2004-518, APPEAL OF ALPHADIRECTIONS, INC.

Dental). At that time, Kenmore Associates was the duly - appointed broker of (Anthem) and a dental insurance contract with Northeast Delta Dental (Delta insurance contract with Anthem Blue Cross Blue Shield of New Hampshire had a fully insured program of medical and dental insurance through a health administration following the November 2002 gubernatorial election, the State The record supports the following facts. Prior to the change in

We affirm. RSA 402 - J:3 (Supp. 2004); RSA 405:44 - a (Supp. 2004); RSA 405:44 - g (1998). producer license and imposing a fine of $42,500. See RSA 400 - A:15, III (1998); brokerage and insurance consulting services without the required insurance the New Hampshire Department of Insurance finding that it provided insurance DUGGAN, J. The petitio ner, AlphaDirections, Inc., appeals a decision of

Blenkinsop orally), for the New Hampshire Department of Insurance. Suzanne M. Gorman, senior assistant attorney general, on the brief, and Mr. Kelly A. Ayotte, attorney general (Anthony I. Blenkinsop, attorney, and

Volinsky on the brief and orally), for th e petitioner. Bernstein, Shur, Sawyer and Nelson, P.A., of Manchester (Andru H.

No. 2004 - 518 Insurance Depart ment

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

March p. 2 24, 2003, was replaced by Denis French, a licensed producer, and h is Subsequently, Kenmore Associates was terminated as broker of record and, on licensed as an insurance producer in order to receive commissions. insurance producer. Anthem also advised D’Alessandro that Pepin must be State or commissions from Delta Dental only if she was licensed as an Dental, who advised him that Pepin could receive consultant fees from the On March 20, 2003, D’Alessandro met with a representative of Delta

work on communications and impleme ntation. described the services for the “ p. 2 2003/04 Open Enrollment Activity” to include programs and fully - insured and self - insured proposals. The cost estimate also active and retired employees, medical and dental plans, life and disability Health Insurance Renewal” to include consulting work on, among other things, services to the State. The cost estimate described the services for the “2003/04 submitted, through D’Alessandro, a cost estimate of $150,000 for consulting personnel for the State. Three days later, Pepin, on behalf of AlphaD irections, new program. On March 7, 2003, D’Alessandro became the new director of information concerning the structure of a new program and the transition to a existing health and dental insur ance programs. They also collected information, sometimes through Kenmore Associates, regarding the State’s In late 2002 and early 2003, D’Alessandro and Pepin began to gather

provide insurance brokerage and consulting services under RSA 40 p. 2 2 - J:3. Neither AlphaDirections nor Pepin was licensed as an insurance pro ducer to partners in AlphaDirections, Inc., a consulting business started by Pepin. were on a volunteer basis. At the same time, D’Alessandro and Pepin were State Employees Association (SEA). Pepi n’s services during this period of time appointed to the State negotiating committee for collective bargaining with the in private industry, also worked on the transition team. In addition, Pepin was self - insured basis. Li nda Pepin, who had previously worked with D’Alessandro the designated point - person with respect to shifting the health benefits to a Joseph D’Alessandro, a member of the Governor’s transition team, was

that a program of self - insurance would result in more cost savings to the State. which could result in cost savings. The new administration, however, believe d program for the health insurance, as it currently did for the dental insurance, Kenmore Associates recommended that the State use a retention accounting upfront budgetary increase for the required fu nding reserves. Instead, Kenmore Associates did not recommend a self - insured program because of the including the question of whether to switch to a self - insured program. saving measures with regard to the State’s health and dental insurance plans, Soon after the election, the new administration began to pursue cost -

from Anthem and Delta Dental in that capacity. record for the State with respect to these programs and received commissions p. 3 3

with a retention accounting program. In addition, Pepin intended to negotiate regard to dental insurance, Pepin recommended remaining with Delta Dental increasing the employees’ cost from a two - tier plan to a three - tier plan. With recommended a self - insured program for prescription drugs and sug gested premium sharing, higher co - pays and increased deductibles. Pepin also insured program and implementing certain plan design changes including for both active and retired e mployees, Pepin recommended converting to a self with the recommended benefits changes. With regard to the medical insurance D’Alessandro regarding the work she was doing and the cost savings associated On April 28, 200 p. 3 3, Pepin made a presentation to Commissioner Hill and

SEA. the State committee negotiating a collective bargaining agreement with the D’Alessandro; Donald Hill, the commissioner of administrative services; and turn, gave advice and recommendations based upon her analysis to cost comparison between a fully insured and a self - insured program. She, in structure, the cost effectiveness of proposed changes to the benefits and the Pepin analyzed the utilization of the insurance plans, the current benefit and quotes for va rious changes in the plan designs. With this information, experience reports, claims data, options for changes in the benefit structure obtained information from Delta Dental, Anthem and Cigna including monthly functions with respect to the State’s insurance program. Pepin frequently managed the State’s conversion to a self - insured plan and perfor med other plan, designed and proposed possible benefit changes to achieve cost savings, participated in the arrangement of a short - term renewal of the fully insured During this same time fr ame, Pepin, through AlphaDirections,

department of insurance had initiated its investigation. commission check from Delta Dental because it was received after the eight checks to AlphaDirections totaling $55,474.07. NiBri retained the last Dental issued nine checks to NiBri totaling $6 p. 3 3,197.90, which, in turn, issued checks to AlphaDirections totaling $131,538.55. At the same time, Delta issued nine checks to NiBri totaling $131,538.55, which, in turn, issued nine were thereafter to be made to NiBri. From April to November 2003, Anthem record and that commission payments previously made to Kenmore Associates Anthem and Delta Dental were informed of the change in the broker of

intended to forward all the commissions he received to AlphaDirections. the State’s self - insurance plan. From the date of his appointmen t, French Anthem, Delta Dental or Cigna, which was eventually selected to administer contracts, had very little contact with D’Alessandro and never had contact with appointment, French performed no more than six hours of work on the State identification information for AlphaDirections. In the months following his appointment as broker of record, Pepin supplied French with the tax company NiBri Benefit Services, Inc. (NiBri). Days prior to French’s p. 4 4

violated the insurance brokering statut e. See RSA p. 4 402 - J:3. Specifically, it The petitioner argues that the hearing officer erred in finding that it

I. Insurance brokering violations

each argument in turn. State Farm Mut. Auto. Ins. v. Whaland, 121 N.H. p. 4 400, 403 (1981). We address a clear preponderance of the evidence that it is unreasonable or unlaw ful. lawful and reasonable and will be overturned only when a petitioner shows by order is limited. An order of the commissioner is presumed to be prima facie fine of $42,500 was not arbitrary. Our review o f the insurance commissioner’s that it violated the insurance brokering and consulting statutes and that the On appeal, the petitioner argues that the hearing officer erred in finding

p. 4 400 - A:15, III; RSA 405:44 - g. This appeal followed. See RSA 400 - A:24 (1998). imposition of a $42,500 fine did not constitute an abuse of discretion. See RSA 402 - J:3; RSA 405:44 - a. The hearing officer also found that the commissioner’s petitio ner violated the insurance brokering and consulting statutes. See RSA that the commissioner proved by a preponderance of the evidence that the Following a four - day hearing, the hearing officer issued an order finding

administrative fine of $ p. 4 42,500. ordered to show cause why the commissioner should not assess an producer license. See RSA 402 - J:3; RSA 405:44 - a. The petitioner was al so consulting services and negotiating insurance coverage for a fee without a president, Pepin, violated various insurance statutes by providing insurance commissioner should not find that the petitione r, acting through its owner and the petitioner to appear at a hearing and show cause as to why the On March 4, 2004, the insurance commissioner issued an order directing

insurance plan. Ultimately, Cigna was awarded the contract to administer the State’s self proposal for a bid and sent proposed plan designs to the carriers for quotes. information from the various insurance carriers in order to put together a design with Anthem, Cigna and the SEA. In addition, Pepin requested Following the timeline, Pepin negotiated the proposed chang es in plan

programs. upon her recommendations and a timeline for implementing the new insurance coverage, the necessary requests for proposals, the projected savings based and management of the insurance progra ms, recommendations on stop loss also covered the use of the Choicelinx program to administer the enrollment change the plan design to include higher annual deductibles. The presentation a renewal rate t hat would be cost neutral compared to the previous year and to p. 5 5

meaningless in the vast majority of transactions. This .. . licensing required for brokers in order to receive commissions interpretation advanced by AlphaDirections would render the purchase by the prospective insured. Adoption of the restrictive purchase, but the broker is no less “obtaining” the insu rance for retains the ultimate decision - making authority with respect to the It is generally the case that the prospective purchaser of insurance

insurance. As the hearing officer aptly noted: purchaser, and the person need not have the actual authorit y to purchase sufficient for the person subject to licensure to offer advice to the ultimate added); see RSA 402 - J:3. Thus, the definition itself acknowledges that it is directly to a purchaser or prospective purchaser.” RSA 402 - J:2, XI (emphasis licensed to negotiate insurance, which is defined in part as “offering advice authority to purchase insurance. The statute requires that an individual be not require the pe rson subject to licensure under the statute to have the actual Considering the statute as a whole, we hold that the term “obtain” does

Id. words or phrases in isolation, but rather in the context of the entire statute. in tent. In re Juvenile 2003 - 248, 1 p. 5 50 N.H. 751, 751 - 52 (2004). We do not read plain and ordinary meaning of the statutory language in determining legislative In the Matter of Jacobson & Tierney, 150 N.H. 513, 515 (2004). We look to the the legislature as expressed in the words of the statute considered as a whole. In matters of statutory interpretation, we are the final arbiter of the intent of licensure under the statute to have the actual authority to purchase insurance. We first address whether the term “obtain” requires the person subject to

for purchasers. that act either sells insurance, or obtains insurance from insurers conditions of such contract, provided that the person engaged in insurance concerning any of the substantive benefits, terms, or purchaser or prospective purchaser of a particular contract of the act of conferring directly with or offering advice dire ctly to a

an insurance producer’s license. RSA 402 - J:2, XI defines “negotiate” as RSA 402 - J:3 prohibits selling, soliciting or negotiating insurance without

402 - J:3; RSA 402 - J:2, XI (Supp. 2004). rights and the Separation of Powers Clause of the State Constitution. See R SA to apply in this case violates the petitioner’s federal and State due process apply to a person obtaining a bid or price quote; and (4) interpreting the statute misinterpreted the statutory meaning of “negotiate”; (3) th e statute does not Governor and Executive Council can approve contracts; (2) the hearing officer argues that: (1) it could not “obtain” insurance for the State because only the p. 6 6

argues that: (1) its work from August 2003 to November 2003 did not involve violated the insurance consulting statute. See RSA 405:44 - a. Specifically, it The petitioner argues that the hearing officer erred in finding that it

II. Insurance consulting violations

(2005). decline to address them. See In re Juvenile 2003 - p. 6 604 - A, 151 N.H. 719, 721 conclude that these arguments were no t adequately briefed and, therefore, violates the Separation of Powers Clause of the State Constitution. We brokering statute violates its rights to federal and State due process and F inally, the petitioner argues that this interpretation of the insurance

producers in order to receive commissions in the vast majority of transactions. Again, to hold otherwise would render meaningless the licensing required for nonetheless “obtaining insurance” for purchase by the prospective insured. bids or price quotes for the prospective purchaser. The prod ucer, however, is necessarily follows that during negotiations, the producer could only obtain retains the ultimate decision - making authority with respect to the purchase. It above, it is generally the case that th e prospective purchaser of insurance quote for insurance. See RSA 402 - J:2, IV, XI (Supp. 2004). As we explained obtain insurance, and thus does not apply to a person obtaining a bid or price The peti tioner next argues that the statute requires the producer to

Auto. Ins., 121 N.H. at 403. evidence that the findings are unreasonable or unlawful. See State Farm Mut. the record and the petitioner has failed to show by a clear preponderance of the of negotiate. See RSA 402 - J:2, XI. These findings are adequately supported by to achieve cost savings. These acts fit squarely within the statutory definition insured plan; and (3) involvement in designing and proposing benefit changes plan; (2) participation in the arrangement for a short - term renewal of the fully the petitioner’s: (1) management of the State’s conversion to a self - insured of negotiate.” The hearing officer specifically referred to, among other activities, “within the common meaning of the words ‘advice’ and ‘confer’ in the definition The hearing officer found that many of the petitioner’s activitie s fell

alternative definition or application of the term to this case. however, does not elaborate further on the alleged error, nor offer an interpretation of the term that should have been plain.” The petitioner, “misinterpreted the statutory meaning of ‘negotiate’ by adding his own In its brief, the petitioner next argues that the hearing officer

the jaws of clarity. represents an effort [by AlphaDirections] to snatch ambiguity from p. 7 7

respect to the expediency or advisability of altering, changing, exchanging, giving or offering to give advice, counsel, recommendation or information “in coverage or premium of any such policy or contract.” Id. A further activity is recommendation or information in respect to the terms, conditions, benefits, Another activity is giving or offering to give “any advice, counsel, examining or aiding in examining any policy of insurance. RSA 405:44 - a, I. fee without a producer’s license. One such activity is offering to examine, RSA 405:44 - a prohibits the p erformance of a number of activities for a

not violate the insurance consulting statute. because it did not review a specific policy or policy language, its conduct did “simply discuss[ed] insurance concepts.” Thus, the petitioner contends that The petitioner next argues that it never reviewed an insurance policy but

action and the receipt of payment. insurance consulting if there were any delay between the unlawful consulting services. To hold otherwise would result in the inability to prevent unlicensed received by the petitioner related to previously - provided unlicensed con sulting It is logical to conclude, as the hearing officer did, that the brokerage fees consulting services that are performed “for a fee received or to be received.” Id. consulting services rendered. See id. Rather, the statute req uires a license for violation of the statute. The statute does not require simultaneous payment for insurance consulting, the payments received during that time were not in November 2003 involved com munications and implementation and not The petitioner first argues that, because its work from August 2003 to

the provisions of RSA 402 - J. unless he or she holds a license as an insurance producer under rej ecting any such policy or contract . . . from any company . . . expediency or advisability of altering, changing, renewing or or premium of any such policy or contract, or in respect to the information in respect to the terms, conditions, benefits, coverage or giv e or offer to give, any advice, counsel, recommendation or in examining, any policy of insurance . . . for the purpose of giving, a fee received or to be received, offer to examine, or examine or aid No person, corporation, partnership or association shall, for

RSA 405:44 - a, I, provides that:

‘ins urance.’” requirements because “[a]n employer’s decision to self insure is not conversion to self - insurance does not fall within the statute’s licensing “simply discuss[ed] insurance concepts;” and (3) its management of the State’s not in violation of the statute; (2) it never rev iewed an insurance policy but insurance consulting and thus the payments received during that time were p. 8 8

unreasonable or unlawful. See State Farm Mut. Auto. Ins., 121 N.H. at 403. preponderance of the evidence that the hearing officer’s findings are statute. See id. Accordingly, the petitioner has failed to show by a clear conversion to self - insurance. The petitioner’s activities fall squarely with in the recommendations based upon its analysis of the data and managed the State’s comparisons of a self - insured and fully insured program, made converting, replacing or rejecting insurance. The petitioner provided cost advice on the expediency or advisability of, among other things, altering, ‘insurance.’” As stated above, RSA 405:44 - a regulates giving or offering to give requi rements because “[a]n employer’s decision to self insure is not conversion to self - insurance does not fall within the statute’s licensing Finally, the petitioner argues that its management of the State’s

insurance carriers for bids. Anthem and Cigna and prepared proposed plan designs that were sent to the addition, the petitioner negotiated the proposed changes in plan design w ith the cost comparison between a fully insured and self - insured program. In advice included, among other things, recommendations on plan changes and negotiating committee for collective bargaini ng with the SEA. The petitioner’s based upon her analysis to D’Alessandro, Commissioner Hill, and the State The petitioner analyzed this information and gave advice and recommendations in the benefit str ucture and quotes for various changes in the plan designs. Cigna including monthly experience reports, claims data, options for changes above, the petitioner obtained information from Delta Dental, Anthem and There is ample evidence in the record to support this finding. As detailed

savings. plan, and work in designing and proposing benefit changes to achieve cost participation in the arrangement for a short - term renewal of the fully insured petitioner’s management of the State’s conversion to a self - insured plan, this finding, the hearing officer relied upon, among other things, the constituted insurance consulting in violation of the statute. See id. In making offering to give “advice, counsel, recommendation or information,” and thus many of the petitioner’s a ctivities fell within the clauses dealing with giving or do not necessarily involve a specific policy. The hearing officer found that a specific policy or policy language, the other activities regulated by the statute While the first regulated activity under RSA 405:44 - a involves examining

any company.” Id. policy or contract, or of accepting or procuring any such policy or contract from converting, replacing, surrendering, continuing, renewing or rejecting any such p. 9 9

BRODERICK, C.J.