the Boston Globe, as a result of this and other accounting steps, HP would acquire the appearance of solvency. See L. Kowalczyk and R.A. Knox, "Strong Results Let HMO Stay Nonprofit, State Says," Boston Globe, Mar. 3, 2000, at A1.
144. "The only information before the Court upon which to determine whether HPHC is in good operating order are four hearsay references to documents not before the [C]ourt for independent review and a conclusory opinion of the Insurance Commissioner based on one month of operating results." HCFA Memorandum at 2, In re Harvard Pilgrim, No. SJ-2000-003 (Mass. Apr. 10, 2000). The judge declared that "[t]he Commissioner's opinion is itself proper evidence, and she may base it upon undisclosed facts, provided those facts are independently admissible," citing Department of Youth Services v. A Juvenile, 398 Mass. 516, 532 (1986). The judge went on to say that, "There is no showing that the data and reports in question, or the testimony of those who prepared them, is not admissible. . . . Further, there is nothing inherently suspect about the Commissioner's opinion, and there is substantial basis to believe that her opinion is credible." See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003, at 8 (Mass. May 24, 2000) (memorandum of decision on objections to the amended plan of rehabilitation).
145. See J.H. Powell, "Group Says Judge Mistook HMO Law," Boston Herald, June 22, 2000, at 32.
146. See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003 (May 24, 2000) (memorandum of decision on objections to the amended plan of rehabilitation) (hereinafter "Court Memorandum"). In the Court Memorandum, the court stated, "[t]he very nature of these [receivership] proceedings is such that contract rights necessarily will be affected. See Chicago Life Ins. Co. v. Needles, 113 U.S. 574, 582-584 (1885); Mercado-Boneta v. Administration del Fondo de Compensacion al Paciente, 125 F.3d 9, 16-18 (1st Cir. 1997). 'An impairment will be upheld if it is reasonable and necessary to serve an important public purpose.' Nationwide Ins. Co. v. Commissioner of Ins., 397 Mass. 416, 423 (1986). The priorities created by [Massachusetts General Laws chapter 175] § 180F are reasonable and necessary to serve the important public purpose of protecting the members of HMOs and more broadly the health care system by giving priority to member and provider claims." Court Memorandum at 2. In addition, the court went on to state that creditors challenging the plan do not have the right to force liquidation of HP, "as they do not have a constitutional right to any particular form of remedy so long as the result provides them with what they would have received in a liquidation," citing Neblett v. Carpenter, 305 U.S. 297, 303-05 (1938). Court Memorandum at 3. In their Consolidated Response, the IC and AG had cited Neblett for the position that so long as the claimants who will receive surplus notes get what they would get in a liquidation, they cannot complain. According to the IC and AG, the creditors "fail to recognize that the choice is not between full payment and a surplus note, but instead between a surplus note and the results of liquidation" and these particular creditors are of the class which "would bear the entire loss in a liquidation." Consolidated Response at 10, In re Harvard Pilgrim, No. SJ-2000-003 (Mass. Apr. 18, 2000) (emphasis in original). The IC's and AG's position, therefore, is that because "liabilities exceed . . . assets," general unsecured creditors might get nothing if HP were liquidated. Thus, their claims could be essentially value-less and any distribution made in any way satisfies the requirements of the law. Neblett, however, does not quite say that and in any event, the circumstances in Neblett are remote from those in the HP case. In Neblett, the Court had no record before it because the case came up with only the judgment roll. Therefore, the Justices accepted all assertions of fact made by the Insurance Commissioner as accurate. One such assertion was that complaining
147. See International Shoe v. Pinkus, 278 U.S. 261 (1929); see also In re Newport Offshore Ltd., 219 B.R. 341 (Bankr. D.R.I. Feb. 9, 1998). See also D. Tatge, "Triage for Troubled HMOs," 36 Bankruptcy Court Decisions (LRP), No. 8, at A9-A17 (Aug. 1, 2000), for an interesting and informative discussion of the ability of an HMO to discharge claims.
148. See 11 U.S.C. § 524 (a) (2) and (3).
149. See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003 (Mass. May 24, 2000) (order approving amended plan of rehabilitation and permanent injunction).
150. See Ruthardt v. Harvard Pilgrim, No. SJ-2000-003, at 3 (Mass. May 24, 2000) (memorandum of decision on objection to the amended plan of rehabilitation); see also supra note 126.
151. See U.S. Const. art. I, § 10 and U.S. Const. art. I, § 8, cl. 4. 139. 278 U.S. 261 (1929).
152. See 11 U.S.C. 1129 (a) (7) (A).
153. See Memorandum at 3, supra note 133.
154. According to the HP Finance Department's own Financial Statements/Balance Sheet, HP's total assets as of December 31, 1999, neared $750 million. Two months later, the total assets were valued at $650 million. See Affidavit of Linda L. Ruthardt at Exhibit F, In re Harvard Pilgrim, No. SJ-2000-003 (Mass. Apr. 18, 2000). Based on HP's own financial statements, PricewaterhouseCoopers prepared an audit report. Pricewaterhouse "conducted [their] audit in accordance with auditing standards generally accepted in the United States." According to the report, however, "[HP] prepared these financial statements using accounting practices prescribed or permitted by The Commonwealth of Massachusetts, Division of Insurance, which practices differ from accounting principles generally accepted in the United States." In fact, the report states the accounting firm's opinion that "[HP's] financial statements . . . do not present fairly, in conformity with generally accepted accounting principles, the financial position of HP as of December 31, 1999, or the results of its operations and changes in statutory net worth, or its cash flows for the year then ended." "Report of Independent Accountants," HP Combined Financial Statements 1999, at 1 (May 24, 2000) (emphasis supplied).
155. Disclosure is the keystone of Chapter 11. See 11 U.S.C. § 1125. Under this section, the total amount of debt must be disclosed. Also, appraisals are essential in all complex reorganizations. See also House Rep. No. 95-595, 95th Congr., 1st Sess., 408 (1977). They are also necessary to fulfill the mandate of 11 U.S.C. §§ 1129 (a) (7) (A) (ii) and 1129 (b) (1).
156. The Wall Street Journal reported the following financial data: HP's "cash on hand" dropped 63 percent since December 1999, from $298 million, to $200 million (1st quarter 2000), to $145 million (2nd quarter 2000), to $110 million as of August 30, 2000. See Bandler, supra note 122.
157. According to the IC, liquidation of HP would "likely result in a loss to creditors significantly in excess of the $100 million plus recent operating losses. . . . Liquidation is also undesirable because it would significantly disrupt the provision of health care service and coverage in the Commonwealth and neighboring states . . . . [The] members would have to find other coverage or be allocated to other health maintenance organizations and plans. The provider network in place to serve [HP] members, including 143 hospitals, over 6,000 physicians, over 18,000 specialists, and numerous other health care providers in Massachusetts, Maine and New Hampshire would cease to exist." See Affidavit of Linda L. Ruthardt at 14-15, In re Harvard Pilgrim, No. SJ-2000-003 (Mass. Mar. 20, 2000). See also supra note 51 and accompanying text.
158. See R.A. Knox, "Harvard Pilgrim in Receivership," Boston Globe, Jan. 5, 2000, at A1. On December 7, 1999, a $147 million bond package was approved by the Massachusetts Housing and Education Facilities Authority (HEFA). News reports in December were eerily prophetic: "While HP denies the bond package is a bail-out, it concedes the cash is crucial to turning itself around and helping avert a potential health insurance crisis in the Bay State." Even HP CEO Charles Baker admitted the bond deal came at a " critical time in [HP's] corporate history." J.M. Gangloff, "Bay State Tosses Harvard Pilgrim a $147 Million Life Preserver," insure.com: The Consumer Insurance Guide, (last updated Dec. 10, 1999) .
159. See R.A. Knox, "Harvard Pilgrim in Receivership," Boston Globe, Jan. 5, 2000, at A1. On December 7, 1999, a $147 million bond package was approved by the Massachusetts Housing and Education Facilities Authority (HEFA). News reports in December were eerily prophetic: "While HP denies the bond package is a bail-out, it concedes the cash is crucial to turning itself around and helping avert a potential health insurance crisis in the Bay State." Even HP CEO Charles Baker admitted the bond deal came at a " critical time in [HP's] corporate history." J.M. Gangloff, "Bay State Tosses Harvard Pilgrim a $147 Million Life Preserver," insure.com: The Consumer Insurance Guide, (last updated Dec. 10, 1999) .
160. In early January, the Massachusetts Hospital Association approximated local hospital claims against HP at $300 million. See R.A. Knox and S. Wilmsen, "State Backs off Timetable for HMO Rescue," Boston Globe, Jan. 8, 2000, at A1, B5. When Bay State Health Care collapsed in 1992, local hospitals had to write off $50m, or 30 percent, of the amount owed to them by Bay State. According to the Massachusetts Hospital Association, local hospitals "have no room to absorb losses." C. Stein, "Four Scenarios for a Solution," Boston Globe, Jan. 6, 2000, at A19.
161. In early January, the Massachusetts Hospital Association approximated local hospital claims against HP at $300 million. See R.A. Knox and S. Wilmsen, "State Backs off Timetable for HMO Rescue," Boston Globe, Jan. 8, 2000, at A1, B5. When Bay State Health Care collapsed in 1992, local hospitals had to write off $50m, or 30 percent, of the amount owed to them by Bay State. According to the Massachusetts Hospital Association, local hospitals "have no room to absorb losses." C. Stein, "Four Scenarios for a Solution," Boston Globe, Jan. 6, 2000, at A19.
162. In June, the president of the Massachusetts Hospital Association reported, "We are eating the seed corn and we are mortgaging our future." As revenues continued to decline and margins continued in the red for the 14th straight quarter, local hospitals predictably sought greater taxpayer subsidies. See J.H. Powell, "Investments, Donations Keeping Hospitals Afloat," Boston Herald, June 3, 2000, at 22. As early as March, anticipating an unfavorable reaction to a taxpayer bailout plan, Governor Cellucci filed legislation asking the state legislature to set aside $90 million from a fund established in 1988 for uninsured citizens to provide low-interest emergency loans to struggling local health care providers, including nonprofit hospitals, nursing homes and clinics. See L. Kowalczyk, "Cellucci Eyes $90m in Loans to Health Units," Boston Globe, Mar. 7, 2000, at A1, A14; see also supra note 145, and the IC's expressed concern about Massachusetts health care providers, and note 147.
163. In June, the president of the Massachusetts Hospital Association reported, "We are eating the seed corn and we are mortgaging our future." As revenues continued to decline and margins continued in the red for the 14th straight quarter, local hospitals predictably sought greater taxpayer subsidies. See J.H. Powell, "Investments, Donations Keeping Hospitals Afloat," Boston Herald, June 3, 2000, at 22. As early as March, anticipating an unfavorable reaction to a taxpayer bailout plan, Governor Cellucci filed legislation asking the state legislature to set aside $90 million from a fund established in 1988 for uninsured citizens to provide low-interest emergency loans to struggling local health care providers, including nonprofit hospitals, nursing homes and clinics. See L. Kowalczyk, "Cellucci Eyes $90m in Loans to Health Units," Boston Globe, Mar. 7, 2000, at A1, A14; see also supra note 145, and the IC's expressed concern about Massachusetts health care providers, and note 147.
164. See supra notes 120-21 and 147.
165. See supra note 111.
166. The duration of the Administrative Supervision order issued by the Insurance Commissioner is expected to be at least 2 years. See Office of Attorney General Press Release (Mar. 20, 2000) . Administrative Supervision takes place as a sort of half-way house for recovering businesses. Businesses not quite ready to stand on their own feet but not needing to be operated by an outside receiver are given the advice and encouragement, and the control, of the Insurance Commissioner. See also supra note 111.
167. See supra text and notes at notes 3-4.
168. See supra text and notes at notes 64-66.
169. Front-page newspaper reports of 10-20 percent health insurance premium hikes recently appeared in early September. See, for example, M. Freudenheim, "HMO Costs Spur Employers To Shift Plans," New York Times, Sept. 6, 2000, at A1, A22.
170. See E. Carr, "Federal Aid to Troubled Thrifts," The Savings Banker, Feb. 1982, at 2. FDIC: The S & L Crisis: A Chrono-Bibliography . Repercussions continued well into the late 1990s with lawsuits based on claims that the U.S. Congress' flip-flops on policy resulted in breaches of contracts by the U.S. government with investors in failing Savings and Loans. See, e.g., Winston v. United States, 518 U.S. 839 (1996) and California Federal Bank v. United States, 39 Fed. Cl. 753 (1997), along with the informative discussion in Jed R. Friedman, "The Role of Causality in Contract Restitution Cases" (unpublished paper, on file with author W. Miller).
171. See E. Carr, "Federal Aid to Troubled Thrifts," The Savings Banker, Feb. 1982, at 2. FDIC: The S & L Crisis: A Chrono-Bibliography . Repercussions continued well into the late 1990s with lawsuits based on claims that the U.S. Congress' flip-flops on policy resulted in breaches of contracts by the U.S. government with investors in failing Savings and Loans. See, e.g., Winston v. United States, 518 U.S. 839 (1996) and California Federal Bank v. United States, 39 Fed. Cl. 753 (1997), along with the informative discussion in Jed R. Friedman, "The Role of Causality in Contract Restitution Cases" (unpublished paper, on file with author W. Miller).
172. See E. Carr, "Federal Aid to Troubled Thrifts," The Savings Banker, Feb. 1982, at 2. FDIC: The S & L Crisis: A Chrono-Bibliography . Repercussions continued well into the late 1990s with lawsuits based on claims that the U.S. Congress' flip-flops on policy resulted in breaches of contracts by the U.S. government with investors in failing Savings and Loans. See, e.g., Winston v. United States, 518 U.S. 839 (1996) and California Federal Bank v. United States, 39 Fed. Cl. 753 (1997), along with the informative discussion in Jed R. Friedman, "The Role of Causality in Contract Restitution Cases" (unpublished paper, on file with author W. Miller).
173. See The S & L Crisis: A Chrono-Bibliograplry, supra note 155.