IN THIS ISSUE: Winter 2015

cosgrove  Jerry Tichner Bio photo   Zick_Colin

Meg Cosgrove, Jerry Tichner, Colin Zick
Co-editors, Health Law Reporter

Jerry, Colin and I are proud to bring you the Winter 2015 edition of the Health Law Reporter. The good news is that we can promise that this edition has nothing to do with the weather and will not comment upon the record snow or cold temperatures experienced by Boston this winter. Instead, this edition brings with it news of epic changes to the Massachusetts healthcare landscape as we move into spring. In this issue, George Leehan, Sarah Sossong and Nathaniel Lacktman cover the principal legal and regulatory issues associated with the current state of telemedicine in Massachusetts including licensure, scope of practice, credentialing and reimbursement issues. Jesse Alderman tackles the intricacies of physician certification of the medical use of marijuana for patients including the parameters associated with qualifying patients as having a “debilitating medical condition,” the requirements surrounding a physician’s certification that the benefits of medical marijuana outweigh the risks to the patient, and the criteria required to register as a certifying physicians with DPH. This article follows up on the Summer 2014 Reporter article discussing the legal issues confronted by Registered Marijuana Dispensary (RMD). Finally, Daniel LaPenta discusses the exposure of skilled nursing facilities to increased government enforcement due to the increase of Medicare-eligible beneficiaries from the “baby boom” generation.

We are also excited that Anna Gurevich from Beth Israel Deaconess Medical Center was able to spend some time with Tom O’Brien, the General Counsel of the Department of Public Health and the former Chief of the Health Care Division at the Office of the Attorney General. In her interview, Anna garnered insights from Tom regarding his role at DPH as well as his dedication to public service and the enforcement of the rule of law. This edition also includes summaries on two recent health law cases in Massachusetts—Barry Genereux, et. al. v. Raytheon Co. addresses employer responsibility for medical monitoring for employees exposed to dangerous substances and Robert Roe, et. al. v. Children’s Hospital Medical Center discusses whether a hospital owes a duty of care to allegedly abused future patients of a former physician employee.

On a final note, we wanted to extend our heartfelt thanks and appreciation to our former co-editor, David Sontag from Beth Israel Deaconess Medical Center for all of his hard work and dedication to the Reporter over the years.

Opinion Pieces:

Telemedicine in Massachusetts: What Providers Need to Know
By George Leehan, Sarah Sossong, and Nathaniel Lacktman

The Medical Use of Marijuana and Legal Issues Associated with Physician Certification of Medical Marijuana Use by Qualifying Patients
By Jesse Alderman

BOOM! Aging Baby Boomers are Set to Cause an Explosion in Government Enforcement and Health Care Fraud and Abuse Investigations of Skilled Nursing Facilities
By Daniel C. LaPenta

Policymaker Profile: Tom O’Brien
By Anna Gurevich

Health Law Case Briefs: 

Robert Roe, et al vs. Children’s Hospital Medical Center
By Rachelle Rubinow

Genereux et al. v. Raytheon Co.
By Alysson M .Gray

Telemedicine in Massachusetts: What Providers Need to Know

 By George Leehan, Sarah Sossong, and Nathaniel Lacktman, Esq.

Introduction

Telemedicine is an exciting clinical delivery tool that offers real ways to address healthcare’s persistent problems of access, coordination, and efficiency.  But with innovation comes unique legal considerations, and while some states have given significant thought to telemedicine, publishing robust laws or rules to guide adoption and promote reimbursement, Massachusetts laws and regulations have not addressed the area in depth.

And yet, despite the lack of robust regulatory standards or widespread commercial coverage of telemedicine in Massachusetts, many providers and hospital systems have taken the initiative and successfully embedded telemedicine into their patient care delivery models.  The resulting dissonance between telemedicine policy and telemedicine practice is particularly evident in Massachusetts, where a number of legal hurdles continue to exist, serving to inhibit the widespread adoption of certain telemedicine options in Massachusetts despite the strong efforts of the provider community to push the technology forward.  Written primarily with Massachusetts healthcare providers and legal counsel in mind, this article covers the principal legal and regulatory issues around telemedicine in Massachusetts – licensure, scope of practice, credentialing, and reimbursement.[i]

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The Medical Use of Marijuana and Legal Issues Associated with Physician Certification of Medical Marijuana Use by Qualifying Patients

By Jesse Alderman, Esq.

This is the second article in a two-part series on the medical use of marijuana in Massachusetts.  The first article addressed some of the issues associated with the opening of a registered marijuana dispensary (RMD).  This article addresses issues associated with physician and clinician certification of the medical use of marijuana for patients.

Background

The Massachusetts voters passed a ballot initiative in 2012 authorizing physician certification, patient use and commercial sale of medical marijuana consistent with a detailed regulatory framework for patients, physicians, caregivers and medical marijuana purveyors.[i]  Chapter 369 of the Acts of 2012 – An Act for the Humanitarian Medical Use of Marijuana (the “Act”) – authorized the Department of Public Health (DPH) to license up to 35 RMDs in the Commonwealth and to promulgate regulations to implement the medical marijuana program.[ii]

The registration of RMDs has been slow and not without continuing controversy, but the opening of RMDs in Massachusetts appears now to be nearing fruition.[iii]  In November 2013, after a multi-part application process – and numerous media reports questioning the rigor of DPH’s vetting of applications and the political connections of certain applicants – DPH provisionally selected 20 applicants (out of an initial pool of 181) to move to what it called a “verification phase” of the registration process.[iv]  Additionally, DPH invited five applicants to reapply to operate RMDs in counties for which no applicant was provisionally selected.[v]  During the “verification phase,” DPH further analyzed the accuracy of the 20 provisionally selected applications and disqualified nine of the applicants.[vi]  On June 27, 2014, eleven applicants were invited to begin securing necessary approvals and otherwise establish fully operational RMDs subject to an “inspection phase” by DPH.[vii]  Likewise on November 7, 2014, after reviewing resubmissions from invited applicants, DPH approved four more RMDs (from three separate applicants) to proceed to the inspection phase.[viii]  DPH will not register an RMD until an applicant satisfactorily passes the inspection phase.[ix]  The agency has said it expects the first dispensaries to open “this winter.”[x]  To that end, DPH has now registered Alternative Therapies Inc. to grow medical marijuana in anticipation of opening its Salem dispensary within months pending final approvals; the applicant satisfactorily passed through DPH’s “inspection phase.”[xi]

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BOOM! Aging Baby Boomers are Set to Cause an Explosion in Government Enforcement and Health Care Fraud and Abuse Investigations of Skilled Nursing Facilities

By  Daniel C. LaPenta, Esq.

IIntroduction

Seventy years ago, the greatest generation stormed the beaches of Normandy and planted an American flag atop Iwo Jima’s Mount Suribachi.  Stateside, the greatest generation supplied the boats, bullets, and beans necessary for success.  In the twenty years that followed, the greatest generation spawned the “baby boomers,” who now present perhaps our nation’s greatest challenge:  taking care of them.  It is ironic that the most vulnerable among us are the sons and daughters of a generation that endured the Great Depression, defeated Nazism, and laid the groundwork for American’s economic surge.  Attendant to that vulnerability is a health care system trying to care for them, profiteers ready to exploit them, and the government attempting to protect them.

This triad of players involved in health care for the elderly naturally implicates Medicare reimbursement for the services of skilled nursing facilities (SNFs).[i]  With the rise of government spending on Medicare to meet the demands of the aging and retiring baby boomers, there is more opportunity for innocent errors, pervasive abuse, and outright fraud.  The government will try to curb the waste of the tax dollar through increased oversight and enforcement.  Trends since the passage of the Affordable Care Act (ACA)[ii] show that oversight of SNFs is a government priority.  Recent enforcement actions display that reality with no signs of slowing.  In particular, there appears to be a focus on the “quality of care” that SNFs must (statutorily) give to their residents.  This will increase the compliance risk for the future of SNFs, exposing them to greater civil and even criminal penalties.

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Policymaker Profile: Tom O’Brien

By Anna Gurevich, Esq.

Thomas More O’Brien is the General Counsel for the Massachusetts Department of Public Health (“DPH” or the “Department”) where he oversees a 45-person legal office.  As chief lawyer for the Department, Tom manages the legal affairs for the Department and is responsible for the interpretation and administrative enforcement of the Commonwealth’s public health laws (primarily M.G.L. c. 111 and portions of c. 112) and regulations.  The Department operates with more than 3,000 employees at fifteen locations including four public health hospitals, and performs a range of statutory functions including administration of vital records, licensure of health professionals (e.g., nurses), licensure of health providers (e.g., hospitals), surveillance to monitor food safety, and efforts to detect, prevent, and reduce infectious and environmental public health threats.

Prior to joining the Department in June of 2014, Tom was an Assistant Attorney General and Chief of the Health Care Division in the Office of the Attorney General of Massachusetts.   Tom successfully led the Health Care Division through significant policy work and litigation against numerous health plans, health care providers, and pharmaceutical companies returning tens of millions of dollars to Massachusetts.  He led the Health Care Division’s groundbreaking examination of health care cost trends and cost drivers. Tom started his career in public service in the Executive Office for Administration and Finance, where he helped launch the Office of Purchased Services that reformed the Commonwealth’s system for purchasing health and social services from private vendors.  Tom received a J.D. from Suffolk University Law School, an M.P.A. from the University of Massachusetts at Amherst, and a B.S. (mathematics) and a B.A. (English literature) from the College of Santa Fe.

Why don’t we start by you walking me through your background and experience before joining the Department of Public Health?

I joined DPH at the Department’s request this past summer. I came to the Department after 21 years at the Office of the Attorney General (“AGO”), where most recently I was the Chief of the Health Care Division within Attorney General Martha Coakley’s office. I was originally hired into the office by Attorney General Scott Harshbarger. So I had the pleasure of working with 3 attorneys general – Scott Harshbarger, Tom Reilly, then Martha Coakley. Prior to joining the AGO, which is now ancient history, I was in the Executive Office for Administration and Finance. I started there during the Dukakis administration after graduating with my Master in Public Administration, and worked there while I went to law school.

It sounds like you were significantly involved with government at the same time you decided to pursue law. What prompted you to become a lawyer?

That is a good question. I am not from a legal family, and I did not have a particular desire when I was in high school or college to go to law school. I am a career public servant, and it was always my intention to be in public service. Some might say (laughing), that with a name like Thomas More O’Brien, it is not surprising that I ended up a lawyer, and a lawyer involved in public service. I was still working on my college thesis when I started working as an intern for the Executive Office for Administration & Finance in the Dukakis administration. There, I worked with some outstanding attorneys who were not litigators- they were in practice as government officials. They recognized, whether it was for good or ill, that I had some of the same qualities that government attorneys had, with regard to how I looked at and analyzed issues. So the suggestion was made by multiple people that I should explore going to law school, which is what I did. In 1988, I started at Suffolk University, working during the day in the Executive Office and going to law school at night.  I relished that period of time. It was a lot of work, but it enabled me to see the Dukakis and then Weld administrations in action during the day, and then have the construct of the law reinforced at school in the evenings. When I graduated from law school it was my intention to stay with the administration, but multiple people suggested that I go to the AGO as a better opportunity to hone my legal skills. Twenty years later, I was still at the AGO, relishing the work. I have always been, in my career, proud to be an employee of the Commonwealth of Massachusetts.

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Health Law Case Brief: Robert Roe, et al vs. Children’s Hospital Medical Center

By Rachelle Rubinow, Esq.

In Robert Roe, et al vs. Children’s Hospital Medical Center,[i] the Supreme Judicial Court (SJC) ruled that a hospital employer does not owe a duty of care to the future patients of a former physician employee who had left its employ and was working for a different employer when that physician allegedly abused the plaintiffs.

In 1966, Children’s Hospital Medical Center (Children’s Hospital) hired Melvin Levine as a pediatric physician, a position he held until 1985, when he relocated to North Carolina and began working as a pediatrician at the University of North Carolina School of Medicine (UNC). In 2009, he surrendered his medical license amid allegations that he performed medically unnecessary genital examinations on several UNC patients. Two years later, eleven former UNC patients of Dr. Levine’s brought suit against Children’s Hospital in Superior Court. They alleged that Children’s Hospital failed to properly train, supervise, or discipline Levine during his employment at Children’s Hospital; knew or should have known that Levine was conducting inappropriate genital examinations of minors during that employment; and failed to report Levine’s conduct to various licensing authorities and UNC. The evidence used in support of the complaint included an allegation made by the mother of a former patient in 1967, as well as litigation brought in 1988, 2005, 2006, 2007, 2008, alleging similar conduct by Dr. Levine toward minor patients during his employment at Children’s Hospital.

Children’s Hospital moved to dismiss the plaintiffs’ complaint for failure to state a claim upon which relief could be granted. In response, the plaintiffs moved to amend, seeking to add an allegation that Children’s Hospital owed them a duty of care because it had a “special relationship” with Levine, and it knew or should have known that he posed a foreseeable risk of harm to future patients. In July 2012, the Superior Court granted Children’s Hospital’s motion to dismiss and denied the plaintiffs’ motion to amend. The plaintiffs appealed, and the SJC granted direct appellate review, with the only issue on appeal being whether Children’s Hospital owed a duty of reasonable care to the plaintiffs.

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Health Law Case Brief: Genereux et al. v. Raytheon Co.

By Alysson M .Gray, Esq.

On June 10, 2014, the United States Court of Appeals for the First Circuit (First Circuit) affirmed a ruling of the United States District Court for the District Court of Massachusetts (District Court) granting a motion for summary judgment in favor of the defendant in Genereux et. al. v. Raytheon Co.[i] The decision in Genereux results in a narrowing of protections extended to individuals exposed to dangerous substances during their employment. Although past precedent in Massachusetts signals that those exposed to dangerous substances during the scope of their employment may be eligible for employer-funded medical monitoring, the Court in Genereux held that a plaintiff must show evidence of a subcellular or physiological change in order to secure compensation for treatment.

The defendant, Raytheon, is a company based out of Waltham, MA that specializes in defense and security technology.[ii] The plaintiffs alleged that the defendant endangered the health of its employees and their families by negligently exposing them to beryllium[iii], a hazardous substance used in the manufacturing process at the Waltham plant. The plaintiffs sought a court order compelling the defendant to establish a trust fund that would provide for medical monitoring of beryllium sensitization (BeS) for two groups. The first class consisted “…of all persons who worked at the Waltham plant for at least one month prior to December 31, 1996.”[iv] The other group consisted “…of all persons who lived with members of the first class and thus were subject to take-home beryllium exposure.”[v] Employees already diagnosed with Chronic Beryllium Disease (CBD) were excluded from both classes. (more…)

IN THIS ISSUE: Summer 2014

Sontag, David  Jerry Tichner Bio photo  cosgrove   Zick_Colin

David Sontag, Jerry Tichner, Meg Cosgrove, Colin Zick
Co-editors, Health Law Reporter

Happy Summer! Jerry, David and I are excited to present the Summer edition of the Boston Bar Association’s Health Law Reporter. In this issue, Andrew Levine, Robert Blaisdell and Kate Harrell have authored the first in a two-part series on the medical use of marijuana and the legal issues associated with the registered marijuana dispensaries in Massachusetts. As a follow up, our fall edition will focus on the physician-related issues including patient eligibility, the certification requirements, and patient rights and responsibilities following certification. In her thought-provoking article on the rights of parents with disabilities, Robyn Powell explores the significant legal, medical and familial resistance that certain disabled individuals continue to encounter when trying to become parents. To round out our lead articles, Samantha Morton, Kirsten Meisinger, M.D., and Deborah Durant explore the implications of patient-centered, accountable healthcare for the legal profession including the need for the legal community to expand the depth of our “lawyer’s toolbox” in order to remain effective advocates for our clients.

We are also very appreciative that Sarah Iselin, Senior Vice President of Strategy, Policy and Community Partnerships and Chief Strategy Officer at Blue Cross Blue Shield of Massachusetts, took the time to sit down with Margaret Schmid to discuss her role as a policymaker in Massachusetts including her recent position as a Special Assistant to Governor Deval Patrick tasked with overseeing the fixes to the Massachusetts Health Connector. Sarah offers some interesting insights into the current state of the Health Connector as well as future challenges in healthcare in Massachusetts.

This edition also includes a summary of several recent health law cases in Massachusetts: Walden Behavioral v. K.I., which is currently pending on appeal, held that the patient-psychotherapist privilege does not apply to civil commitment hearings; two cases that limit the kinds of decisions that a health care proxy is authorized to make on behalf of a principal, Johnson v. Kindred Healthcare, Inc. and Licata v. GGNSC Malden Dexter LLC; and Bryant v. Jackson, a case that addresses the intentional release of a patient’s HIV status by a hospital employee.

On a separate note, we also wanted to warmly welcome our new co-editor, Colin Zick, and our new peer review coordinator, Tad Heuer, both of Foley Hoag LLP. Colin and Tad bring years of experience and expertise to the Reporter and we are incredibly happy and lucky to have them join the team.

Opinion Pieces:

From the Delivery Room to the Courtroom: Ensuring the Rights of Parents with Disabilities
By Robyn M. Powell

The Medical Use of Marijuana and Legal Issues Associated with MA Registered Marijuana Dispensaries
By Andrew S. Levine, Robert K. Blaisdell, and Kathleen A. Harrell

Lawyering as Problem-Solving: Implications of Patient-Centered, Accountable Healthcare for the Legal Profession
By Samantha J. Morton, Kirsten Meisinger, Deborah Durant

Policymaker Profile: Sarah Iselin
By Margaret Schmid

Health Law Case Briefs: 

Walden Behavioral Care v. K.I.
By Stephanie Regan

Johnson v. Kindred Healthcare, Inc. and Licata v. GGNSC Malden Dexter LLC
By Sean Baird

Bryant v. Jackson
By Andrew Egan

From the Delivery Room to the Courtroom: Ensuring the Rights of Parents with Disabilities

By: Robyn M. Powell, Esq.

The right to raise a family is undoubtedly one of the rights most cherished by Americans.  The United States Supreme Court has avowed continuously and with conviction that parents’ rights to the care and custody of their children are protected under the Due Process Clause of the 14th Amendment.  Parental rights have long been held as fundamental, beginning with the seminal 1923 decision in Meyer v. Nebraska,[1] in which the Supreme Court held that parents have the due process right to see to the education of their children together with the duty to give children a suitable education.  Two years after Meyer, the Supreme Court, in Pierce v. Society of Sisters, ruled that parents have the liberty “to direct the upbringing and education of children under their control.”[2]  In this landmark case, the Supreme Court found, “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”[3]  Subsequent decisions have further defined the contours of the law’s protections of parental rights.[4]

Despite recognition of the fundamental right to raise a family, people with disabilities continue to encounter pervasive and systemic discrimination when seeking to create and maintain families.  In 2012, the National Council on Disability (“NCD”), an independent federal agency, released its groundbreaking report, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children (hereinafter “Rocking the Cradle”).[5]  Rocking the Cradle is a comprehensive policy study that explores the pervasive prejudices faced by parents with disabilities. The report exposes the disparate treatment often encountered by parents with disabilities and their children within the legal and social services systems and offers draft model state and federal statutory language to correct the discrimination faced by parents with disabilities throughout the United States.

This article, an adaption of the Rocking the Cradle report, provides readers with an understanding of this largely overlooked civil rights issue inherent in the discrimination faced by parents with disabilities, focusing on the legal and policy considerations.  The first section provides a historical context on the parenting rights of people with disabilities.  The following sections examine the four key areas wherein parents and prospective parents with disabilities face discrimination: child welfare, family law, adoption, and assisted reproductive technologies.  Finally, the article concludes with a discussion on what Massachusetts is doing to remedy this unjust phenomenon and provides a call to action to Massachusetts advocates and policymakers.

 

History of Parenting Rights in the Disability Community

The desire to raise a family crosses all cultural, physical, and political boundaries.  However, for people with disabilities, this inherent desire has long been forestalled by societal bias.  This opposition has deep and disturbing roots.

To begin with, the eugenics movement, during which more than 30 states legalized involuntary sterilization, characterized the first half of the 20th century.[6]  This legislative trend was premised on the notion that people with disabilities were “socially inadequate” and burdensome to society.[7]  Because of these state statutes, more than 65,000 Americans had been involuntarily sterilized by 1970.[8]  Many of these individuals were sterilized because of an intellectual or psychiatric disability or belonged to socially disadvantaged groups.

In 1927, the United States Supreme Court sanctioned this practice.  In his notorious decision upholding the constitutionality of Virginia’s law requiring the involuntary sterilization of people with disabilities, Justice Oliver Wendell Holmes, Jr. declared,

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind…Three generations of imbeciles are enough.[9]

Disgracefully, this Supreme Court decision has yet to be overruled.  In fact, in 1995, the Supreme Court denied the petition for certiorari of a woman with an intellectual disability challenging Pennsylvania’s involuntary sterilization statute.[10]  Bell was cited by a federal appeals court as recently as 2001, in Vaughn v. Ruoff.[11]  In this case, the plaintiff had a “mild” intellectual disability and both of her children were removed by the state.  Immediately following the birth of her second child, the social worker told the mother that if she agreed to be sterilized, her chances of regaining custody of her children would improve.  The mother agreed to sterilization, but approximately three months later, the state informed her that it would recommend termination of parental rights.  The district court found that the plaintiff had a protected liberty interest in the 14th Amendment and that the social worker’s conduct violated her due process rights.  The U.S. Court of Appeals affirmed the judgment for the Eighth Circuit.  However, the appeals court, citing Bell, acknowledged, “involuntary sterilization is not always unconstitutional if it is a narrowly tailored means to achieve a compelling government interest.”[12]

Even today, as we near the 25th anniversary of the Americans with Disabilities Act (“ADA”), several states retain a form of involuntary sterilization law on their books.  A few even retain the original statutory language, which labels the targets of these procedures as possessing hereditary forms of “idiocy” and “imbecility,” and state that the best interests of society would be served by preventing them from procreating.[13]

In fact, there appears to be a growing trend toward sterilizing people with intellectual or psychiatric disabilities.  Locally, in the fall of 2011, the Massachusetts Department of Mental Health filed a petition to have the parents of a woman with a psychiatric disability appointed as temporary guardians in order to consent to an abortion, despite the fact that the woman had refused such a procedure, citing her religious beliefs.[14]  The court ordered that the woman’s parents be appointed as co-guardians and said she could be “coaxed, bribed, or even enticed … by ruse” into a hospital where she would be sedated and an abortion would be performed.[15]  The judge also ordered the facility that performed the abortion to sterilize the woman “to avoid this painful situation from recurring in the future.”[16]  The decision was reversed on appeal.  With regard to the sterilization order, the appeals court ruled, “No party requested this measure, none of the attendant procedural requirements has been met, and the judge appears to have simply produced the requirement out of thin air.”[17]  In overturning the order to terminate the pregnancy, the court stated, “The personal decision whether to bear or beget a child is a right so fundamental that it must be extended to all persons, including those who are incompetent.”[18]  The appropriate result of the proceedings does not erase its troubling origin – a state agency that intervened to terminate a pregnancy based on the disability of the pregnant woman, despite her objection to having an abortion.

Shamefully, the power of the eugenics ideology persists.  Today, as NCD’s Rocking the Cradle reveals, people with disabilities continue to encounter significant legal, medical, and familial resistance to their decision to become parents.[19]

 

Discrimination in the Child Welfare System

Parents with disabilities face multiple layers of discrimination from the moment they enter the child welfare system.  For example, in 2010, a Missouri couple had their two-day-old daughter taken into custody by the state because both parents were blind.[20]  This removal was not based on allegations of abuse, just a fear that the parents would be unable to care for their daughter.  Because the couple was presumed unfit, for nearly two months they were permitted to visit their daughter only two to three times a week, for just an hour at a time, with a foster parent monitoring.[21]  Questions arose within hours of their daughter’s birth, after awkward first attempts at breast-feeding – something many new mothers experience.  Following this incident, a nurse wrote on a chart, “The child is without proper custody, support or care due to both of parents being blind and they do not have specialized training to assist them.”  “Her words set into motion the state mechanisms intended to protect children from physical or sexual abuse, unsanitary conditions, neglect, or absence of basic needs being met.”[22]  A social worker from the state came by the mother’s hospital room and asked her a variety of questions about how they would care for their daughter.  The social worker then told the parents they would need 24-hour care for their daughter, which the parents replied they could not afford and did not need.  Nonetheless, their daughter was taken into foster care, and a 57-day battle ensued before they were finally reunited with her.[23]

Unfortunately, the experience of the above mentioned parents is not unique for parents with disabilities.  Parents with disabilities and their children are overly, and often inappropriately, referred to child welfare services and, once child welfare services become involved, are separated at disproportionately high rates.  Indeed, research reveals removal rates as high as 70 percent to 80 percent where parents have a psychiatric disability,[24]  and from 40 percent to 80 percent when the parent has an intellectual disability.[25]  Likewise, parents with physical disabilities as well as the deaf and blind communities also report extremely high rates of child removal and loss of parental rights. [26]

The reasons for this pervasive discrimination are myriad.  First, as recently as 2010, a study found that 37 states, including Massachusetts, still contain disability as grounds for terminating parental rights.[27]  These laws often rely upon antiquated and offensive terminology, vague definitions of disability, and place emphasis on a parent’s diagnosis or condition rather than on their actions and behaviors as parents.[28]  As researchers Elizabeth Lightfoot and Traci LaLiberte of the University of Minnesota note, “When a parent’s disability is explicitly included in legislation outlining the grounds for termination of parental rights, the disability can easily become the focus of a child protection case, even though the statutes do not say it can be the sole grounds for termination.”[29]

Moreover, parents with disabilities contend with the disparate impact of certain provisions of the federal Adoption and Safe Families Act of 1997 (“ASFA”);[30] perceived limits on the application of the ADA, especially at the termination of parental rights phase;[31] bias, speculation, and the “unfit parent” standard;[32] and a lack of training in relevant systems regarding parents with disabilities.[33]

 

Bias in the Family Law System

Similarly, parents with disabilities who are seeking or defending custody or visitation rights often encounter a family law system that is riddled with practices that discriminate against them and lacks familiarity regarding parents with disabilities and their children.  For instance, in 2009, Kaney O’Neill, a veteran and quadriplegic mother, faced an unexpected battle when her former boyfriend filed for custody of their 10-week-old son, alleging that Kaney was “not a fit and proper person” to care for their son and that her disability “greatly limits her ability to care for the minor, or even wake up if the minor is distressed.”[34]  Refuting this allegation, Kaney demonstrated her ability to care for their son.  Indeed, she had prepared for motherhood by working with an occupational therapy program for expectant mothers and parents, adapting her house for parenting, securing adapted baby care equipment, and using personal assistants to help her as needed.[35]  Illustrating the bias that pervades the family law system, an attorney who was not affiliated with the case remarked, “Certainly, I sympathize with the mom, but assuming both parties are equal (in other respects), isn’t the child obviously better off with the father?”  This attorney, who has specialized in divorce and custody cases for more than 40 years, said that Kaney “would likely not be able to teach her son to write, paint or play ball.”  The attorney went on to comment, “What’s the effect on the child—feeling sorry for the mother and becoming the parent?”  Kaney’s battle endured for a year-and-a-half before both parties came to an agreement that gives the father visitation rights.[36]  Although she was elated with the outcome, Kaney told reporters that she was “…disappointed that the courts allow for someone to question your ability to have custody based on your disability.”[37]

Across the country, parents with disabilities encounter a patchwork quilt of state domestic relations laws.  Some state laws overtly discriminate against parents with disabilities, and many fail to protect parents from unsupported allegations that they are unfit or create a detrimental impact on their children solely based on their disability.[38]

Family courts apply the “best interest of the child” standard to determine custody and visitation matters.  Most states have developed their own list of factors to determine this standard, but the best interest analysis always allows the consideration of a parent’s “health.”[39]  All too often, a parent’s disability is classified as a “health concern” and a discredit to the parent’s ability to provide for the best interests of a child.  Because of considerable attitudinal prejudice regarding disability, the mere presence of disability is often used against the parent.  The prevalence of this type of bias and lack of cultural competence is seen throughout unpublished court documents and evaluations, which use of offensive phrases such as “afflicted,” “wheelchair bound,” “suffering” from a particular disability, and the like.[40]  Such cases frequently reflect underlying biased presumptions that it is not in a child’s best interest to live with – or in some cases even visit – a parent with a disability.

Custody and visitation decisions should be based on the best interest of the child; a parent’s status as having a disability should be irrelevant to the analysis without an evidentiary showing of a nexus between the parent’s disability and a detrimental impact on the child.

 

Inequity in the Adoption System

Despite a growing need for foster and adoptive parents, the foster care and adoption systems are replete with discriminatory practices that forestall prospective parents with disabilities from opening their hearts and homes to children in need.[41]  Illustrating the discrimination often encountered by prospective parents with disabilities, NCD’s Rocking the Cradle recounts Rachel and her partner’s heartbreaking story:

In 1995, when Rachel and her partner (both wheelchair users) decided to adopt, they had no idea they were embarking on a 15-year journey to become parents.  They contacted the local child welfare agency to express interest in becoming foster or adoptive parents.  They were immediately told that because of their disabilities they were not qualified.  After they worked their way “up the chain” and threatened a lawsuit, the agency finally allowed them to apply.  The couple met all the requirements and completed the necessary training.  Soon after that, a brother and sister were placed with them.  After only three months, the agency removed the foster children because their birth mother did not want them placed with a disabled couple.  The agency offered another child, who proved to be an inappropriate match.  Nearly five years later, with no communication from the agency, Rachel and her partner went through the training process again.  Despite successful completion of training a second time, they never heard from the agency.

In 2004, after Rachel’s partner started a new job that paid well, the couple decided to apply for private adoption, hoping a private agency would better engage and assist prospective parents with disabilities.  But the private adoption process was also riddled with discrimination.  In 2006, the couple applied to adopt a young girl.  After a home study and nearly two years of silence, they inquired again.  Finally, in early 2009, Rachel and her partner were allowed to meet a child.  In March 2009, the agency contacted the couple and told them that the girl’s foster parents were relinquishing her (which Rachel and her partner assumed was owing to her significant intellectual and psychiatric disabilities) and asked if they would like to become her foster parents.  They agreed and she moved into their home in April 2009.  In June 2010, 15 years after beginning their journey to become parents, Rachel and her partner adopted their daughter.  Tragically, Rachel’s partner passed away five months later.[42]

Many people with disabilities seek to form families through domestic adoption.  For some, the type of disability may make adoption the sole means by which parenting becomes possible.  Unfortunately, discriminatory practices often impede access to domestic adoption.  Many prospective parents with disabilities are categorically denied the opportunity to adopt because of their disability, while others encounter bias and speculation concerning their parenting abilities.[43]  Owing to the unspoken ranking system used among domestic adoption agencies, prospective adoptive parents with disabilities are often completely precluded from adopting or forced to wait for indefinite periods before a match is found.[44]  As stated by attorney Brenda K. DeVries, “[i]n order to place as many children as possible, no one group of prospective parents should ever be categorically excluded.”[45]

Prospective parents with disabilities encounter varied results with international adoption.[46]  Some nations have less stringent requirements, and international home studies tend to be less rigorous.  On the other hand, some countries categorically deny prospective parents with disabilities.  For instance, of the top five sending countries in 2011, three had eligibility criteria that completely or nearly precluded prospective parents with disabilities from adopting children from their countries.[47]  Moreover, prospective adoptive parents with disabilities often face barriers to accessibility and travel.  For example, some prospective parents with disabilities may need specialized equipment, personal assistance services, accessible hotels, and transportation.  This can be cost-prohibitive for some, thus precluding them from international adoption.

 

Barriers to Accessing Assisted Reproductive Technologies

Assisted reproductive technologies (“ART”) can allow many people to procreate who would otherwise be unable to do so.  However, many people with disabilities face significant, and sometimes insurmountable, barriers to receiving ART.  ART providers regularly engage in discriminatory practices against people with disabilities.  Moreover, the growing costs of ART, combined with the limited insurance coverage for these treatments, leave many people with disabilities, who have lower incomes and greater expenses, unable to afford the treatment.[48]

Discriminatory practices by ART providers are not surprising in light of the significant and pervasive obstacles people with disabilities encounter when accessing reproductive health care.  As discussed in the NCD report The Current State of Health Care for People with Disabilities, women with disabilities require health services related to sexuality, reproductive care, and childbearing, just as women without disabilities do.[49]  However, social misperceptions and stereotypes about disability can make it difficult for women with disabilities to obtain information, medical care, and services to ensure that their reproductive needs are met.[50]  Other barriers to reproductive health care faced by people with disabilities include inaccessible facilities; limited professional training and competency of primary care and reproductive care specialists; inadequate or no health insurance coverage for visits to specialists; poor physical access to usable and adapted or specialized examination and diagnostic equipment; and negative or discriminatory provider attitudes.[51]

Regrettably, people with disabilities often contend with stereotypes and ignorance by ART providers, as well as health care providers generally.  Likening this to the eugenics philosophy, law professor Carl H. Coleman says,

Our society has a long history of efforts to prevent people with disabilities from having children, a history in which the medical profession played an especially prominent role.  While we no longer embrace the coercive eugenics policies of the early twentieth century, the perception that some individuals with disabilities are inherently incapable of being parents remains common in our society.  Hence, there is a real danger that disability-related denials of ART will be based on ignorance or bias against people with disabilities, even more so than when physicians deny individuals with disabilities other types of medical care.[52]

 

What is Massachusetts Doing?

This legislative session, the Massachusetts Joint Committee on the Judiciary considered a comprehensive bill that would prohibit discrimination against parents with disabilities in family law and child welfare proceedings.  House Bill 1379, An Act Prohibiting Discrimination Against Adults with Disabilities in Family and Juvenile Court Proceedings (hereinafter “HB 1379”), was introduced by Representative Paul Heroux and co-sponsored by 15 additional legislators.  Despite significant support by the disability community, in late June, HB 1379 was sent to study, effectively killing it for the remainder of the session.

HB 1379 requires that, when a court uses a parent’s disability as a factor in a custody or visitation determination, the court must have written findings to determine whether a parent’s disability causes harm to his or her child.  This law would also require courts to determine whether the harm to the child can be alleviated by “adaptive parenting equipment” or “supportive parenting services,” which are both defined in the bill.  Moreover, HB 1379 raises the burden of proof to preponderance of the evidence for most domestic relations matters concerning parents with disabilities and to a clear and convincing standard for child welfare proceedings where a parent has a disability.

HB 1379 is consistent with current Massachusetts case law, federal and state anti-discrimination law, and a trend in state family law.  Notably, HB 1379 will not cost the state money to implement and may even save the state money by preventing unnecessary foster care placements.

HB1379 was an important step forward in ensuring the rights of parents with disabilities in Massachusetts, and the disability community urges the Commonwealth to swiftly pass it in the next legislative session.  If passed, Massachusetts will join the ranks of other states that have enacted similar laws – Idaho, Missouri, Kansas, Tennessee, Oregon, and Washington.

 

Conclusion: A Call to Action to Advocates and Policymakers

As this article demonstrates, parents and prospective parents with disabilities face systemic and pervasive discrimination when exercising their fundamental right to raise families.  The legal system is not sufficiently protecting the rights of parents with disabilities and their children.  Leadership is needed within the legal community as well as by policymakers and state advocacy groups in Massachusetts.  Whether action is taken as an amendment, a regulatory change, or a new law, the need for action is timely and clear.

In Massachusetts, the Executive Office of Health and Human Services, Department of Children and Families, Department of Public Health, and Massachusetts Judicial Branch must take immediate action to eradicate discriminatory practices within child welfare, family law, adoption, and assisted reproductive technologies.  These agencies must swiftly revise policies and procedures that are discriminatory and amend regulations to ensure the rights of these families.  In addition, state agencies must provide training on parents with disabilities to all relevant personnel.

Action by litigators and research by legal scholars must also be undertaken to determine ADA violations that may exist in the above mentioned areas.  Unquestionably, the legal community plays an integral, and difficult, role in ensuring that these families are afforded the rights they deserve.

Although parents with disabilities are especially affected by the issues discussed here, they are not alone.  Indeed, as attorney Christopher Watkins has stated, in no community is –

 the welfare of children . . . served by breaking up families based on fear and stereotype.  If we are truly concerned about the welfare of children, we should invest more money and energy in preventive services for families rather than in parental rights termination and foster care.  Our conception of the parent or parents as individuals, standing alone, without help from the broader community, does children no service.[53]

 

Robyn M. Powell is an Attorney Advisor at the National Council on Disability (NCD), an independent federal agency that advises the President and Congress on matters concerning people with disabilities.  Ms. Powell has dedicated her career to disability rights and has previously served as the Disability Rights Program Manager at the Equal Rights Center, as Assistant Director for Policy and Advocacy at the Disability Policy Consortium, and Staff Attorney at Greater Boston Legal Services.  While in law school, Ms. Powell interned for both the National Council on Disability and the Disability Law Center, the Massachusetts Protection & Advocacy agency.  Ms. Powell is principal author of NCD’s Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and their Children.  As a national expert on the rights of parents with disabilities, Ms. Powell frequently presents on the topic and has been interviewed by various news outlets, including NPR, BBC, ABC News, and the Associated Press.

Ms. Powell holds a Bachelor of Science degree in Social Work from Bridgewater State University and a Juris Doctor from Suffolk University Law School.

—————

[1] Meyer v. Nebraska, 262 U.S. 390, (1923).

[2] Pierce v. Society of Sisters, 268 U.S. 510 (1925).

[3] Id. at 535.

[4] See, Stanley v. Illinois, 405 U.S. 645 (1972); Smith v. Organization of Foster Families, 431 U.S. 816 (1977); Quilloin v. Walcott, 434 U.S. 246 (1978);Troxel v. Granville, 530 U.S. 57 (2000).

[5] National Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children (hereinafter “NCD Rocking the Cradle”) (September 2012) available at http://www.ncd.gov/publications/2012/Sep272012/.  This article is adapted from NCD’s report.

[6] Michael G. Silver, Note, Eugenics and Compulsory Sterilization Laws: Providing Redress for the Victims of a Shameful Era in United States History, 72 Geo. Wash. L. Rev. 862, 864 (2004).

[7] Paul A. Lombardo, Medicine, Eugenics, and the Supreme Court: From Coercive Sterilization to Reproductive Freedom, 13 J. Contemp. Health L. & Pol’y  and Policy 1, 3 (1996).

[8] Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell (Baltimore, MD: John Hopkins University Press, 2008).

[9] Buck v. Bell, 274 U.S. 200, 208 (1927).

[10] Estate of C.W., 640 A.2d 427 (Pa. Super. Ct. 1994), cert. denied, 115 S. Ct. 1175 (1995).

[11] Vaughn v. Ruoff, 253 F.3d 1124 (8th Cir. 2001).

[12] Id. at 1129.

[13] The following states retain dangerous and offensive statutory language that authorizes a court to order the involuntary sterilization of a person with a disability: Arkansas (Ark. Code Ann. §20-49-101); Colorado (Colo. Rev. Stat. §27-10.5-130); Delaware (16 Del.C. §5712); Georgia (Ga. Code. Ann. §31-20-3); Maine (34-B M.R.S.A. §7010); North Carolina (N.C.G.S.A. §35A-1245); Oregon (O.R.S. §436.205); Utah (U.C.A. 1953 §62A-6-102); Vermont (18 V.S.A. §8705 et seq.); Virginia (Va. Code Ann. §54.1-2975 et seq.); West Virginia (W.Va. Code, §27-16-1 et seq. (uses especially offensive language regarding the best interests of society).

[14] Guardianship of Mary Moe, 960 N.E.2d 350 (Mass. App. Ct. 2012).

[15] Id. at 353.

[16] Id.

[17] Id. at 355.

[18] Id. at 353.

[19] Carl H. Coleman, Conceiving Harm: Disability Discrimination in Assisted Reproductive Technologies, 50 UCLA L. Rev. 17, 24 (2002).

[20] Eric Schultz, Blind Independence Couple Gets Newborn Back after 57 Days, NBC Action News (July 21, 2010), http://www.nbcactionnews.com/dpp/news/local_news/blind-kansas-city-couple-gets-newborn-back-after-57-days.

[21] Id

[22] Id.

[23] Id.

[24] Loran B. Kundra & Leslie B. Alexander, Termination of Parental Rights Proceedings: Legal Considerations and Practical Strategies for Parents with Psychiatric Disabilities and the Practitioners Who Serve Them, 33 Psychiatric Rehabilitation Journal, 142, 143 (2009).

[25] Elizabeth Lightfoot et al., The Inclusion of Disability as a Condition for Termination of Parental Rights, 34 Child Abuse & Neglect 928 (2010); Maurice Feldman, “Parents with Intellectual Disabilities: Implications and Interventions,” in J. Lutzker (Ed.), Handbook on Child Abuse Research and Treatment (pp. 401–420) (New York, Plenum Press: 1998).

[26] NCD Rocking the Cradle, supra at 92.

[27] Lightfoot et al., supra at 930.

[28] See NCD Rocking the Cradle, supra at Appendix B, for a state-by-state analysis of dependency statutes and their inclusion of disability.

[29] Elizabeth Lightfoot & Traci LaLiberte, Parental Supports for Parents with Intellectual and Developmental Disabilities, 49 Intellectual and Developmental Disabilities 389 (2011).

[30] See generally, NCD Rocking the Cradle, supra at 83 et seq.  While the goals of ASFA are laudable, the consequences can be devastating, especially for parents with disabilities and their children.  For example, ASFA’s key provision, the “15/22 rule,” requires states to file a petition for TPR if a child has been in foster care for 15 of the most recent 22 months (even shorter time frames, defined by state law if the child is an infant), which is often challenging for parents with disabilities to comply with.  In addition, although ASFA requires states to make “reasonable efforts” to preserve a family before moving the child to an out-of-home placement and to reunify the family if a child has been removed, the vagueness of this term, coupled with the unadapted services typically provided to parents with disabilities, often results in “reasonable efforts” not being fairly applied to parents with disabilities.  Finally, ASFA allows child welfare workers to engage in concurrent two-track planning for children in out-of-home placement, which research shows is not equally engaged in for parents with disabilities.

[31] Id.; As NCD’s Rocking the Cradle, demonstrates, courts have resisted ADA defenses in child welfare proceedings or incorrectly held that the ADA does not apply to termination of parental rights proceedings.

[32] Id.; Beginning with the investigation into a report of child maltreatment, bias pervades the child welfare system at every step.  Termination of parental rights generally hinges on “unfitness.”  For parents with disabilities, demonstrating “fitness” can be insurmountable because of the significant speculation they face.  Presumptions of unfitness are most obvious in cases where the parent has never actually had custody of the child, as illustrated by the above story of the Missouri parents.

[33] See generally, NCD Rocking the Cradle, supra at 83 et seq.  An overarching lack of knowledge concerning parenting with a disability, particularly the use of adaptive parenting equipment or supports, often leads to child welfare workers and others engaged in custody determinations making uninformed decisions concerning capacity.

[34] Sara Olkon, Disabled Mom Fighting to Keep Her Son, Chicago Tribune (December 20, 2009), http://articles.chicagotribune.com/2009-12-20/news/0912190290_1_disabled-parents-custody-mom.

[35] Through the Looking Glass, Legal Program, Battle for the Rattle: A Soldier Mom Story of Custody Court, Disability, and Mothering, available at http://pwd-legalprogram.org/Battle-for-the-Rattle.html.

[36] Sarah Schulte, Disabled Single Mom Talks about Challenges of Raising Son, ABC 7 Chicago (May 4, 2011), http://abclocal.go.com/wls/story?section=news/local&id=8112269.

[37] Id.

[38] See generally, NCD Rocking the Cradle, supra at 136 et seq.

[39] Ella Callow et al., Parents with Disabilities in the United States: Prevalence, Perspectives, and a Proposal for Legislative Change to Protect the Right to Family in the Disability Community, 17 Tex. J. C.L. & C.R. 9-42 (2011).

[40] Megan Kirshbaum et. al., Parents with Disabilities: Problems in Family Court Practice, 4 J. Ctr. for Fam. Child & Cts. 27, 37-38 (2003).

[41] See generally, NCD Rocking the Cradle, supra at 181 et seq.

[42] Id.

[43] Id.

[44] Id.

[45] Brenda K. DeVries, Health Should Not Be a Determinative Factor of Whether One Will Be a Suitable Adoptive Parent, 6 Ind. Health L. Rev. 137, 141–142 (2009).

[46] NCD Rocking the Cradle, supra at 200.

[47] U.S. Department of State, “Statistics – Intercountry Adoption,” available at http://adoption.state.gov/about_us/statistics.php.

[48] See generally, NCD Rocking the Cradle, supra at 205 et seq.

[49] National Council on Disability, The Current State of Health Care for People with Disabilities (2009), available at http://www.ncd.gov/publications/2009/Sept302009.

[50] Id.

[51] Id.

[52] Coleman, supra at 20.

[53] Chris Watkins, Comment, Beyond Status: The Americans with Disabilities Act and the Parental Rights of People Labeled Developmentally Disabled or Mentally Retarded, 83 Calif. L. Rev. 1415, 1475 (1995).

 

The Medical Use of Marijuana and Legal Issues Associated with MA Registered Marijuana Dispensaries

By: Andrew S. Levine, Esq., Robert K. Blaisdell, Esq., and Kathleen A. Harrell, MPH

This is the first article in a two-part series on the medical use of marijuana in Massachusetts. This article addresses some of the issues associated with opening a registered marijuana dispensary (RMD). The second article will address physician and clinician issues associated with RMDs.

See Exhibit 1 [Chart] here.

 Background Information

In November 2012, sixty-three percent of Massachusetts voters approved a ballot initiative allowing qualified patients with debilitating medical conditions to purchase and possess marijuana.[1]  This measure – An Act for the Humanitarian Medical Use of Marijuana, Chapter 369 of the Acts of 2012 – became law on January 1, 2013, making Massachusetts the eighteenth state in the nation (along with the District of Columbia)[2] to approve the use of marijuana for medical purposes.[3]  The newly-enacted law eliminated state civil and criminal penalties for the possession of marijuana for individuals who are certified by a physician as having at least one statutorily-defined debilitating clinical condition,[4] and who may benefit from use of the drug.  Additionally, the law provided for the implementation of up to thirty-five medical marijuana treatment centers (MMTCs) across the Commonwealth.[5]  Furthermore, the law charged the Massachusetts Department of Public Health (DPH) with promulgating regulations for the implementation of treatment centers, which DPH now refers to as registered marijuana dispensaries (RMDs), and creating a policy framework for qualified patients to obtain written certification from physicians for medically-necessary marijuana.[6]  In early 2013, DPH carried out a public engagement process – through listening sessions, hearings, and a public comment period – seeking feedback on both the proposed regulations, as well as the overall selection process for RMDs.  On May 8, 2013, the Massachusetts Public Health Council unanimously approved regulations that outline the registration process for qualifying patients, personal caregivers and certifying physicians; set forth a process for obtaining hardship cultivations; and define the operational aspects of RMDs.[7]

On August 2, 2013, DPH launched the first of two phases in the RMD request for proposal process.  During this initial phase, one hundred eighty-one applications were received by DPH with one hundred fifty-nine applicants moving on to the second phase.  Shortly thereafter, DPH issued the second phase of the proposal process, with one hundred organizations submitting applications for review.  These processes required applicants to manage local zoning requirements around leases for potential dispensaries, obtain support from their designated municipalities, adhere to state laws and regulations, facilitate suitability filings, and devise the necessary infrastructure to operate a sustainable RMD.  Earlier this year, DPH issued the results of the two-phase process, and selected twenty dispensaries for provisional status, invited eight dispensaries to seek alternative locations, and denied seventy-two applications outright. Upon selection of the twenty applicants for provisional status, DPH staff began conducting a “verification phase” of the selected organizations, whereby DPH verified the accuracy of each application’s contents, such as letters of support, meeting with municipalities to confirm siting and local support, reviewing each applicant’s operational and leadership plans, and having applicants attest to all submitted application materials (for more information on the overall DPH process for RMDs, please see Exhibit 1).[8]  On June 27, 2014, DPH announced that eleven of the twenty RMD applicants advanced to the “inspection phase” of the selection process while the remaining nine were not selected to move forward.  These eleven proposed dispensaries will bring ninety-seven percent of the Commonwealth’s population within thirty miles of a RMD, ensuring patient access to medical marijuana across the Commonwealth.  Additionally, DPH also announced that five highly-scored applicants that were not selected in the first two-part process of licensing were invited to reapply for a license in any of seven unrepresented counties: Berkshire, Hampden, Franklin, Bristol, Suffolk, Nantucket and Dukes.  Under a new timeline devised by DPH, these five applicants have until August 29, 2014 to submit their revised applications.

 

Local/Municipal Legal Issues

The most common difficulties faced by RMD applicants concern municipal and local legal issues, including meeting RMD siting requirements, obtaining local political and community support, ensuring that leadership can meet submitted timelines for opening, and complying with local zoning ordinances.  In September 2013, shortly after submission of the first round of applications, a State House News Service analysis found that nearly one-third of all Massachusetts’ municipalities had placed temporary moratoriums on the implementation of RMDs (which many cities and towns still refer to as MMTCs).[9]  Since that time, most of these communities, as well as many others, have enacted zoning ordinances governing the siting of RMDs.

RMD siting requirements are governed by 105 CMR 725.000: Implementation of an Act for the Humanitarian Medical Use of Marijuana (the Regulations).  The Regulations state that a RMD:

[S]hall comply with all local requirements regarding siting, provided however that if no local requirements exist, a RMD shall not be sited within a radius of five hundred feet of a school, daycare center, or any facility in which children commonly congregate.  The distance is measured in a straight line from the nearest point of the facility in question to the nearest point of the proposed RMD.[10]

The Regulations only control, however, when there is no local ordinance in place.  And many of the cities and towns that have adopted ordinances that address specific siting requirements are more stringent than the DPH Regulations.  For example, the City of Cambridge outlines, in Ordinance Number 1359, two overlay districts for RMDs.[11]  This ordinance also discusses appropriate dimensional requirements for a RMD building, parking and loading logistics, signage restrictions and special permit criteria.  These are all common requirements that most cities and towns have within their RMD zoning laws that are not mandated by the Commonwealth.

Another common issue for most RMDs involves the proximity of dispensaries to places where children commonly congregate.  In 2013, DPH issued its Guidance for Municipalities Regarding the Medical Use of Marijuana (updated December 13, 2013) (DPH Guidance).  In its Guidance, DPH specified that the “500 feet restriction around areas where children commonly congregate” that is addressed in the Regulations is measured from “building to building rather than property line to property line.”  However, DPH went on to say that:

[A] facility is not limited to a building.  For example, a playground outside a school would be considered a facility where children congregate, so in that case the line would be measured from the edge of the playground to the nearest point of the building that would house the potential RMD.  Also, a RMD may have a cultivation area, which would be considered a facility.  In that case, the line would be measured from the edge of the fence surrounding the cultivation area to the facility where children congregate.[12]

Some cities and towns take this a step further, measuring property line to property line without regard for whether the applicable structures are set back from property lines, making the standards for siting RMDs even more rigorous.

The DPH Guidance also defines a“facility in which children commonly congregate” as:

[D]ance schools, gymnastic schools, etc. if children commonly congregate there in a structured, scheduled manner.  It includes facilities where services or programs targeting children or youth take place.  It includes a private home housing a family day care center, but not a private home where children happen to live. It includes a city or town park, if the park includes play structures intended for use by children. It does not include other facilities, such as ice cream shops, where children may happen to congregate, but not in a structured, scheduled manner.[13]

For this specific issue, DPH has stated that an analysis around the common congregation of children should consider “whether children congregate at any specific place according to a schedule, how often they congregate, and whether the purpose of congregating is an activity designed for or targeted to children.”[14]  In addition to the DPH constraints, many cities and towns have added their own restrictions, prohibiting RMDs from locating within close proximity to public parks, conservation land, or establishments that offer play groups or youth activities.  To address this issue, most RMD applicants have reached out to local counsel within their city, town or district to ensure they understand specific siting requirements and are aware of any potential abutter issues.

RMDs also seek to garner community support and work with local municipalities to ensure access to appropriate public services, such as police, fire, and other emergency services – all of which are paid for, in part, by local taxes. Although RMDs are required to be nonprofit organizations under Massachusetts law[15], a nonprofit organization is not automatically a tax-exempt organization. Nonetheless, the MA Department of Revenue will decide whether these entities will be assessed a state tax and, if so, at what rate.  Consequently, RMDs are entering into agreements with local cities or towns to make payments that can be put toward municipal services, known as Good Will Contracts or Good Citizen Agreements.  These arrangements are similar to payment-in-lieu-of-taxes (PILOT) programs, and provide the municipality with appropriate monies for the dispensaries’ consumption of public services.  However, these agreements can be challenging, both to devise and negotiate.  For example, a RMD may want to be a “good neighbor” to its local city or town by providing the necessary monies needed to offset its utilization of local services, but this desire to work with local officials must be balanced against the need to run a sustainable organization.  Moreover, most municipalities are seeking Good Citizen Agreements or some other form of financial support in the first year of operations; however, this type of monetary commitment when an organization is young can impact both the capital and operational budgets of the RMD.  To help ensure an adequate response to a municipality that is also appropriate for the organization’s finances, applicants must devise realistic financial plans comprised of feasible budgets and rational implementation strategies.

 

State Legal Issues

RMDs also face various state compliance issues when opening a dispensary.  For most organizations, this means devising continuous quality initiatives to ensure compliance with state laws and regulations. Currently, the selected applicants are working to operationalize dispensaries. Prior to receiving full licensure via DPH, the RMDs will need to provide DPH staff with policies and procedures addressing the following areas:

  •  Storage of marijuana;
  • Descriptions of the various strains to be cultivated and dispensed;
  • Procedures for recordkeeping and inventory protocols;
  • Plans for quality assurance and appropriate product testing to eliminate contaminants;
  • Staffing plans and staffing record compliance;
  • Security plans;
  • Emergency procedures including disaster plans, substance-free workplaces policies;
  • A plan for the maintenance of confidential information;
  • A description of RMD patient education activities;
  • Standards and procedures to determine the price of marijuana including a sliding fee scale for patients with financial hardship;
  • Diversion plans;
  • Procedures for voluntary and mandatory recalls of marijuana;
  • Procedures for ensuring damaged or deteriorated marijuana is segregated from the rest of the inventory and destroyed;
  • Home delivery;
  • Transfers of marijuana between dispensaries;
  • Cultivation and distribution requirements; and
  • Waste disposal.

In total there are fourteen pages of regulations devoted to operationalizing a RMD.

Devising an overall operational framework and a complete set of operating policies and procedures for this type of organization can be daunting, especially when it is within a new and developing industry.  To help address this issue, many RMDs have formed relationships with dispensaries in other states that have been operating for many years, such as Maine or Rhode Island.  The existing out-of-state dispensaries provide those MA RMDs with baseline information around devising policies and procedures.  Other MA RMDs rely on consultants or previous experience to implement all the necessary steps to operate a dispensary.[16]  These compliance issues underscore the need for a strong leadership team at the RMD with healthcare and regulatory experience.  This team should also include at least one individual whose sole focus is on regulatory compliance.  Additionally (or alternatively), the RMD may want to contract with legal counsel to ensure that all local, state and federal laws are being met.

In addition to complying with the DPH Regulations, RMDs must also meet the legal requirements generally associated with running a state charitable organization.  RMDs must be incorporated under M.G.L. ch. 180, known as the public charities statute, and “must operate on a non-profit basis for the benefit of registered qualifying patients.”[17]  The RMD must also “ensure that revenue of the RMD is used solely in furtherance of its non-profit purpose.” [18]  To comply with these requirements, DPH expects that an RMD will be governed by a board of directors that will meet its duty of loyalty to the organization and its duty of care in carrying out their responsibilities.  Directors must act in compliance with the organization’s bylaws and for the purpose of furthering the organization’s mission – to provide access to marijuana for eligible patients and their caregivers.

Additionally, RMD management must develop and implement appropriate policies and procedures for suitability checks on all employees, including criminal offender record information (CORI) and other appropriate background checks.  All employees of a RMD are designated as dispensary agents, and as such, each RMD is required to adhere to these strict investigative procedures.  By having these appropriate safeguards in place, RMDs can ensure that there are no internal security issues for the organization.

 

Federal Legal Issues

In addition to state regulations, RMDs also face compliance issues on the federal level.  Federal law sometimes conflicts with state law, and what is permitted by the state may not be permitted by the federal government.  While the federal law seems to be evolving to become more favorable to the operation of a dispensary, significant concerns still exist.  For example, although many states have either de-criminalized or legalized marijuana, the cultivation, possession and distribution of marijuana for any purpose is still considered a federal crime.[19]  In August of 2013, in light of states passing legislation legalizing marijuana for medical use, the U.S. Department of Justice (DOJ) issued a memorandum to federal prosecutors providing guidance on the enforcement of marijuana laws under the Controlled Substances Act (CSA).  This memorandum states that Congress has determined marijuana is a dangerous drug and that the distribution and sale of marijuana is a serious crime “that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels.”[20]  Consequently, the DOJ remains committed to enforcing the marijuana laws under the CSA.  Furthermore, the memorandum goes on to say that state laws authorizing the production, distribution and possession of marijuana affect the traditional joint federal-state approach to narcotics enforcement.  Therefore, DOJ expects states to have established “strong and effective regulatory and enforcement systems that address the threat those [more lenient] state laws may pose to public safety.”[21]  Additionally, DOJ specifies that “in using their prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the DOJ’s enforcement priorities.”[22]  Rather, marijuana cases should be reviewed on a “case-by-case basis and weigh all available information and evidence, including, but not limited to, whether the operation is demonstrably in compliance with a strong and effective state regulatory system.”[23]  Therefore it appears that the DOJ is seeking to enforce the CSA by ensuring that their enforcement priorities are met by state and local governments.

Similarly, many dispensaries are confronting additional issues posed by the U.S. Drug Enforcement Administration (DEA).  To help ensure clinical compliance and the implementation of rigorous quality control plans, some RMDs employ or contract with a medical director to provide patients with information regarding the medical purpose of various strains of medical marijuana, and to answer questions that patients and consumers may have concerning the medical use of marijuana in general.  However, the DEA has taken a position on clinicians involved with RMDs, specifically, physicians serving as medical directors.  In June of 2013, DEA agents notified a few physicians serving as medical directors at RMDs in Massachusetts that they must either sever their ties with the organizations or relinquish their federal licenses to prescribe certain medications.[24]  In response, U.S. Representative Dana Rohrabacher (R-CA) sponsored a measure approved by the House last month to restrict the DEA from using its funding to impede state medical marijuana laws.[25]  Representative Steve Cohen of Tennessee and Representative Michael Capuano of Massachusetts each supported Rohrabacher’s bill and said that the DEA needed a clear directive concerning the medical use of marijuana.[26]  Additional details about the DEA’s position, as well as other issues related to physicians and the medical use of marijuana, will appear in the next Health Law Reporter as the second part to this series.

A second but equally important challenge for many dispensaries is the inability to open bank accounts to conduct business activities.  In many states, including California, Colorado and Massachusetts, many larger banks have declined to work with dispensaries due to fears that various federal enforcement agencies will impose penalties for violating federal banking law.  In January, U.S. Attorney General Eric Holder announced that his staff would review current banking rules to try to ease the apprehension that many lenders were having about doing business with RMDs.[27]  On February 14, 2014, the Department of the Treasury’s Financial Crimes Enforcement Network issued a guidance to clarify the Department’s “expectations” under the Bank Secrecy Act (BSA) concerning financial institutions seeking to provide services to marijuana-related businesses (Treasury Expectations).[28]  The Treasury Expectations outline the need for increased due diligence by financial institutions when working with marijuana-related entities.  In its Expectations, the Treasury states the following:

In assessing the risk of providing services to a marijuana-related business, a financial institution should conduct customer due diligence that includes: (i) verifying with the appropriate state authorities whether the business is duly licensed and registered; (ii)reviewing the license application (and related documentation) submitted by the business for obtaining a state license to operate its marijuana-related business; (iii) requesting from state licensing and enforcement authorities available information about the business and related parties; (iv) developing an understanding of the normal and expected activity for the business, including the types of products to be sold and the type of customers to be served (e.g., medical versus recreational customers); (v) ongoing monitoring of publicly available sources for adverse information about the business and related parties; (vi) ongoing monitoring for suspicious activity, including for any of the red flags described in this guidance;and (vii) refreshing information obtained as part of customer due diligence on a periodic basis and commensurate with the risk.  With respect toinformation regardingstatelicensureobtained in connection with such customerduediligence,a financial institution mayreasonablyrelyon theaccuracyofinformation provided bystatelicensingauthorities, wherestates makesuch information available.[29]

Furthermore, the Treasury Expectations remind lending institutions of their on-going obligation to file suspicious activity reports (SARs) when the institution knows, suspects, or has reason to know that any customer, including a RMD, is engaged in illegal activity.[30]  The Treasury Expectations also outline red flags to distinguish priority SARS in RMDs.  The Department makes it clear that isolated lapses in technical compliance are not enforcement priorities for the agency.  Instead, the Treasury will take enforcement action when it identifies systemic or significant failures to comply with the BSA.

The aforementioned challenges are just a small number of the issues currently facing RMDs as they seek to operationalize all aspects of the dispensaries and open in the coming months. As discussed, the Fall issue of the Health Law Reporter will focus on physician-related issues and the implementation of RMDs.

Andrew S. Levine is a partner at Donoghue, Barrett & Singal, where he directs the firm’s Health Law Regulatory practice.  Andrew counsels a broad range of healthcare providers on a variety of state and federal regulatory matters including Department of Public Health (DPH) licensure and Medicare certification proceedings; Determination of Need approvals for the transfer of ownerships of hospitals and ambulatory surgery centers; Determinations of Need approvals for hospital and nursing home construction projects as well for the acquisition of innovative services and new technology; DPH clinic and nursing home change in ownership proceedings; DPH architectural, plan review and licensure filings; state and federal agency quality of care enforcement actions; Medicaid rate and provider contracting issues; drug diversions; state and federal registration; Medicaid fraud investigations; and Board of Registration actions. He has represented clients in front of such agencies as the Health Policy Commission, the Office of Medicaid, the Department of Mental Health, the Executive Office of Health and Human Services, the Office of the Attorney General, the Executive Office of Elder Affairs and the Centers for Medicare and Medicaid Services. 

Robert K. Blaisdell is a partner in Donoghue Barrett & Singal’s Health Law practice. He works with healthcare clients to provide general business and corporate legal services and guidance on a wide range of issues, such as regulatory and corporate compliance; vendor contracting; HIPAA; medical staff credentialing and peer review; healthcare fraud and abuse, including Anti-Kickback, Stark Physician self-referral and False Claims Act analysis; nursing home and assisted living facility representation (including MassHealth audit appeals, transfers/discharges, and evictions). He has also appeared before various oversight agencies, such as the Massachusetts Commission Against Discrimination, Board of Registration in Nursing and the Board of Registration in Medicine. Bob is experienced in general corporate law, employment law, and litigation.

Kathleen Harrell is a law clerk at Donoghue, Barrett & Singal within the firm’s Health Law practice.  Kathleen has an extensive background in program development, public policy and strategic planning.  She is a J.D. candidate at New England Law Boston (expected, 2015).  In addition to her law and policy background, Kathleen holds a Master of Public Health degree from Boston University with dual concentrations in Health Law and Bioethics. She has written on diverse topics for a wide range of audiences, including action plans, issue briefs, and advocacy publications. 

 

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[1]Mass. Dep’t of Pub. Health, Guidance for Municipalities Regarding the Medical Use of Marijuana (2013).

[2] Currently, twenty-three states and the District of Columbia have approved the medical use of marijuana.

[3] Mass. Dep’t of Pub. Health, Guidance for Municipalities Regarding the Medical Use of Marijuana (2013).

[4] A “debilitating medical condition” is defined as “[c]ancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis and other conditions as determined in writing by a qualifying patient’s physician.

[5] Id.

[6] Id. at 2.

[7] 105 Mass. Code Regs. 725.000 et seq. (2014).

[8] Mass. Dep’t of Pub. Health, From Provisional to Final: A Rigorous Process for Registered Marijuana Dispensaries (2014), http://www.mass.gov/eohhs/docs/dph/quality/drugcontrol/medical-marijuana/medical-marijuana-flow-chart-for-dispensaries.pdf.

[9] Andy Metzger, Progress On Medical Marijuana Hits Local Hurdles Across Mass., State House News, Sept. 18, 2013, available at http://www.masslive.com/politics/index.ssf/2013/09/progress_on_medical_marijuana.html.

[10] Id.

[11] City of Cambridge, Ordinance 1359 (2013) available at http://www.cambridgema.gov/~/media/Files/CDD/ZoningDevel/Amendments/Ordinances/zngamend_1359_medmarijuana.ashx.

[12] Mass. Dep’t of Pub. Health, Guidance for Municipalities Regarding the Medical Use of Marijuana (2013).

[13] Mass. Dep’t of Pub. Health, Frequently Asked Questions Regarding the Medical Use of Marijuana (2013).

[14] Id. at 5.

[15] RMDs will not be tax-exempt under federal law, however, and will still be subject to federal taxation.

[16] Mass. Dep’t of Pub. Health, Guidance for Municipalities Regarding the Medical Use of Marijuana (2013).

[17] 105 Mass Code of Regs. 725.100(A)(1) (2014).

[18] Id.

[19] 21 U.S.C. 13 (2014).

[20] Memorandum from the U.S. Dep’t of Justice on Guidance Regarding Marijuana Enforcement (August 29, 2013) (on file with author).

[21] Id. at 2.

[22] Id. at 3.

[23] Id.

[24] Kay Lazar and Shelley Murphy, Lawmakers Slam DEA For Targeting Mass. Doctors, Boston Globe, June 11, 2014, http://www.bostonglobe.com/lifestyle/health-wellness/2014/06/11/congressmen-fault-dea-for-intimidating-massachusetts-doctors/MOQlJBKtCeKFI6nK6RQJ6O/story.html.

[25] Id.

[26] Id.

[27] David Ingram, U.S. to Adjust Rules to Let Banks Handle Marijuana Money – Holder, Reuters, Jan. 23, 2014, available at http://www.reuters.com/article/2014/01/24/usa-marijuana-banking-idUSL2N0KY03D20140124.

[28] Dep’t of Treasury. FIN-2014-G001. Bank Security Act Expectations Regarding Marijuana-Related Business (2014).

[29] Id. at 2-3.

[30] Id. at 3.