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. 

 

———–

[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.

Lawyering as Problem-Solving: Implications of Patient-Centered, Accountable Healthcare for the Legal Profession

By Samantha J. Morton, JD, Kirsten Meisinger, MD, Deborah Durant, JD, MA

1. Introduction

Health care delivery is rapidly changing in response to a number of new pressures and reform movements, for which the dominant fee-for-service model has proven inadequate to address. Many new organizational structures are converging and spotlight the increased importance of the patient’s perspective and lived experience in healthcare delivery redesign. Accountable care organizations (ACOs), with their focus on management of value-based care and total cost risk, have a financial incentive to understand what patients need to become or stay healthy, and to structure care teams, delivery systems, and budgets around those realities.[1] Complementing Massachusetts’ 2006 innovation of near-universal access to health insurance, the cost containment legislation signed in 2012 (Chapter 224 of the Acts of 2012, hereinafter referred to as “Chapter 224”) explicitly targets health disparities and provides that when setting up new payment structures, the system must engage in thoughtful risk adjustment methodologies to account for variation in the needs of populations that are more vulnerable to those disparities.[2] Moreover, healthcare organizations that seek certification as patient-centered medical homes (PCMHs) must demonstrate that they provide a range of meaningfully consumer-oriented services, such as extended hours, patient-friendly materials, and improved care coordination for patients as they move across the healthcare spectrum.[3] Additionally, several Massachusetts initiatives are pushing healthcare delivery systems to focus on behavioral health as a key driver of costs and to find ways to integrate primary mental healthcare across individual locations and larger health systems.[4]

These developments – especially the economic pressures of new financing methodologies – have triggered a more robust dialogue about the role of the healthcare system in addressing both the biological and social determinants of health.[5],[6] Healthcare providers increasingly are expected to help patients get and stay healthy, as opposed to merely treating patients’ diseases. Since the socio-economic context within which people function impacts their health in myriad ways,[7] institutions now disregard complex socio-economic drivers of poor health (and related healthcare costs) at their peril. As presciently noted in Malcolm Gladwell’s 2006 article in The New Yorker, Million Dollar Murray, a tiny percentage of patients (so-called “superutilizers”) generates a disproportionate amount of healthcare costs.[8] Indeed in 2011, one percent of patients in Camden, New Jersey generated one-third of the city’s healthcare costs.[9] The high cost of caring for our society’s most vulnerable people – combined with the already large and growing costs of care for people with chronic diseases like diabetes, heart failure and kidney failure – demand that health care institutions (a) control costs, but also (b) maintain high quality care, rather than limit care in the short-term and thus create higher costs down the road.[10] It no longer is a sufficient risk stratification strategy to simply identify patients with chronic disease; the delivery system also must assess a range of risk factors – such as food and housing insecurity, interpersonal and community violence, social isolation, and mental illness – that predict complex needs and complex care, if the system is to thwart associated higher costs.[11] These changes have the potential to align healthcare institutions in a new focus on the multi-dimensional determinants of health and chronic disease management; this kind of alignment could be a major force for health equity among populations that historically have been at highest risk for disparities in coverage, access to care, and health outcomes.[12]

Against this backdrop, attorneys should revisit how the legal profession intersects with the healthcare system. While legal risk management activity in healthcare typically has focused on issues such as medical malpractice, HIPAA compliance, and myriad regulatory obligations, lawyers have an important role to play in helping healthcare stakeholders manage another set of risks that the system is just beginning to confront more systematically. These risks relate to a patient’s socio-economic context and increase health disparities, reduce healthcare workforce productivity and efficiency, and trigger high-cost events such as avoidable hospital readmissions.[13] Many of these risk factors can be addressed, and some even prevented, through legal planning, guidance, and interventions.

2. Socio-Economic Context and Healthcare Delivery: Why Health Reform Matters

ACOs

The drive to cut overall healthcare costs, exemplified in the federal Affordable Care Act,[14] includes efforts to shift responsibility for increased costs back onto insurers and healthcare institutions via ACO structures. An ACO is a network of physicians and hospitals that shares financial and medical responsibility for providing coordinated, quality care to patients in a cost-effective manner.[15] The underlying concept is that providers in an ACO will take on upside financial risk and/or downside financial risk in relation to defined patient outcome benchmarks.[16] The ACO paradigm creates incentives for providers to develop delivery systems that maintain high quality care and to manage both short-term and long-term costs.[17] Functionally, ACOs are incentivized to recognize the downstream costs of limiting access to prevention, care coordination services, medications, timely follow-up with primary care for acute problems, and behavioral health services.

In this new economic reality, to which payers and institutions are adapting, it will be critical to identify and address a broader range of barriers to care and health. Historically, clinical teams have been best positioned to prioritize internal “process” barriers such as inadequate access to follow-up appointments. However, many barriers to health and care confronted by patients are socio-economic,[18] and the healthcare system is neither accustomed to having to address these complex issues, nor was it built to do so. Indeed, many of the highest-risk and highest-cost patients (so-called “superutilizers”)[19] have a preponderance of unresolved, untreated or under-treated mental health diagnoses like depression and addiction.[20] Mental Health Integration, frequently called Behavioral Health Integration (BHI), is now recognized as a crucial component of any successful ACO — with success defined as simultaneous improved health and decreased costs.[21]

Massachusetts has long been a leader in the movement to increase access to healthcare through health insurance, and provides lessons for the rest of the United States in the steps healthcare should take to succeed in this brave new world.[22] Indeed, the Massachusetts coverage expansion movement was sufficiently momentous to spur formation of global payment contracts in the Commonwealth several years ago.[23] However, coverage expansion alone does not guarantee good health or meaningful access to healthcare services. This reality was recognized in Chapter 224:

In developing additional standards for ACO certification, the [Health Policy Commission] shall consider the following goals for ACOs: . . . (4) to promote alternative payment methodologies consistent with the standards developed by the commission and the adoption of payment incentives that improve quality and care coordination, including, but not limited to, incentives to reduce avoidable hospitalizations, avoidable readmissions, adverse events and unnecessary emergency room visits; incentives to reduce racial, ethnic and linguistic health disparities in the patient population; and in all cases ensuring that alternative payment methodologies do not create any incentive to deny or limit medically necessary care, especially for patients with high risk factors or multiple health conditions[.][24] (emphasis added)

 . . .

The office of Medicaid shall ensure that alternative payment methodologies: (i) support the state’s efforts to meet the health care cost growth benchmark and to improve health, care delivery and cost-effectiveness; (ii) include incentives for high quality, coordinated care, including wellness services, primary care services and behavioral health services; (iii) include a risk adjustment element based on health status; (iv) to the extent possible, include a risk adjustment element that takes into account functional status, socioeconomic status or cultural factors; (v) preserve the use of intergovernmental transfer financing mechanisms by governmental acute public hospitals consistent with the Medical Assistance Trust Fund provisions in effect as of fiscal year 2012; and (vi) recognize the unique circumstances and reimbursement requirements of high Medicaid disproportionate share hospitals and other safety net providers with concentrated care in government programs.[25] (emphasis added)

Chapter 224 acknowledges that individuals do not come to the healthcare system on equal footing, even if they all technically are insured. There is a range of other factors that must be accounted for to achieve health equity in the Commonwealth.

There is another reason insurance coverage is not sufficient on its own: the American healthcare system is historically underfinanced in the areas of care that advance prevention and decrease costs (primary care and care coordination) and overfunded in areas that can drive up costs without improving health (sub-specialty care and high-cost, often unnecessary, procedures or tests).[26] In order to avoid a surge in healthcare costs from newly-insured but primary care naïve patients, ACOs in Massachusetts are expanding primary care services in the hope of improving the efficiency and quality of care delivered in primary care settings.[27] These changes are described as the “Patient-Centered Medical Home Model” of care and focus on patients’ health needs outside of the traditional “one doctor and one patient in a room together” style of care.[28]

PCMH

The Patient Centered Medical Home (PCMH) describes a care delivery model that is organized with the needs of patients at its center.[29] Concretely, this means:

  • Enhanced prevention screenings and careful follow-up on identified risks and problems;
  • Making care accessible beyond traditional “banker’s hours,” either by extending direct patient care into evening and weekend office hours, and/or providing 24 hour access to medical advice by phone or email;
  • Generating patient-oriented educational materials regarding chronic disease self-management tips and so forth (accounting for among other things, the needs of low literacy patients and English Language Learners)
  • Careful reconciling of patient-reported medication behaviors against what is noted in medical records; and
  • Thoughtful care coordination, since no single physician, or even doctor-nurse team, can deliver this type of comprehensive care to a population (panel) of patients.[30]

While the PCMH structure may seem like a one-size-fits-all solution, the complex dance of even a high-functioning PCMH team can quickly come undone by socio-economic factors entirely beyond the team’s control. For example, a patient may not be able to keep the necessary appointments due to a lack of transportation resources; the newest and best asthma medicines simply are not enough to counter the allergens in the substandard housing in which the patient resides; or the patient’s abusive partner prohibits him or her from having any further contact with healthcare professionals. Even in the realm of insured patients, those with chronic diseases frequently become overwhelmed by the monthly cost of even “low co-pay” medications; many of these patients either economize by buying medicines every-other-month or choose which ones to buy each month rather than take all of the recommended and necessary doses.[31] Clinicians, understandably, are not equipped to solve these foundational problems.

Notably, the patient profiled in Gladwell’s Million Dollar Murray article was “non-compliant” because he lacked an apartment to pass out in after a bender, somewhere safe to manage his chronic disease of alcoholism.[32] Housing instability is a key social determinant of health that shadows these highest-cost healthcare consumers.[33] Significantly, health insurers in several states have recently undertaken new initiatives to subsidize affordable housing.[34]

When a medical diagnosis is made, medical treatment teams rush to treat the problem and hopefully resolve the issue. When diagnosis of a socio-economic barrier to care/health[35] is made, the healthcare team’s resources are limited. As the healthcare system now grapples with appropriate and feasible treatments for these causes (often root causes) of disease and high healthcare costs, we should consider how the legal profession can support these efforts.

 

3. Social Determinants of Health (SDH): A New Frontier in Medicine

Physicians and nurses have long been trained to take a patient’s medical history. But exploring a patient’s social history and context, — beyond tobacco and alcohol use, sexual behavior risk factors, and use of car seats for young children – is a relatively recent development. In fact, systematic clinical screening for domestic violence is a surprisingly recent phenomenon.[36] Not only can conversations on topics such as income, personal safety, and immigration status be challenging, but many providers are understandably reluctant to screen for problemsfor which they may be unable to offer a remedy.[37] However, since institutions no longer can ignore these predictors of poor health and high costs, efforts to develop standardized screening tools and practices for a range of key SDH are underway.[38]

Healthcare institutions that have attempted to build infrastructure to address SDH – generally through increasing their allied health staff – have run up against a core challenge: under the dominant fee-for-service payment model, only clinical services are reimbursable by payers. Therefore, while a hospital could be reimbursed for clinical services provided to a patient by a licensed social worker (such as therapeutic counseling), it could not be paid for social worker efforts to connect patients to resources essential for day-to-day subsistence (such as SNAP benefits, housing subsidies, and more). To offset the costs of providing these additional services, some institutions have received philanthropic grant funding; however, this approach is not sustainable in the long-term.

In the last several years, the community health worker movement has spawned exciting pilot programs that integrate lay, culturally (and often linguistically) congruent outreach workers into healthcare teams to help patients overcome defined barriers to care.[39] In addition, a number of pilots are underway that seek to improve post-discharge care management, including successful leveraging of community-based resources.[40] Massachusetts again is a hotbed of innovation in this area.[41] To date, integration of these new team members has had the most traction in chronic disease managementcontexts (as opposed to primary care), and to the extent this new workforce is helping to eliminate barriers to health insurance coverage.[42] As these initiatives evolve, it will be important to connect the dots between (a) evidence of what exactly patients need to overcome barriers to care and health, (b) funding streams for community health work, and (c) the job description for this important workforce.

 

4. Big Problems Like SDH Demand Large Toolboxes

Medical institutions and professionals have developed their own unique set of problem-solving tools, which are essential to individual and population health. However, in this time of shifting paradigms, there is a greater recognition that the traditional toolbox is incomplete and collaboration with other disciplines will be important.[43] The legal profession can leverage its long history of tackling some of thorniest challenges confronting our country’s most vulnerable people (particularly in the realm of civil rights enforcement) for populations at the highest risk of health disparities: people of color, people with disabilities, English Language Learners, the LGBTQ community, and more. Further, lawyers are trained in a number of distinct strategies – including but going beyond traditional litigation – that solve problems when patients confront health-harming social or environmental conditions. This suite of skill sets will only become more relevant in an accountable care-oriented healthcare landscape:

Preventive law

In healthcare, preventive law[44] typically takes the form of compliance work, and is postured proactively – identifying legal risks before they convert into legal problems for a provider or institution. These same skills can be leveraged, productively, to support low-resource healthcare consumers who often interact with no less than ten powerful decision-makers simultaneously when attempting to access health-promoting benefits and services to which they are legally entitled. These interactions that comprise a person’s social ecology – with landlords, abusive partners, government agencies, and so forth – can have a profound impact on a person’s health trajectory. The healthcare sector should be fertile ground for proactive legal risk assessments for low-resource patients, since healthcare institutions increasingly will share an interest in anticipating and eliminating barriers to care and health.

Community lawyering

While determining the origins of disease (“pathogenesis”) has long been the focus of medicine, understanding and cultivating the origins of health (“salutogenesis”) may in fact represent the bigger challenge – and certainly one in which people themselves should be engaged. As healthcare continues an important dialogue about whether its consumers are “people” or “patients”, patient-centered care delivery models may ask: what steps will empower people to participate themselves in addressing social determinants of health? Community lawyers have vast experience to share on this subject.

Community lawyering encourages attorneys to meaningfully engage community members in advocacy that affects their lives, and to engage in multiple strategies to achieve their goals (including but not limited to outreach, facilitative leadership, and campaign feasibility exercises).[45] Community lawyers are the legal profession’s closest equivalent to community health workers, and the strongest legal community ambassadors for the healthcare notion of “patient engagement.” As patient-centered medical homes proliferate and providers operating in ACO environments re-balance expectations with patients regarding responsibility for disease prevention and management, community lawyers could be important allies in supporting patients who have been activated help manage their health.

Negotiation and Mediation

Although negotiation arguably is a critical life skill with which all people should be equipped to succeed, training and support for negotiation capacity largely has been vested in the legal and business professions. Many of the social barriers to care and health that result in a “stuck patient” or repeated avoidable readmissions could be addressed through thoughtful negotiation with a patient’s proposed long-term care facility, landlord, state agency worker, or school district. The legal profession has much to offer in this domain – not merely in serving as negotiators directly, but in helping to build negotiation skills in allied health professionals and patients themselves.

While negotiation involves dispute resolution directly between two or more parties, mediation positions a neutral party as mediator of such as disputes among parties. Again, the legal profession is host to a large supply of active mediators, but also can play a capacity-building role by sharing best practices on mediation techniques with lay and allied communities invested in this form of dispute resolution for people with health-impacting problems.

Litigation

When all else fails, litigators are equipped to challenge rights violations in court proceedings. This can happen on behalf of an individual or a group of similarly situated individuals (class actions). In some contexts (e.g., eviction and imminent homelessness), this strategy functions like a legal “emergency room”, since the client is facing severe, life-changing consequences in the near-term. In other contexts (e.g., some consumer class actions), litigation can serve a preventive function, leveraging correction of past harms to ensure no future harm comes to a population going forward.

Policy change

At their best, all of the above strategies can breed changes in public policy and law that are both just and health-promoting. As the socio-economic drivers of poor health are increasingly better documented and understood, the healthcare system may observe opportunities to influence policy domains that have long been considered unrelated to the practice of medicine and healthcare financing. Lawyers sited in healthcare-based general counsel and government relations teams are especially (though not exclusively) well-positioned to examine whether what looks like a “poverty law” issue is in fact a healthcare access and quality problem with damaging consequences not only for patients, but for a healthcare delivery system.

 “Reality-checking”

Some socio-economic problems are quickly amenable to the strategies noted above; many are not. When a care coordinator attempts to resolve a patient’s difficult barriers to care, s/he quickly will need to know whether or not current law presents a solution. If so, role-appropriate advocacy can begin. If not, this knowledge will allow value-based care teams to allocate their scarce resources wisely in the short-term – and then set long-term policy change agendas on the tougher issues.

4. Lawyering as a Health Intervention: Practical and Cultural Implications for the Profession

Social ecology is a new frontier for healthcare, and it may be useful to step back and look at the big picture. Initiatives designed to address SDH will be most impactful – for patients, for the healthcare system, and for communities – if their design is informed by the following considerations:

  • Re-orienting healthcare teams to patients’ total context must start during their education and training. Would we expect an astronaut to learn a core skill set only after she’d already landed on the moon? Schools of medicine, nursing, social work, and dentistry (among others) are key partners in this critical patient-centered, public health-oriented re-alignment. But as the healthcare team expands and diversifies, it’s also essential that community college graduates heading to myriad careers in healthcare (as physician assistants and more) start their jobs with a comprehensive understanding of what drives a person’s health.
  • Tackling SDH may require new workforce skills and role adaptation. Public policy has long demanded that clinicians provide medical certifications and support for patients in a range of high-stakes contexts connected to health inequities: disability benefit applications, utility shut-off protection letters, requests for health-related reasonable accommodation in housing, employment, and so forth. They’ve done so for years without much formal guidance, although these time-intensive responsibilities carry with them enormous practical and ethical and implications for both clinicians and their employers – and often “heat-or-eat” implications for the affected patients. The laws, regulations, and policies governing patients’ access to a range of health-promoting benefits and programs change frequently. Historically, keeping up with such matters has not been the province, or priority, of healthcare-based offices of General Counsel. Perhaps we will see an expansion of the General Counsel domain when it becomes clear that healthcare delivery systems directly benefit from many patients’ seemingly external legal claims (to,for example, a housing unit free of asthma triggers to which s/he can be quickly and safely discharged from an emergency room or inpatient ward).Meanwhile, greater emphasis on SDH has put Social Work teams under increased pressure to simultaneously differentiate into complex care management and expand their role in routine care management of the usual patient population – generally with no additional financial resources. And the relationship between social work and the community health workforce remains murky – synergistic for sure, but potentially competitive. It will be critical to ensure that existing skill sets and experience are wisely leveraged alongside productive innovation of institutional organizational charts.
  • A successful population health strategy will demand social policy innovation alongside healthcare policy innovation. As patients’ medical and social complexities become more relevant to care delivery and healthcare financing, so do the public policies that drive these complexities. Integration of community health workers (and other allied team members) into specific health centers and hospital departments represents substantial progress, but focuses the intervention at the individual patient level. Perhaps as institutions’ interests continue to re-align with the interests of vulnerable patients, we may observe increased engagement among institutions’ Government Relations teams (often populated by attorneys) on matters that are known to be “root causes” of health inequities, such as the inadequate supply of affordable housing.

If the legal community is to play a different and productive role in the accountable, value-based, patient-centered healthcare landscape, it must:

  • Rigorously assess the socio-economic risks confronting low-resource healthcare consumers (often civil rights violations) that simultaneously harm healthcare providers and insurers. These issues extend well beyond access to insurance coverage.
  • Learn the healthcare system’s values, financing, vocabulary, and culture. We may use different words to describe our goals for patients/clients (“engagement” v. “self-efficacy” v. “empowerment”), but we often are talking about the same thing, and in fact pursuing the same goals.
  • Embrace the depth of our lawyer’s “toolbox” even if it means adapting our individual lawyering styles and larger practice structures. Healthcare is re-examining whether its practices are truly “patient-centered” – perhaps this process will produce reflections that enhance client-centeredness in the legal profession as well.

 

Samantha J. Morton is Executive Director of Medical-Legal Partnership | Boston (MLP | Boston), the founding site of the national MLP network. She is outgoing co-chair of the BBA Delivery of Legal Services Section and a member of the BBA Health Law Section. Ms. Morton is a national expert on how legal strategies can be deployed to address social determinants of health, and how the healthcare and legal communities can better align promote health equity. Before joining MLP | Boston in 2003, she was an Associate at Hale & Dorr LLP and a judicial clerk for the United States District Court for the District of Maine. Ms. Morton is a graduate of Cornell University and the University of Michigan School of Law. 

 Kirsten Meisinger is Regional Medical Director at Cambridge Health Alliance (CHA) as well as Special Projects Coordinator for CHA’s Department of Family Medicine. She has practiced medicine at Union Square Family Health Center in Somerville since 1999, serving as Medical Director since 2008. Dr. Meisinger is a graduate of Brown University and Case Western Reserve University School of Medicine, and she completed her Family Medicine residency at Greater Lawrence Family Health Center. She has clinical appointments at Harvard Medical School and Tufts University School of Medicine, and serves on MLP | Boston’s Advisory Board. 

Deborah Durant is a Staff Attorney at MLP | Boston and a member of the Practical Skills Committee of the BBA New Lawyers Section. A graduate of Tufts University and Suffolk University Law School, Ms. Durant complemented her law degree with master’s degrees in Urban and Environmental Policy and Planning & Child Development. Before joining MLP | Boston in 2013, she worked at Oracle Corporation.

——

[1]See Suzanne Delbanco & David Lansky, The Payment Reform Landscape: Accountable Care Organizations, HealthAffairs Blog (Aug.5, 2014, 1:12PM),  http://healthaffairs.org/blog/2014/08/05/the-payment-reform-landscape-accountable-care-organizations/.

[2] Mass. Gen. Laws ch. 224, § 60 (2012)

[3]See Patient Centered Medical Home Resource Center, Agency For Healthcare Research And Quality, http://pcmh.ahrq.gov/page/defining-pcmh (last visited August 13, 2014).

[4]See Michelle H. Soper & Brianna Ensslin, State Approaches to Integrating Physical and Behavioral Health

Services for Medicare-Medicaid Beneficiaries: Early Insights, Ctr. For Health Care Strategies, Inc. (2014), http://www.chcs.org/media/State_Approaches_to_Integrating_Physical_and_Behavioral_Health.pdf.

[5]See William H. Foege, Social Determinants of Health and Health Care Solutions, Pub. Health Reports (2010), http://www.publichealthreports.org/issueopen.cfm?articleID=2477;see also Social Determinants of Health, Ctr. for Disease Control And Prevention (last updated Mar. 21, 2014), http://www.cdc.gov/socialdeterminants/FAQ.html.

[6] For purposes of this article, we will refer to three arguably distinct concepts – health, wellness, and disease prevention – as “health.” The authors recognize that there is not full consensus about these delineations within the healthcare and public health communities.

[7]See Leonard Kish & Cyndy Nayer, Addressing Social Determinants of Health as Key to Health, Health Care, iHealthBeat (May 27, 2014),http://www.ihealthbeat.org/perspectives/2014/addressing-social-determinants-of-health-key-to-improving-health-health-care; see also Mollie Bloudoff-Indelicato, Poor Quality of Life May Affect Teens’ Diabetes Management, Reuters (June 10, 2014, 12:13 PM),  http://mobile.reuters.com/article/idUSKBN0EL1PQ20140610?irpc=932 .

[8] Malcolm Gladwell, Million Dollar Murray, Gladwell.com (Feb. 6, 2006), http://gladwell.com/million-dollar-murray/ (via http://gladwell.com/category/the-new-yorker-archive/).

[9]Atul Gawande, The Hot Spotters,The New Yorker (Jan. 24, 2011), http://www.newyorker.com/magazine/2011/01/24/the-hot-spotters?currentPage=all.

[10]See Complex Care Innovation Lab, Ctr. For Health Care Strategies, Inc. (last visited Aug. 14, 2014), http://www.chcs.org/project/complex-care-innovation-lab/.

[11]See Stephen Somers & Tricia McGinnis, Introducing Totally Accountable Organizations (TACO), Ctr. For Health Care Strategies, Inc. (last visited Aug. 14, 2014), http://www.chcs.org/resource/introducing-totally-accountable-care-organizations/; see Stephen Somers & Tricia McGinnis, Broadening the ACA Story: A Totally Accountable Care Organization, HealthAffairs Blog (Jan. 23, 2014, 11:59 AM), http://healthaffairs.org/blog/2014/01/23/broadening-the-aca-story-a-totally-accountable-care-organization/.

[12]See Agency For Healthcare Research And Quality, 2013 National Healthcare Disparities Report, Ahrq Publ’n No. 14-0006(May 2014), http://www.ahrq.gov/research/findings/nhqrdr/nhdr13/2013nhdr.pdf.

[13]See Fenton, Health Care’s Blind Side: The Overlooked Connection Between Social Needs and Good Health, Robert Wood Johnson Found.(Dec. 2011), http://www.rwjf.org/content/dam/farm/reports/surveys_and_polls/2011/rwjf71795.

[14]Patient Protection and Affordable Care Act, 42 U.S.C. §§ 18001 (2010).

[15]See Accountable Care Organizations (ACO), Ctr. For Medicare & Medicaid Serv. (last visited Aug. 15, 2014), http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/ACO/index.html?redirect=/ACO.  

[16]Jenny Gold, FAQ on ACOs: Accountable Care Organizations Explained, Kaiser Health News (Apr. 16, 2014), http://www.kaiserhealthnews.org/stories/2011/january/13/aco-accountable-care-organization-faq.aspx.

[17]Id.

[18]See U.S. Dep’t of Health and Human Serv., Determinants of Health, HealthyPeople 2020 (last updated Aug. 15, 2014), http://www.healthypeople.gov/2020/about/DOHAbout.aspx#socialfactors.

[19]See Jennifer DeCubellis and Leon Evans, Investing In The Social Safety Net: Health Care’s Next Frontier, HealthAffairs Blog (July 7, 2014, 9: 35AM),  http://healthaffairs.org/blog/2014/07/07/investing-in-the-social-safety-net-health-cares-next-frontier/ ; see also Jennifer L. Huget, ‘Super-Utilizers’ Place Huge Burden On Health-Care System, The Washington Post (Oct. 22, 2012, 7:00 AM), http://www.washingtonpost.com/blogs/the-checkup/post/super-utilizers-place-huge-burden-on-health-care-system/2012/10/19/c62781ba-1a32-11e2-ad4a-e5a958b60a1e_blog.html.

[20]See Kristin Jones, Untreated Mental Health Issues Key in Helping System’s “Frequent Flyers,” Rocky Mountain PBS I-News (May 9, 2014), http://inewsnetwork.org/2014/05/09/untreated-mental-health-issues-key-in-helping-systems-frequent-flyers/.

[21]See Deborah Brown & Tricia McGinnis, Considerations for Integrating Behavioral Health Sciences Within Medicaid Accountable Care Organizations, Ctr. For Health Care Strategies, Inc. (July 2014), http://www.chcs.org/media/ACO-LC-BH-Integration-Paper-0709141.pdf.

[22]See Sabrina Tavernise, Mortality Drop Seen to Follow ’06 Health Law, The New York Times (May 5, 2014), http://www.nytimes.com/2014/05/06/health/death-rate-fell-in-massachusetts-after-health-care-overhaul.html?_r=0.

[23]See David Schultz, Study: Mass. Global Payment Approach Lowers Costs, Improves Care, Capsules: The Kaiser Health News Blog (July 11, 2012, 4:52 PM), http://capsules.kaiserhealthnews.org/index.php/2012/07/study-mass-global-payment-approach-lowers-costs-improves-care/.

[24] Mass. Gen. Laws ch. 224, § 15 (2012).

[25]Id. § 261.

[26]See Adele Kirk, Research Insights: Prevention and Health Reform, Academy Health (July 2009), http://www.academyhealth.org/files/publications/AH_RI_Health%20Care%20reform.pdf.

[27]See State Innovation Models Initiative: Model Testing Awards Round One, Ctr. For Medicare & Medicaid Serv. (last visited Aug. 15, 2014), http://innovation.cms.gov/initiatives/state-innovations-model-testing/.

[28]SeePatient Centered Medical Home Resource Center, Agency For Healthcare Research And Quality, http://pcmh.ahrq.gov/page/defining-pcmh (last visited August 13, 2014).

[29]See id.

 [30]See id.

 [31]See Steven Reinberg, Costs A Barrier to Asthma Care For Some Kids, Health Day News (May 22, 2014), http://consumer.healthday.com/respiratory-and-allergy-information-2/asthma-news-47/costs-a-barrier-to-asthma-care-for-some-kids-688005.html.

[32] Malcolm Gladwell, Million Dollar Murray, Gladwell.com (Feb. 6, 2006), http://gladwell.com/million-dollar-murray/ (via http://gladwell.com/category/the-new-yorker-archive/).

[33]See Cindy Mann, CMCS Informational Bulletin: Targeting Medicaid Super-Utilizers to Decrease Costs and Improve Quality, Ctr. For Medicaid & CHIP Serv. 9, 21, 27-28, 35 (July 24, 2013), http://medicaid.gov/Federal-Policy-Guidance/Downloads/CIB-07-24-2013.pdf.

[34]See $22 Million UnitedHealth Group Investment Helps Fund Three New Affordable-Housing Communities in New Mexico, UnitedHealth Group (June 25, 2013),http://www.unitedhealthgroup.com/Newsroom/Articles/Feed/UnitedHealth%20Group/2013/0625AffordableHousingNewMexico.aspx; Matt Chaban, Housing For The Homeless – Built With Medicaid Money, NY Daily News (Oct. 8, 2013, 4:45 PM), http://www.nydailynews.com/new-york/bronx/housing-homeless-medicaid-money-article-1.1479796.

[35]Social Determinants of Health, HealthyPeople.Gov (last updated Aug. 14, 2014), http://www.healthypeople.gov/2020/topicsobjectives2020/overview.aspx?topicid=39.

[36]See U.S. Dep’t of Health and Human Serv., Screening for Domestic Violence in HealthCare Settings, ASPE Policy Brief (Aug. 2013), http://aspe.hhs.gov/hsp/13/dv/pb_screeningDomestic.pdf.

[37]Chen Kenyon et al., Revisiting the Social History for Child Health, Pediatrics (Sept. 2007), http://pediatrics.aappublications.org/content/120/3/e734.full (via http://medical-legalpartnership.org/wp-content/uploads/2014/03/Revisiting-the-Social-History-for-Child-Health.pdf).    

[38]See Leonard Kish & Cyndy Nayer, Addressing Social Determinants of Health as Key to Health, Health Care, iHealthBeat (May 27, 2014),http://www.ihealthbeat.org/perspectives/2014/addressing-social-determinants-of-health-key-to-improving-health-health-care; Inst. of Med., Capturing Social and Behavioral Domains in Electronic Health Records: Phase I, The Nat’L Acad. Press (2014), http://www.nap.edu/openbook.php?record_id=18709; Social Screening Tools, Health Begins (last visited Aug. 18, 2014), http://healthbegins.ning.com/page/social-screening-tools; Erin R. Hager, Development and Validity of a 2-Item Screen to Identify Families at Risk for Food Insecurity, Pediatrics (Apr. 10, 2010), http://www.childrenshealthwatch.org/wp-content/uploads/EH_Pediatrics_2010.pdf 

[39]See Randall R. Bovbjerg et al. The Expansion, Evolution and Effectiveness of Community Health Workers, The Urban Inst. (Dec. 2013),   http://www.urban.org/UploadedPDF/413072-Evolution-Expansion-and-Effectiveness-of-Community-Health-Workers.pdf.

[41]See Where Innovation Is Happening, Ctr. for Medicare & Medicaid Serv. (last visited Aug. 18, 2014), http://innovation.cms.gov/initiatives/map/index.html#state=MA&model=community-based-care-transitions-program; See also Health Care Innovation Awards, Ctr. for Medicare & Medicaid Serv. (last visited Aug. 18, 2014), http://innovation.cms.gov/initiatives/Health-Care-Innovation-Awards/Massachusetts.html;J. Nell Brownstein et al., Addressing Chronic Disease Through Community Health Workers: A Policy And Systems-Level Approach, Nat’l Ctr. for Chronic Disease Prevention and Health Promotion 6-7 (last visited Aug. 18, 2014), http://www.cdc.gov/dhdsp/docs/chw_brief.pdf.

[42]See J. Nell Brownstein et al., Addressing Chronic Disease Through Community Health Workers: A Policy And Systems-Level Approach, Nat’l Ctr. for Chronic Disease Prevention and Health Promotion 6-7 (last visited Aug. 18, 2014), http://www.cdc.gov/dhdsp/docs/chw_brief.pdf.

[43]See Patricia A. Cuff, Establishing Transdisciplinary Professionalism for Improving Health Outcomes: Workshop Summary, Inst. Of Med. (Oct. 7, 2013), http://books.nap.edu/openbook.php?record_id=18398; Chen Kenyon et al., Revisiting the Social History for Child Health, Pediatrics (Sept. 2007), http://pediatrics.aappublications.org/content/120/3/e734.full (via http://medical-legalpartnership.org/wp-content/uploads/2014/03/Revisiting-the-Social-History-for-Child-Health.pdf).

 [44]See Thomas D. Barton, Preventive Law And Problem Solving: Lawyering for the Future (2009).

[45]See Shriver Ctr., Community Lawyering, Sargent Shriver Nat’l Ctr. On Poverty Law (last visited Aug. 18, 2014),http://povertylaw.org/training/courses/community-lawyering.

Policymaker Profile: Sarah Iselin

By: Margaret Schmid, Esq.

 Sarah Iselin is Senior Vice President of Strategy, Policy, and Community Partnerships and Chief Strategy Officer at Blue Cross Blue Shield of Massachusetts (“BCBSMA”).  She is responsible for BCBSMA’s strategic services, including internal business consulting and strategic and business planning. She also leads the company’s corporate citizenship team.  Earlier this year, Ms. Iselin took a leave of absence from BCBSMA to serve as the temporary Special Assistant to the Governor for Project Delivery to oversee fixes to the Massachusetts Health Connector.  Prior to serving in her current role at BCBSMA, Sarah was President of the Blue Cross Blue Shield of Massachusetts Foundation. 

 Ms. Iselin is the former Commissioner of the Massachusetts Division of Health Care Finance and Policy where she managed and monitored critical phases of the implementation of the state’s landmark 2006 health care reform law, including the formation of the Health Safety Net, and the Fair Share, Free Rider, and Health Insurance Responsibility Disclosure requirements for employers. She also co-chaired the Special Commission on the Health Care Payment System which recently recommended a major overhaul in the way physicians and hospitals are paid. Prior to her appointment as Commissioner, Iselin worked on the development of statewide quality and safety initiatives for Blue Cross Blue Shield of Massachusetts. From 2001 to 2005, Iselin was the director of policy and research for the BCBSMA Foundation, where she played a key role in developing the BCBSMA Foundation’s Roadmap to Coverage initiative, which provided the framework for the states 2006 health reform law. Ms. Iselin earned a master’s degree in health policy and management from the Harvard School of Public Health and her undergraduate degree from the School of the Art Institute of Chicago.

1. You graduated from the School of the Art Institute of Chicago. Subsequently, you received your master’s degree from the Harvard School of Public Health.  How did you find your way from the Art Institute into the world of healthcare?  

I grew up on Capitol Hill in Washington, D.C., and both of my parents worked in and around the Hill for their entire careers.  I am the product of an intensely political family; public service and social justice are issues that I have always been immersed in.  Growing up and attending public school in D.C. in the 70s, I saw firsthand how poverty and drug problems can affect a community, and I became aware of how much inequality there is in the world.  These experiences were formative and engendered a concern about community health as a social justice issue.

When I went to college, I initially pursued the interest that I had in art and art history, but I wasn’t too far down that path when I realized that I had a public services-oriented, social justice-oriented disposition, and I wanted to pursue this part of my interest professionally.  After college, I moved to Boston, and upon the recommendation of a family friend, began working for the Visiting Nurses Association.  I worked there for three years, and I found the work to be very interesting on an operational level as well as on a philosophical level. Healthcare is something that affects all people; at the beginning of life and at the end of life, we all have contact with the healthcare system.   It’s also an area wherein you’re dealing with matters of inequity, inequality, quality, and access, and it hearkened back to my childhood concerns related to community health.  Not surprisingly, my work at the VNA resonated with me, and I’ve been working in healthcare ever since.  Fortunately, though, I haven’t had to give up my love of art entirely.  I’m able to satisfy my creative urges in other ways; I have three young kids who require a lot of creativity.

2. You worked at BCBSMA early on in your career and then transitioned to the public sector as Gov. Patrick’s Commissioner of the state’s Division of Health Care Finance and Policy.  Later, you went back to BCBSMA and most recently accepted a temporary appointment as Governor Patrick’s Special Assistant to help solve the problems plaguing the Massachusetts Health Connector.  Generally speaking, what are your favorite aspects of working in the public and private sectors?

I’ve really enjoyed having a career where I’ve been able to move back and forth between the two sectors.  I think my private sector experience has made me more effective as a public sector leader, and I think my public sector leadership experience has translated well in the private sector. I hope to have a career where I continue to have opportunities to work on both sides of the aisle.

More specifically, I think that the opportunities to innovate, to experiment, to understand the concerns, constraints, and needs of businesses makes the private sector an exciting place to work, and I am able to bring an appreciation those issues into government, which, in turn, I believe has helped to make me a much more effective public leader.

In terms of the benefits of working in the public sector, if you’re someone who is passionate about change, there’s nowhere else that you have the opportunity to drive broad-scale change the way you do when you’re working for the government. For me, there is nothing more gratifying than having the opportunity to work in conjunction with the legislature to improve the healthcare experience of the residents of the Commonwealth.

3. If everyone involved with the Health Connector from Day One was sitting around a table today, what do you think people might say that they would have done differently?

Looking back, I think that the state – not just the government but everyone in Massachusetts –underestimated the impact and challenge of implementing the Affordable Care Act because we had already successfully implemented our own health reform law and because our health reform law was the model for the national health reform law.  However, as we got further down the path of ACA implementation and as the federal government began to issue regulations, it became clear how many things were actually different.  And as is often the case, the devil is in the details.

In regard to the website project specifically, the common sentiment seems to be, ‘Well, you had a functioning website before, why is it so hard to adapt it to the ACA’s requirements?’  Folks don’t appreciate that it’s really an ‘apples to oranges’ comparison.  Massachusetts’s original website was a tool that allowed people to compare health plans.  The ACA drastically increased the website’s functionality requirements.  Under the ACA, states’ insurance exchanges need to present various insurance options to consumers as well as have the capability to process online insurance applications, make immediate eligibility determinations, and ideally allow consumers to begin paying premiums.  At the end of the day, the ambitions of our state, and the governance structure that we put in place to manage that project, and the vendor we picked, were not the right ingredients to be successful in launching that new website on schedule.

Though these are my own words, if we could go back and do everything over again, I think folks would agree that the project should have only ever had a single point of accountability; the tripartite governance structure involving the Commonwealth Connector Authority, MassHealth, and the University of Massachusetts Medical School was too cumbersome.  Hindsight being 20/20, we also should have scaled back our ambitions for the first year roll-out given the tight timeframe, and we should have selected a different vendor partner to develop the software.

4. The revamped Health Connector is scheduled to be ready by Nov. 15 for consumers to enroll in new health plans for 2015 and Massachusetts is pursuing a “dual track” strategy.  Can you outline some of the benefits and risks associated with each track?

When the Governor asked me to assist him in developing a plan for moving forward, I put together an Executive Steering Committee (consisting of ITD CIO Bill Oates, ANF Secretary Glen Shor, HHS Secretary John Polanowicz, Health Connector Executive Director Jean Yang, and MassHealth Director Kristin Thorn) to help in that process.  Working in concert with Optum, we took a look at all of the options that we had including assessing whether we could stay the course with our original software vendor, CGI.  We concluded that CGI could not get the software fixed and finished in time, and we recommended to the Governor that we part ways with CGI.  Having made that threshold decision, we then assessed the following four options: (1) start over from scratch; (2) hire a new vendor to fix CGI’s partially-built software; (3) adopt the federal exchange; and (4) implement at a commercial off-the-shelf solution.  We eliminated the first two options fairly quickly as being too risky.  But the two remaining options also have risks, and to hedge our bets, we decided to pursue both.

Migrating to the Federally Facilitated Marketplace is challenging because Massachusetts offers a greater level of subsidy for residents with incomes below 300% of the federal poverty line, and the federal exchange isn’t designed to support that additional level of subsidy.  And as we’ve all read in the paper, the federal site is not without problems.  In addition, the State’s intention has always been to maintain its own, state-based exchange.  We worried that if we adopted the federal exchange in Massachusetts, the state-based exchange would never become a reality. In sum, I’d characterize this option as having policy risks.

In terms of utilizing an off-the-shelf software solution, hCentive has received great reviews; it’s powering the exchanges in Colorado, Kentucky, and in New York.  The company also has small business exchange functionality, and hCentive has just been selected by the federal government to power their small business exchange.  Notwithstanding the foregoing, there’s technology risk associated with pursuing this path because while this software has a good track record in other states, our timeline is quite condensed.

5. Do you have a sense of the progress being made by hCentive on the state’s off-the-shelf software solution?

The Connector Board meets once a month and is closely monitoring the progress of both tracks.  At the most recent board meeting, there was a live demonstration of the hCentive product.  Based on hCentive’s most recent demonstration, I think folks are cautiously optimistic. Even though this track is not without risk, hCentive has been meeting all of its near-term milestones.  One thing that is notable about the hCentive track is that the software will be able to accommodate the higher level of premium subsidy for Massachusetts residents, and it appears as if this feature will be ready for the Fall 2014 roll-out.  We still have a long way to go, but I’m feeling cautious optimism on the hCentive front.

6. What advice do you have for individuals who do experience a disruption in health insurance coverage?

Massachusetts is committed to protect coverage for residents of the state, and has established a transitional coverage program to ensure that residents’ health care coverage is not affected by any glitches arising from the implementation of the exchange.  By way of background, when things didn’t go as expected last fall, Massachusetts – with support from the federal government – created Transitional Coverage, which is a temporary Medicaid fee for service coverage program.  Currently, around 200,000 people are enrolled in the Transitional Coverage program, and the federal government has extended the authorization to keep that program going through the end of the year.  This means that people will be protected for the coming months, which is great news.  However, because so many people will be moving from the Transitional Coverage program into permanent, ACA-compliant coverage programs, it seems imprudent to say that there won’t be any glitches.  And even though it’s not looking like we’re going to have anywhere near the problems we had last fall, it’s still going to be a change, and in the beginning, it might be difficult for consumers to navigate.

8. What are some current challenges facing Massachusetts payors?

We’re living in a time of transition in the healthcare industry and there’s an incredible amount of pressure and demand to make healthcare more affordable. This is challenging everyone in the healthcare industry from health plans, to physician groups, to hospitals to figure out how to achieve a vision where quality, affordable healthcare is available to all people.  Blue Cross Blue Shield Massachusetts is developing creative and innovative ways of managing these changes, particularly around the way we pay for healthcare services rendered to our members.  But it’s a time of change, that’s for certain.

9. Do you think there should be more transparency related to the Attorney General’s settlement with Partners HealthCare? 

That’s a hard question to answer.  There has been a lot more transparency in this state than there might be in others.  We have the Health Policy Commission, and the fact that there’s a venue in which this matter was discussed and reviewed is a great thing.  But consolidation is one of the big changes that I was alluding to.  The drive for more accountability related to healthcare spending is certainly a contributing factor to healthcare systems looking to integrate, collaborate, and in some cases, merge.  Providers are under pressure to gain efficiencies, to coordinate care better, and to save dollars, and I think there’s a belief in some parts of the healthcare world that large systems are best equipped to realize these goals.  But I think, too, that we don’t know the answer to that question yet. Nevertheless, I believe that the consolidation in Massachusetts’s healthcare marketplace foreshadows what we’re going to see happen in the rest of the country in the upcoming years.

10. Do you have any advice for any young lawyers who are interested in pursuing a path in healthcare policy? 

I would encourage people who are interested in policy to pursue public service.  I think that the experience and perspective one gains by working in the public sector is invaluable. And we need smart, committed folks to consider making public service part, if not all, of their career path.  There’s really nothing like it, both the opportunities that it creates and the learning that you gain from working inside the system.

 

Maggie Schmid, Esq. is an associate at Donoghue, Barrett, & Singal, P.C..  Prior to working for Donoghue, Barrett, & Singal, Ms. Schmid interned at Massachusetts Executive Office of Health and Human Services.  She also worked for the U.S. Department of Health and Human Services, Office of the General Counsel, Public Health Division during her third year of law school.  Ms. Schmid received her law degree from The Catholic University, Columbus School of Law in Washington, D.C., where she was a Note and Comment Editor on the Journal of Contemporary Health Law and Policy.  She received her undergraduate degree from Kenyon College.

Health Law Case Brief: Walden Behavioral Care v. K.I.

By: Stephanie Regan, Esq.

In Walden Behavioral Care v. K.I., the District Court, Appellate Division[1], held that the patient-psychotherapist privilege does not apply to civil commitment hearings.

Walden Behavioral Care (“Walden”), a private mental health facility, petitioned the District Court to commit and retain K.I., a patient at its facility.  During the hearing on the petition, K.I. moved to exclude any evidence based on his own statements to his treating physician, arguing that they constituted patient-psychotherapist communications, which are privileged pursuant to MGL c.233 §20B.  The District Court denied the motion, and allowed testimony from the attending psychiatrist, who testified that K.I. had repeatedly indicated that voices were telling him to kill himself and that he intended to do so.  The District Court subsequently committed K.I. to Walden based upon its finding that failure to retain K.I. at Walden would create a likelihood of serious harm and that there was no less restrictive alternative.

K.I. appealed to the District Court, Appellate Division, contending that the District Court erred in allowing privileged patient-psychotherapist communications to be used as the basis for his commitment because he had not been warned that his statements could be used in this manner and he had not otherwise waived the privilege.  As summarized below, the Appellate Division ultimately concluded that an individual may not assert the patient-psychotherapist privilege in order to prevent the introduction of patient-psychotherapist communications in a civil commitment proceeding pursuant to M.G.L. c.123, §§7,8.  K.I.’s commitment was consequently affirmed.

The Appellate Division began by examining both statutes.  The civil commitment statute, M.G.L. c.123 §§7,8 allows a facility to petition the District Court for commitment and retention of a patient for up to six (6) months if it determines that a “failure to hospitalize would create a likelihood of serious harm by reason of mental illness.”[2]  After hearing on the petition, the District Court may issue an order of commitment only upon a finding, beyond a reasonable doubt, that (1) the patient is mentally ill and (2) discharge of the patient would create a likelihood of serious harm.[3] Commitment is not authorized unless there is a showing of “imminent danger of harm.”[4]

That patient-psychotherapist privilege, M.G.L. c.233 §20B, is an evidentiary privilege which allows a patient to refuse to disclose, or prevent a witness from disclosing, “any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient’s mental or emotional condition.”  There are several exceptions to this privilege.  Unless an exception applies, a patient may prevent disclosure of the communication in a court proceeding or in any proceeding preliminary to such court proceeding.

The Appellate Division addressed two exceptions to the patient-psychotherapist privilege that were potentially relevant to this case.  First, exception (b) provides that the privilege does not apply where, during a court-ordered examination, the patient is informed that his or her communications to a psychotherapist will not be privileged.[5]  This “warning” regarding the lack of privilege is also referred to as a “Lamb warning.”[6]

The Appellate Division relied on a plain reading of exception (b) in determining that it does not apply to civil commitment hearings, and thus no Lamb warning is required as a precondition to the admissibility of patient-psychotherapist communications at such proceedings.  Exception (b) expressly applies to communications made “in the course of a psychiatric examination ordered by the court.”[7]  This excludes communications that, as in this case, take place in the context of hospital treatment.  Further, the Appellate Division noted that the policy considerations behind the exception are not implicated in civil commitment hearings, as the exception is intended, “to permit a court to utilize expert psychiatric evidence by ordering an examination,”[8] which takes place “in anticipation of a future proceeding” in which the defendant’s mental state will be at issue.[9]  The purpose of communications presented during a civil commitment hearing, however, are to provide treatment to the patient and they are not in anticipation of any future proceeding.

The Appellate Division next looked at exception (a), which has been referred to as the “dangerous patient exception.”[10] This exception permits the disclosure of patient-psychotherapist communications for the purpose of hospitalization (or placing the patient under arrest or under the supervision of law enforcement) in cases where a psychotherapist encounters a patient who poses an imminent danger of harm.[11]  Where a communication is disclosed for the purpose of hospitalization, the privilege will apply after the patient is in such hospital.[12]

Upon reading exception (a) together with the civil commitment statute, the Appellate Division ultimately concluded that, given the purpose of exception (a), the patient-psychotherapist privilege does not apply to civil commitment proceedings under M.G.L. c.123 §§7, 8.  The Appellate Division observed that the disclosure of communications contemplated by exception (a) is consistent with the purpose of a civil commitment proceeding, which is to commit or retain a patient at a time when the patient presents an imminent danger of harm.  While acknowledging the significant consequences of civil commitment proceedings and the importance of procedural safeguards, the Appellate Division stressed its refusal to interpret the laws in a manner that produces an absurd result.  It noted that often, patient-psychotherapist communications are the only relevant, and indeed most critical, evidence available at a civil commitment hearing.  If the privilege could be asserted to preclude such evidence, it would result in the release of a potentially dangerous person, without appropriate treatment, into the community.  Such a statutory construction would defeat the purpose of the civil commitment proceeding.

Finally, this case includes a dissenting opinion that contends that Lamb warnings should not be limited to court ordered examinations.  Rather, the dissent contends that when a psychotherapist examination is initiated by the petitioner, for the purpose of determining whether to proceed to civil commitment, the patient should be administered Lamb warnings and there should be no disclosure of any patient-psychotherapist communications absent the patient’s knowing and voluntary of waiver of the privilege.

 

Stephanie Regan is a health care attorney in the Boston area.  She spent eight years as an Associate in the Health Care Department of Donoghue, Barrett & Singal, P.C., where she provided advice to health care clients on a wide range of health and business law matters.  She received her law degree with a Concentration in Health and Biomedical Law from Suffolk University Law School, where she was a founding staff member of the Journal of Health and Biomedical Law.  During law school, Ms. Regan interned in the Health Care Fraud Division of the United States Attorney’s Office.  Prior to law school, Ms. Regan worked as a Legislative Aide in the Massachusetts House of Representatives.  She received her undergraduate degree from Boston College.

———-

[1] Please note this case is currently pending in the Appeals Court.

[2] M.G.L. c.123 §7(a)

[3] M.G.L. c.123 §8(a)

[4] Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 105, 725 N.E.2d 552 (2000) quoting Lessard v. Schmidt, 349 F. Supp. 1078, 1093 (E.D. Wis. 1972)

[5] M.G.L. c.233 §20B(b)

[6] See Commonwealth v. Mercado, 452 Mass. 662, 665 n. 5, 896 N.E.2d 1262 (2008), citing Commonwealth v. Lamb, 365 Mass. 265, 311 N.E.2d 47 (1974) (referencing right to Lamb warning in case of court-ordered examination)

[7] M.G.L. c.233 §20B(b)

[8] Commonwealth v. Lamb 364 Mass. 265, 269, 311 N.E.2d 47 (1974)

[9] Commonwealth v. Seabrooks, 433 Mass. 439, 450-451, 743 N.E.2d 831 (2001)

[10] See Commonwealth v. Brandwein, 435 Mass. 623, 628, 760 N.E.2d 724 (2002)

[11] M.G.L. c.233 §20B(a)

[12] Id.

Health Law Case Brief: Johnson v. Kindred Healthcare, Inc. and Licata v. GGNSC Malden Dexter LLC

By: Sean Baird, Esq.

The Supreme Judicial Court of Massachusetts (the “SJC”) recently addressed a nursing home’s ability to compel a patient or the patient’s estate to arbitrate all disputes.[1] In both Johnson v. Kindred Healthcare, Inc. and Licata v. GGNSC Malden Dexter LLC, the SJC held that, based on the plain language, history, and context of the Massachusetts health care proxy statute, Mass. Gen. Laws. Ch. 201D, §§ 1-17, a health care agent may not enter into an arbitration agreement on behalf of the principal.[2]

 Johnson v. Kindred Healthcare, Inc.

On May 24, 2007, Dalton Johnson (“Dalton”) executed a health care proxy pursuant to Mass. Gen. Laws. Ch. 201D, §§ 1-17.[3] The health care proxy authorized Dalton’s wife, Barbara Johnson (“Barbara”), to act as Dalton’s health care agent.[4] Subsequently, on August 6, 2008, in her capacity as Dalton’s health care agent, Barbara signed an agreement with defendants (Kindred Healthcare, Inc., & others[5]) to submit any disputes for mediation or arbitration.[6]

In July of 2009, Dalton died after suffering burns he received while a resident of defendant’s nursing home.[7] Upon his death, administrators of Dalton’s estate filed a complaint in the Superior Court for negligence, seeking damages under the wrongful death statute as a result of Dalton’s care while he resided at defendant’s nursing home.[8] The Superior Court proceedings were stayed pending the conclusion of mediation and arbitration as required by the arbitration agreement.[9] At that time, plaintiffs sought leave to pursue an interlocutory appeal and the SJC transferred the case on its own motion.[10]

The SJC began by analyzing the plain language of the Massachusetts health care proxy statute.[11] The Court noted that the statute defines “[h]ealth care” as “any treatment, service or procedure to diagnose or treat the physical or mental condition of a patient.”[12] The SJC also noted that “health care decisions” are defined as “a decision which is made in accordance with the requirements of this chapter, is consistent with any limitations in the health care proxy, and is consistent with responsible medical practice.”[13] Accordingly the Court held that, “taken together, these definitions appear on their face to limit ‘health care decisions’ to those that directly involve the provision of responsible medical services procedures, or treatment of the principal’s physical or mental condition.”[14] The Court concluded that the statute does not include language to suggest that the health care agent has authority over any affairs beyond medical treatment decisions.[15]

In support of this conclusion, the Court pointed to the statute’s history and context to demonstrate that the Legislature intended to differentiate a health care proxy’s decision making power from that of a durable power of attorney, guardian, or conservator.[16] The SJC noted that a durable power of attorney, conservator, and guardian have statutorily enumerated powers beyond health care decisions, namely that these roles permit an individual to make decisions regarding the principal’s business, estate, finances, and legal relationships.[17]

Thus, based on the plain language and legislative history and context of Mass. Gen. Laws. Ch. 201D, §§ 1-17, the SJC held that a health care agent’s decision-making power is limited and does not include the ability to enter into binding arbitration and mediation agreements.[18]

 

Licata v. GGNSC Malden Dexter LLC

On August 19, 2008, Rita Licata (“Rita”) executed a health care proxy designating her son, Salvatore Licata, Jr. (“Salvatore”), as her health care agent.[19] On August 22, 2008, Rita was transferred from a medical center to a nursing facility operated by the defendant, GGNSC Malden Dexter LLC (“GGNSC”).[20] As part of her transfer to GGNSC’s nursing facility, Salvatore signed a number of documents on Rita’s behalf, including an arbitration agreement.[21]

One year later, on August 10, 2009, Rita died from personal injuries she received while a resident at GGNSC’s nursing facility.[22] Rita’s estate filed a complaint in Superior Court against GGNSC.[23] GGNSC moved to dismiss the complaint and to compel arbitration based on the agreement Salvatore signed as Rita’s health care agent.[24] The Superior Court concluded that Salvatore lacked authority to execute the arbitration agreement on Rita’s behalf and therefore denied GGNSC’s motion to dismiss.[25] GGNSC requested an interlocutory appeal and the SJC transferred the case on its own motion.[26]

On appeal, GGNSC argued that Salvatore was authorized to sign the arbitration agreement.[27] The Court disagreed and based on its reasoning in Johnson, held that a health care agent’s decision to enter into an arbitration agreement is not a health care decision as defined by Mass. Gen. Laws. Ch. 201D, §§ 1-17 and therefore found that the agreement was unenforceable.[28]

GGNSC also contended that Salvatore was authorized to sign the arbitration agreement as a “responsible party” under Mass. Gen. Laws ch. 201 D, §16.[29] The SJC indicated that it has permitted “responsible parties” to act on behalf of a patient in a medical emergency in certain instances but that there is no authority to suggest that a “responsible party” may bind an incompetent patient to an arbitration agreement.[30] Moreover, in light of the reasoning in Johnson, the SJC held that “[i]t would be unreasonable to recognize a wider scope of authority for a responsible party, not appointed by the principal, than exists for a health care agent, designated by the principal.”[31]

Additionally, GGNSC argued that Rita bestowed Salvatore with apparent authority to sign the arbitration agreement or later ratified the arbitration agreement.[32] The Court disagreed and pointed to facts developed by the Superior Court which indicate that there were no words or conduct by Rita to support such claims.[33] Likewise, the SJC noted that GGNSC did not provide any evidence that Rita even learned of the arbitration agreement. [34]

GGNSC also argued that the arbitration agreement bound Rita as a third-party beneficiary.[35] The Court, nevertheless, pointed to adopted language from the Restatement which provides that there can be no third-party beneficiary in the absence of a contract.[36] The SJC held that there was no contract because no one with signing authority signed the arbitration agreement.[37]

Finally, GGNSC contended that because Salvatore filed suit for breach of the admission agreement, he should be equitably stopped from denying the arbitration agreement.[38] Nonetheless, the Court concluded that Salvatore’s complaint sought enforcement of the contract to provide services, not the agreement to arbitrate.[39] For all of these reasons, the SJC affirmed the Superior Court’s finding and concluded that the arbitration agreement was unenforceable.[40]

In sum, it appears as though Massachusetts courts are unlikely to expand the authority of a health care agent to matters that are unrelated to health care decisions.[41]

 

Sean R. Baird is a member of Holland & Knight’s Healthcare and Life Sciences Team and of the Corporate Mergers and Acquisitions Group. He advises clients on a wide range of  healthcare regulatory matters, as well as on fraud, abuse and compliance matters, and on transactional matters.  During law school, Mr. Baird served as a legal intern for Judge O. Rogeriee Thompson, U.S. Court of Appeals for the First Circuit, and Judge James P. Donohue, U.S. District Court for Western Washington. Prior to law school, Mr. Baird worked as a public health professional at Harvard University, Johns Hopkins University, the United States Agency of International Development and various non-governmental organizations. He has extensive experience managing, designing, and evaluating large domestic and international public health programs.

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[1] See Johnson v. Kindred Healthcare, Inc., 2 N.E. 3d 849 (2014); Licata v. GGNSC Malden Dexter LLC., 2 N.E. 3d 840 (2014).

[2] See Johnson, 2 N.E. 3d at 851-59; Licata, 2 N.E. 3d at 842-49.

[3] See Johnson, 2 N.E. 3d at 851.

[4] See id.

[5] Kindred Nursing Centers East, LLC; Kindred Healthcare Operating, Inc.; Braintree Nursing, LLC d/b/a Braintree Manor Rehabilitation and Nursing Center (Braintree Nursing); Barbara Webster; and Robert E. Young.

[6] See Johnson, 2 N.E. 3d at 851.

[7] See id.

[8] See id.

[9] See id. at 851-852.

[10] See id.

[11] See id.

[12] See Mass. Gen. Laws. Ch. 201D, § 1.

[13] See id.

[14] See Johnson, 2 N.E. 3d at 853-54.

[15] See id.

[16] See id. at 854-56.

[17] See id.

[18] See id. at 851.

[19] See Licata, 2 N.E. 3d at 842-43.

[20] See id.

[21] See id.

[22] See id.

[23] See id.

[24] See id. at 843-44.

[25] See Licata, 2 N.E. 3d at 843-44.

[26] See id.

[27] See id. at 844-45.

[28] See id. at 844-45.

[29] See id. at 846.

[30] See id.

[31] See Licata, 2 N.E. 3d at 846.

[32] See id. at 846-48.

[33] See id.

[34] See Licata, 2 N.E. 3d at 846-48.

[35] See id. at 848.

[36] See id.

[37] See id.

[38] See id. at 848-49.

[39] See id.

[40] See Licata, 2 N.E. 3d at 842-49.

[41] See Johnson v. Kindred Healthcare, Inc., 2 N.E. 3d 849 (2014); Licata v. GGNSC Malden Dexter LLC., 2 N.E. 3d 840 (2014).

Health Law Case Brief: Bryant v. Jackson

By: Andrew Egan, Esq.

On September 17, 2013, the Massachusetts Superior Court ruled on a motion for summary judgment in the case of Bryant v. Jackson,[i] finding that the defendant hospital: (1) could not be held responsible for the intentional release of a patient’s HIV status by its employee under the common law theory of vicarious liability; but (2) the hospital could be strictly liable for such disclosure under Massachusetts’s HIV Privacy Act.[ii]

Plaintiff Daphne Bryant, who is HIV-positive, received care from co-defendant Brigham and Women’s Hospital (BWH), where co-defendant Shona Jackson worked in the Patient Access Services Department.[iii] Bryant and Jackson were acquaintances. Bryant alleged that Jackson had improperly disclosed Bryant’s HIV status to a third party, who was a mutual acquaintance. A complaint from Bryant to BWH prompted an internal investigation by BWH, which revealed that Jackson had improperly accessed Bryant’s medical records, leading BWH to terminate Jackson. The evidence presented also showed that Jackson had undergone training regarding the privacy and security of medical information.

In her lawsuit, Bryant claimed that Jackson was negligent in disseminating her HIV status, and that BWH was vicariously liable for Jackson’s negligence. Bryant also claimed that Jackson’s supervisor Christie Collins and BWH were negligent in the training and supervision of Jackson. Finally, Bryant alleged that BWH violated M.G.L. c. 93A, Massachusetts’ consumer protection law, by virtue of violating the HIV Privacy Act. This case regards movements for summary judgment by Defendants BWH and Collins on all claims against them.

As a preliminary underpinning to their motions for summary judgment, the Defendants claimed that, although Jackson improperly accessed Bryant’s information, Bryant could not support the claim that Jackson disseminated Bryant’s information, and that Bryant therefore suffered no harms. The court denied the Defendants’ motion on this basis, finding the issue of dissemination to be in dispute.

The court granted summary judgment to Collins and BWH on the issue of negligent training and supervision of Jackson, finding that there was no evidence to support these claims.

BWH also moved for summary judgment with regard to the claim of vicarious liability by asserting that, even if Jackson had disseminated Bryant’s information, Jackson’s actions could not be imputed to BWH. In analyzing this question, the court focused on the employer-employee relationship, and the question of whether Jackson was acting within the scope of her employment when committing the alleged harmful disclosure. Acting within the scope of employment means the work was “of the kind she is employed to perform, occur[s] substantially within the authorized time and space limits, and [is] motivated, at least in part, by a purpose to serve the employer.”[iv] The court found that, although Jackson’s access of Bryant’s information was within the scope of her employment, the alleged disclosure was “simply gossip” in no way motivated by a purpose to serve BWH, and was therefore not within the scope of Jackson’s employment. The court granted summary judgment to the BWH on the claim of vicarious liability for Jackson’s negligence.

Finally, BWH moved for summary judgment with regard to the violation of M.G.L. c. 93A under the HIV Privacy Act by asserting that it had not made the alleged disclosure, but rather its employee (Jackson) had done so, and such disclosure was outside the scope of her employment. The court examined the statutory language, legislative history, and public policy behind the HIV Privacy Act and found that there were no exceptions to liability, not even for inadvertent or good-faith disclosures.[v] The court found that, as a “facility” under the definition of the HIV Privacy Act, BWH would be strictly liable for any violation of the HIV Privacy Act by an employee, such as Jackson. The court therefore denied BWH’s motion for summary judgment for violating the HIV Privacy Act, stating that, if a jury finds that Jackson did disclose Bryant’s HIV status, BWH will be strictly liable for that disclosure under the HIV Privacy Act, regardless of whether Jackson was acting within the scope of her employment.

Andrew R. Egan is an assistant general counsel with the Massachusetts Health Connector. He is a 2013 graduate of Boston University School of Law, where he served as an articles editor for the American Journal of Law and Medicine. He is a member of the Boston Bar Association’s Health Law Section, as well as the American Health Lawyer’s Association. During law school, he interned for the Massachusetts Commission Against Discrimination, the Boston Municipal Court, and the Massachusetts Health Connector.

———–

[i] Bryant v. Jackson, 31 Mass. L. Rptr. No. 19, 425 (Nov. 4, 2013).

[ii] See M.G.L. c. 111 § 70F. The HIV Privacy Act prohibits the disclosure by a hospital of the results of an HIV test, or the identity of the subject of an HIV test, to anyone other than the subject of such tests without the subject’s informed written consent. A violation of the HIV Privacy Act is regarded as a per se violation of M.G.L. c. 93A § 2, which prohibits unfair or deceptive acts or practices, and which gives a private right of action for anyone injured by violation of that law. See Bryant at 428.

[iii] Specifically, Jackson worked as an access facilitator.  “The position of access facilitator requires an employee to access patient information in order to perform her job function[, which] includes admitting patient’s administratively, assigning them to a unit in the hospital and assisting with appropriate billing.” Bryant at 425.

[iv] Id., citing Lev v. Beverly Enterprises-Massachusetts, 457 Mass. 234 (2010).

[v] The court cited Commonwealth v. Ortiz, 2001 WL 34129741, in which the Massachusetts Supreme Judicial Court stated, “The absence of any [exceptions to the prohibition on disclosure of HIV test results] in § 70F strongly suggests that the Legislature did not intend there to be any exceptions.” Id. at 428.

 

IN THIS ISSUE: Fall/Winter 2013

Sontag, David  Jerry Tichner Bio photo  cosgrove

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

As we approach the one year anniversary of the Boston Marathon bombing, we reflect not only on the tragic scene that unfolded that day but also on the tremendous displays of community and the human spirit that followed thereafter.  Each person affected has their own story to tell; however, Jamie Katz, General Counsel and a Senior Vice President at Beth Israel Deaconess Medical Center, provides a unique perspective in his article on the Medical Center’s response to the bombings as well as the challenges it was confronted with when both suspects, Tamarlan and Dzohkar Tsarnaev, were brought to the Medical Center for treatment.

We are also excited that Julie Myers from the Attorney General’s office was able to spend some time with Lois Johnson, General Counsel of the Health Policy Commission.  In her interview, Julie garnered insights from Lois about the mission of the HPC as well as ways in which the Commonwealth continues to be on the cutting edge of health care policy in the United States.

In addition, this edition of the Reporter includes an assessment of the public health issues underlying the tanning salon industry and the dangers associated with an apparent lack of enforcement related to the false and deceptive advertisements issued by certain members of the industry.  Robert Ciccia suggests that a litigation strategy similar to that employed in the cigarette industry for its “light” cigarettes may be a viable solution to the issue. 

This edition includes summaries on four recent health law cases in Massachusetts addressing topics ranging from commitment under G.L. c. 123, § 7 to the awarding of treble damages under the Massachusetts Wage Act.

On a final note, we wanted to recognize the hard work of all of our authors and peer reviewers as well as the members of the Communication Committee who work to ensure that this publication remains the preeminent  snapshot of current developments in health law and policy in Massachusetts!

Opinion Pieces:

BIDMC and the Boston Marathon Bombings
By Jamie Katz

Litigating Tanning Salons in Massachusetts: A Policy Proposal
By Robert A. Ciccia

Policymaker Profile: Lois Johnson
By Julie Meyers

Health Law Case Briefs: 

In the Matter of C.B.
By Sarah E. Lowdon

HipSaver, Inc. v. Kiel
By Maggie Schmid

N.E. Physical Therapy Plus, Inc. v. Liberty Mutual Insurance Company
By Tucker W. Wade

Alla Feygina v. Hallmark Health System, Inc., et al.
By Kelly McGee

Litigating Tanning Salons in Massachusetts: A Policy Proposal

By: Robert A. Ciccia[1]

Introduction

In February of 2012 Rep. Henry Waxman (D-CA), a ranking member of the United States House of Representatives Committee on Energy and Commerce, released a report concerning false and misleading information provided by tanning salons across the nation.[2] The report detailed the risks associated with indoor tanning, as well as the strategies employed by the tanning industry to improve tanning rates. However, the report fell short of recommending any policy to curb the use of indoor tanning. This article analyzes tanning in Massachusetts, and recommends litigation as a policy initiative to counter false and misleading information disseminated by tanning salons.

To address the issue, the first section briefly describes the health risks and public health impacts associated with indoor tanning. This is followed by an examination of the veracity of several local tanning salons’ health claims. Next, the article details current federal and state laws applicable to the tanning industry including the tanning industry’s history of false and misleading advertisements, along with the Federal Trade Commission’s (“FTC”) past decisions. In addition, Massachusetts’s Consumer Protection Act is introduced as a potential theory of liability. The last section of the article focuses on possible consumer protection actions and addresses potential issues that may arise.

The Problem

Indoor tanning is a serious health issue. The World Health Organization recently classified tanning beds as “carcinogenic to humans,” the organization’s highest risk category.[3] Tanning is linked to several types of skin cancer: basal cell carcinoma, squamous cell carcinoma, and melanoma.[4] Despite these known risks, it is estimated that 30 million Americans use indoor tanning services every year; many of these users are young women between the ages of 18-29.[5] As a result of increased tanning rates, skin cancer is now the most common cancer in the United States.[6] Moreover, while the incidence of many other cancers is falling, the incidence of melanoma is rising faster than the seven most common cancers.[7]

Complicating this issue further are social beliefs that a tan is a sign of health, beauty, and success.[8] Additionally, individuals who tan do not perceive tanning risks and are pressured to tan by friends or family members who engage in the same behavior.[9] Although several public education campaigns were launched to curb tanning rates, several studies indicate that educational efforts alone are insufficient to decrease such rates.[10] Several states have passed legislation limiting the tanning services available to minors, but many tanning facilities fail to comply with these regulations because there is little state enforcement.[11] Thus, this article recommends litigation to raise awareness of this public health issue, reprimand tanning salons for deceptive business practices, and spur societal change. However, before delving into a solution, it is critical to understand the marketing techniques tanning salons employ in Massachusetts.

The Strategic Marketing of Tanning Salons in Boston

Tanning salons often employ misleading advertisements to promote indoor tanning. Despite the well-publicized association between indoor tanning and skin cancer, many tanning salons advertise that their services are safe and healthy. Several tanning salons across Boston perpetuate these false claims.

For example, Tanorama, a tanning salon located on Newbury Street, an upscale shopping district of Boston, stated on their website that indoor tanning is “safer than the sun.”[12] In the predominately white working class neighborhood of South Boston, Sobella Salon stated on their website that “[t]anning beds help the body produce more vitamin D that helps keep your bones, teeth and joints very healthy . . . some studies conducted show that a person’s mood significantly improves when they use a tanning bed.”[13] Last year, the Tan Man Sun Spa, which is also located in South Boston, posted on its Facebook page that “new studies show that the large amount of Vitamin D your sessions produce actually burns fat cells, promotes weight loss & increases muscle strength.”[14] Many salons commonly cite the benefits of Vitamin D production, despite the fact that physicians recommend oral supplements rather than increased exposure to UV radiation.[15] Advertisements often state that tanning can even be used as treatment for seasonal depression. The Tan Man Sun Spa published an update on its Facebook webpage that claimed indoor tanning produces “serotonin” and “endorphins” which help combat seasonal depression.[16] However, these health claims are without a verifiable scientific basis. Only the FDA can classify and approve devices for health purposes, presently UV tanning lamps are limited to the use of tanning the skin.[17]

There are also health claims that are less explicit. Campus Tan, which has several franchises near college and university populations, takes such a route. On its webpage, Campus Tan advocates that users avoid use of SPF lotion during indoor tanning because their booths allow for controlled exposure.[18] However, many health professionals state that protective sun lotion should be used prior to receiving large amounts of UV exposure –indoor tanning would fall under such a category.[19] Campus Tan also stated that it used “Browning Lamps” instead of what it referred to as “Burning Lamps,” and while it is believed that such a statement is meant to convey a competitive advantage over other salons, there is an implicit claim that its lamps are healthier because they do not cause burns.[20] Physicians also agree that any manner of indoor tanning, unless prescribed for medical necessity, is not healthy.[21]

The Smart Tan franchise has three locations across the Boston area, and the franchise is one of the more visible salons in Boston. Its business slogan is “Faster, Safer, and Less Costly,” which conveys that it is less dangerous than its competitors. Smart Tan is most notable for a TV advertisement that aired on both MTV and E! Entertainment; channels which tend to cater to a young female demographic. The TV advertisement claimed that several medical studies advocated for increased sun exposure, and by extension, more indoor tanning.[22] On its website, Smart Tan also lists several “proven benefits” to indoor tanning and links to other pro-tanning websites.[23]

Many, if not all of these advertisements, use images of slim young women to help perpetuate the notion that tanning is desirable, healthy, and beautiful.[24] Images of women in bathing suits along with bright radiant colors used in the websites’ design are commonly used in these kinds of advertisements.[25] These images, along with the false and misleading messages they convey, are harmful to the public’s overall perception of tanning. The totality of these advertisements compounds the harmful effects of tanning by promoting its use through ecological and social factors.

There are several key regulations and legal remedies available to protect consumer rights against false and misleading advertisements, including the Federal Trade Commission Act (“FTC Act”).  In Massachusetts, the state’s consumer protection act also can be employed when businesses engage in unfair or deceptive practices.

The Role of the Federal Trade Commission

The FTC Act established the Federal Trade Commission in 1914. Since then, the FTC has been responsible for protecting “both business and the public from anticompetitive behavior and unfair and deceptive acts and practices.”[26] Typically if a business is charged with “unfair and deceptive” practices, the FTC will investigate to determine if a violation of the commission’s rules occurred. However, only the FTC can bring a claim under the FTC Act.

Over the past two decades, the FTC has taken action several times to curb the deceptive claims and practices of the tanning industry. In August 1997, the FTC settled charges with California SunCare. The charges arose from the company’s assertion that, “moderate exposure to the ultraviolet radiation of the sun and in indoor tanning salons is not harmful.”[27] The FTC ordered California SunCare and its CEO to cease from making such health claims, and required the company “to have scientific substantiation for any claims about the health benefits of UV exposure.”[28] Despite the settlement by the FTC, tanning salons continued to disseminate false and misleading material.

In 2008, the Indoor Tanning Association, a prominent lobbying group that represents tanning facilities and suppliers, launched a nationwide campaign to depict indoor tanning as safe and healthy.[29] In January 2010, the Indoor Tanning Association settled with the FTC on charges of “making false health and safety claims” concerning tanning. The terms of the settlement required the Indoor Tanning Association to cease any further marketing campaigns premised on unsubstantiated medical claims.[30] In addition, the FTC required any future advertisements making health claims to contain disclosures on the risks of developing skin cancer. The FTC also published a consumer factsheet to warn consumer of potential risks.

Although these settlements were lauded as progress against the tanning industry, the FTC’s continued regulation of the tanning industry is relatively weak. In fact, many tanning salons continue to tout other benefits of UV rays on their website. Nonetheless, the FTC settlements are important litigation resources for consumer protection claims.

Massachusetts Consumer Protection Act

In 1967, the Massachusetts Consumer Protection Act (“Chapter 93A”) was enacted to declare unfair and deceptive acts of business unlawful.[31] The law is one of the broadest and most powerful consumer protection statutes in the country.[32] It created new consumer rights and procedures to enforce these rights.[33] The law encompasses any acts “in the conduct of any trade or business,” and includes: advertisements, offerings of sale, the sale, and distribution of services. The purpose of the law was to ensure that businesses properly disclosed information, and did not profit from unfair practices. Chapter 93A is often described as a “Little FTC Act” because it tracks the language of the FTC Act, however Chapter 93A permits consumers and businesses to pursue private remedies against violators —unlike the FTC Act, which only permits the FTC to bring claims.[34]

False advertisements are treated as deceptive acts under Chapter 93A.[35] The requirements for a deceptive act are not as stringent as other common law principles because courts have interpreted Chapter 93A to extend far beyond the scope of the common law principles of fraud and deceit.[36] For example, there is no requirement to prove the defendant’s intent under deception; proof that the plaintiff relied on the deceptive act is sufficient for a claim.[37] Additionally, Section 2 of Chapter 93A permits state courts to use the interpretations of the federal courts and the FTC to determine if a business practice is deceptive. This is beneficial for consumer advocates because recent case law in Massachusetts has confirmed that a violation of the FTC Act is a violation of Chapter 93A.[38]

Another benefit to consumer claims under Chapter 93A is that the law is receptive to class action lawsuits. Traditionally Rule 23 of the Massachusetts Rules of Civil Procedure (“Rule 23”) governs class action certification in Massachusetts. For class action consumer protection claims, however, Section 9(2) of Chapter 93A governs over the provisions of Rule 23.  As the case law in Massachusetts points out, Rule 23 has more rules and prerequisites than Chapter 93A, thus consumer protection claims are more likely to be certified in Massachusetts than a traditional class action claim in the state.[39]

Consumer Protection Case Law

While no tanning related consumer protection claim has taken place in Massachusetts, in 2008 the Third Circuit decided Nafar v. Hollywood Tanning Systems, Inc.[40] The case was heard on appeal after a district court judge certified a nationwide class of tanning customers. The lawsuit was primarily based on violation of the New Jersey Consumer Fraud Act, which is similar to Chapter 93A.[41] In Nafar, the plaintiffs alleged that Hollywood Tanning deceived and failed to warn consumers that exposure to UV rays would increase their risk of cancer.[42] After reviewing the district court’s decision, the Third Circuit vacated the class certification. The Third Circuit held that the district court erred because of several procedural issues: (1) the district court failed to conduct an adequate choice-of-law analysis; (2) failed to consider causation; and (3) did not determine if res judicata was applicable. However, there are several issues that would distinguish the Third Circuit’s ruling in Nafar to a potential case brought in Massachusetts.

First, Nafar is inapplicable in Massachusetts because the Third Circuit’s ruling is only persuasive in the region governed by the court. Massachusetts has its own case law concerning class action consumer fraud lawsuits. A more analogous case is Aspinall v. Philip Morris Companies, Inc., heard by the Supreme Judicial Court of Massachusetts in 2004.[43] The case focused on the “certification of a class of purchasers of “light” cigarettes.”[44] In their complaint the plaintiffs alleged, “that the marketing of Marlboro Lights as “light” cigarettes that deliver “lowered tar and nicotine” was deceptive under [Chapter 93A], entitling them to monetary damages.”[45] The primary issue in the case was whether the defendants caused actual harm to the plaintiffs. This was a complicated dilemma for the Court because each cigarette delivered different levels of nicotine and tar, depending on each smoker’s habits. This is a similar dilemma tanning plaintiffs would face because UV ray levels may differ across individuals. Nonetheless, the Court certified the class and determined that the purchase of a falsely advertised product constituted an “injury” under Chapter 93A.[46] Detractors warned that Aspinall would open the gates to consumer class action litigation due to the broad definition of injury, but the case did not have such a drastic effect in Massachusetts.[47] Instead the case is commonly cited in many consumer rights claims.

The Texas Attorney General’s Office brought lawsuits against Darque Tan in 2008[48] and Euro Tan in 2010[49] for violations of several state laws. In both cases the state sought an injunction against the vendors for their health based tanning advertisements.[50] The justification for the attorney general’s claim was the tanning salons’ dissemination of false and misleading advertisements to consumers. In the Euro Tan complaint, the state referenced the use of a website and colorful brochures to promote misleading health benefits of tanning. These health claims included the benefits of Vitamin D for those with autism, autoimmune illnesses, other cancers, and chronic pain.[51] Other health claims stated that tanning beds would lower blood pressure, decrease pre-menstrual syndrome symptoms, increase muscle strength and improve the immune system.[52] The suit was premised on violations of the Texas Health and Safety Code, which prohibits tanning salons from claiming health benefits, and the Texas Deceptive Trade Practices Act, which prohibits deceptive advertising —similar to Chapter 93A. Presently, the Euro Tan case is pending in court. However, after several years of litigation, the Darque Tan case was recently settled in March of 2013. In addition to paying monetary damages, the court entered an injunction to prevent Darque Tan from claiming any health benefits in future advertising campaigns.[53] Thus proving the potential efficacy, at least in a case brought by the state’s attorney general, of a consumer protection claim based on false and misleading tanning advertisements. However, there is no guarantee that the Massachusetts Attorney General Office will ever take up such a case.

The Case for Tanning Litigation in Massachusetts

In order to facilitate change in Massachusetts, litigation is recommended as a policy initiative. The purpose of such action is to limit consumer fraud based on the false and misleading health claims tanning salons continue to assert. Such action should be premised under the Massachusetts Consumer Protection Act, and ideally brought in state court. While individual plaintiffs can bring such a lawsuit, a class action lawsuit is recommended due to the influential nature of such cases. Although federal removal may arise under federal class action rules,[54] a state claim is possible if the class is confined to residents the state of Massachusetts. This would avoid the procedural issues such as class certification, diversity, amount in controversy, and choice of law, that arose in Nafar.

The next issue is to establish deceptive advertising. In this case, the advertisements at issue are those proclaiming the benefits of Vitamin D, the safety of indoor tanning, and dispelling associations with skin cancer. Although there is no definition of deceptive acts in Chapter 93A, prior FTC cases are used to define the term.[55] A class could rely upon the California SunCare or International Tanning Association FTC settlements to prove that such advertisements were deceptive because the health claims made by many Boston tanning salons are similar, if not identical, to those made by California SunCare and the International Tanning Association. Such deceptive advertisements would likely be violations of Chapter 93A. The fact that the FDA has not approved the use of tanning devices for any other purposes also may be used to prove deceptive advertisements.

Tanning salons may claim waivers and warning as a defense for these consumer protection claims. These waivers are now common at many tanning salons, and often attempt to eliminate consumer protection claims. However, tanning waivers or warnings are likely to be ineffective in Massachusetts for two reasons. In Feeney v. Dell, Inc., the Massachusetts Supreme Court invalidated a waiver located in the arbitration clause of a consumer contract.[56] The waiver attempted to eliminate a consumer’s right to bring a class action consumer protection claim. In its ruling, the court stated that such a waiver “is not enforceable because it is contrary to the fundamental public policy of the Commonwealth favoring consumer class actions” under Chapter 93A.[57] The Feeney ruling would not enforce consumer protection waivers in Massachusetts. Tanning salons may also claim they provided warnings to customers, on the health risks. However, even if a salon provides healthy warnings, a Massachusetts statute dictates that “[t]he liability of a tanning facility operator or the manufacturer of a tanning device shall not be affected by the giving of the warnings.”[58] The statute, in effect, eliminates health warnings as a defense. Thus, neither waivers nor warnings would serve as a proper defense for tanning salons in Massachusetts.

The last requirement of such a lawsuit is damages. This requires that the plaintiff show “that he or she has been ‘injured’ in the sense that there has been an invasion of a consumer’s legally protected interests.”[59] This requirement can be satisfied principally in two ways: (1) if the consumer developed cancer, or any other illness associated with tanning; or, (2) if a consumer paid for tanning services and sought to recover the price (e.g., misled due to false or fraudulent advertising).

One major difficulty in proving damages is causation. This is especially burdensome in damages for cancer because there are a variety of variables that may increase risk. For example, if the plaintiff were both an outdoor sunbather and indoor tanning salon user, the causation link would weaken between a particular tanning salon and the cancer claim.

Stronger arguments could be made for the price paid for tanning services if a consumer would not have sought such services “but for” the misleading advertisements. Even if the price of tanning services is the only remedy recovered, a plaintiff can recover reasonable attorney’s fees and treble damages if the violation was knowing and willful under Chapter 93A. While treble damages are difficult to prove, given the knowing and willful standard, recovery is feasible due to the tanning industry’s disregard of prior FTC rulings. If treble damages and attorney’s fee can be recovered, this would likely result in a substantial impact on tanning providers.

Conclusion

It is well documented that the incidence of skin cancer is rising in the United States, despite the fact that many other cancer rates are in decline. This is partly due to the misleading and false advertising tanning salons employ to improve their business earnings. These advertisements often trumpet false health benefits and the safety of their services, while attempting to dispel the proven association between indoor tanning and skin cancer. The FTC has ruled twice that such assertions are false, and has reprimanded the tanning industry for its deceptive acts. Nonetheless, such deceptive practices continue and are especially prevalent in Massachusetts.

In order to combat the misleading rhetoric, litigation is suggested as a possible public policy initiative. A similar campaign was undertaken against cigarette companies, and although the process was long and difficult, it ultimately helped to sway public opinion and public policy against tobacco use. Massachusetts is an ideal location for such action to take place. The state’s consumer protection act, Chapter 93A, is one of the broadest consumer protection statutes in the country. It also provides lenient procedures for class certification, the ideal lawsuit to effectuate change, and the state has relevant case law supporting large consumer protection lawsuits. Massachusetts’ law would also invalidate any waiver or warning that salons attempt to use as a defense. Most importantly, Chapter 93A contains damage provisions that would cause tremendous injury to the tanning industry if a suit were successful.

Massachusetts provides a unique venue for tanning litigation to occur, and if successful, it can effectuate tremendous change for consumers and greater public health for the state. Although a statewide ban on indoor tanning is the ideal solution, there is little evidence such an effort could easily be achieved. Litigation is a slow, expensive, and difficult process, but it remains a powerful tool that public health advocates should consider to ultimately address the tanning issue.

EXHIBITS

Exhibit 1: Sobella Salon Advertisement

 Tanning Litigation Exhibit 1 

Exhibit 2: The Tan Man Spa Facebook Update

Tanning Litigation Exhibit 2

Exhibit 3: The Tan Man Facebook Update

Tanning Litigation Exhibit 3

 

Robert A. Ciccia, Esq. is a graduate of Northeastern University School of Law (J.D.) and Tufts University School of Medicine (M.P.H). He is interested in public health litigation and healthcare delivery. While in law school Robert was a staff member of the Northeastern University Law Journal and interned at Millennium Pharmaceuticals, Public Health Advocacy Institute, the U.S. District Court in Boston with the Honorable George O’Toole, and the Miami-Dade State Attorney’s Office. 

 


[1] The author would like to thank Mark Gottlieb of the Public Health Advocacy Institute, and Marcia Boumil of the Tufts University School of Medicine for their input and continued support throughout the drafting of this article.

[2] False and Misleading Health Information Provided to Teens by the Indoor Tanning Industry: Investigative Report. 112th Cong. (2012) (U.S. House Energy and Commerce Committee).

[3] Fitiha El Ghissassi et al., on behalf of the WHO International Agency for Research on Cancer, Monograph Working Group, A Review of Human Carcinogens–Part D: Radiation, 10 The Lancet Oncology 751 (Aug. 2009), available at http://www.thelancet.com/journals/lancet/article/PIIS1470-2045(09)70213-X/fulltext.

[4]  Margaret R. Karagas et al., Use of Tanning Devices and Risk of Basal Cell and Squamous Cell Skin Cancers, 94 J. Nat’l Cancer Inst. 224 (2002).

[5] Kwon HT, Mayer JA, Walker KK, Yu H, Lewis EC, Belch GE. Promotion of frequent tanning sessions by indoor tanning facilities. 46 J Am Acad Dermatol 700 (2003).

[6] Rogers, HW, Weinstock, MA, Harris, AR, et al. Incidence estimate of nonmelanoma skin cancer in the United States, 146 (3)Arch Dermatol 283, 287 (2010).

[7] Ries LAG, Melbert D, Krapcho M, Stinchcomb DG, Howlader N, Horner MJ, et al. (eds). SEER cancer statistics review, 1945-2005. Bethesda, MD: National Cancer Institute.

[8] See Heckman, C. J., Manne, S. L., Kloss, J. D., Bass, S. B., Collins, B., & Lessin, S. R. Beliefs and intentions for skin protection and UV exposure in young adults. 35(6) American Journal of Health Behavior 699, 711 (2011).

[9] See Id.

[10] Mawn V.B., Fleischer Jr. A.B., A survey of attitudes, beliefs, and behavior regarding tanning bed use, sunbathing, and sunscreen use, 29 (6) Journal of the American Academy of Dermatology 959 (1993).

[11] Forster J.L., Lazovich D., Hickle A., Sorensen G., Demierre M., Compliance with restrictions on sale of indoor tanning sessions to youth in Minnesota and Massachusetts, 55 (6) Journal of the American Academy of Dermatology, 962 (2006).

[13] Exhibit 1: Sobella Salon Advertisement.

[14] Exhibit 2: The Tan Man Spa Facebook Update..

[15] See False and Misleading Health Information Provided to Teens by the Indoor Tanning Industry: Investigative Report. 112th Cong. (2012) (U.S. House Energy and Commerce Committee).

[16] Exhibit 3: The Tan Man Spa Facebook Update.

[17] 21 C.F.R. § 878.4635 (“An ultraviolet lamp for tanning is a device that is a lamp (including a fixture) intended to provide ultraviolet radiation to tan the skin.”).

[18] http://www.bostontan.com/faqs.html last accessed 3/18/14.

[19] Joel J. Hillhouse, Arthur W. Stair and Christine M. Adler, Predictors of sunbathing and sunscreen use in college undergraduates, 19(6) Journal of Behavioral Medicine 543-561 (2012).

[20] http://www.bostontan.com/faqs.html last accessed 3/18/14.

[21] Gary Mendese and Barbara A. Gilchrest, Selected Indoor Tanning Myths and Controversies, Shedding Light on Indoor Tanning 121-133 (2012).

[22] http://smarttansalons.com/ last accessed 3/18/14.

[25] Id.

[26] 1 Fed. Trade Comm’n. § 1:1 (2011).

[27] FTC Announcements of 1997, Federal Trade Commission. http://www.ftc.gov/opa/1997/02/petapp10.shtm.

[28] Id.

[29]Indoor Tanning Association Settles FTC Charges That It Deceived Consumers About Skin Cancer Risks From Tanning, Federal Trade Commission. http://www.ftc.gov/opa/2010/01/tanning.shtm.

[30] Id.

[31] August Horvath, John Villafranco, Stephen Calkins, Consumer Protection Law Developments 468 (2009).

[32] See Matthew S. Furman, How Chapter 93a Consumers Lost Their Day in Court: One Legislative Option to Level the Playing Field, 15 Suffolk J. Trial & App. Advoc. 107 (2010).

[33] August Horvath, John Villafranco, Stephen Calkins, Consumer Protection Law Developments 468 (2009).

[34] Justin J. Hakala, Follow-On State Actions Based on the FTC’s Enforcement of Section 5, 1, FN 3 (2008). available at: http://www.ftc.gov/os/comments/section5workshop/537633-00002.pdf.

[35] 52 Mass. Prac., Law of Chapter 93A § 4.6

[36] See August Horvath, John Villafranco, Stephen Calkins, Consumer Protection Law Developments 468, 469 FN 1019 (2009).

[37] Id.

[38] August Horvath, John Villafranco, Stephen Calkins, Consumer Protection Law Developments 289 (2011).

[39] 52 Mass. Prac., Law of Chapter 93A § 5.10.

[40] Nafar v. Hollywood Tanning Sys., Inc., 339 F. App’x 216 (3d Cir. 2009).

[41] Sean Wajert, Third Circuit Vacates Class Certification In Consumer Fraud Tanning Case, Mass Tort Defense. available at: http://www.masstortdefense.com/2009/08/articles/third-circuit-vacates-class-certification-in-consumer-fraud-tanning-case/.

[42] Nafar v. Hollywood Tanning Sys., Inc., 339 F. App’x 216, 224 (3d Cir. 2009).

[43] Aspinall v. Philip Morris Cos., 442 Mass. 381, 385 (2004).

[44] Donald J. Savery, Brandon L. Bigelow, Aspinall One Year Later: Making Sense of “Similar Injury” in Claims Under Chapter 93a, Section 9, Boston B.J., November/December 2005, at 10.

[45] State High Court Ruling Departs from Tort Principles in Consumer Protection Case, 2005 WL 310059 (4th Cir. Feb. 10, 2005).

[46] Donald J. Savery, Brandon L. Bigelow, Aspinall One Year Later: Making Sense of “Similar Injury” in Claims Under Chapter 93a, Section 9, Boston B.J., November/December 2005, at 10.

[47] Id.

[48] Attorney General Abbott Resolves Health Claims, Marketing Issues with Tanning Salon Operators, Attorney General of Texas, https://www.oag.state.tx.us/oagnews/release.php?id=4318.

[49] Plaintiff’s Original Petition and Application for Permanent Injunction, State of Texas v Ryan, https://www.oag.state.tx.us/newspubs/releases/2010/040510eurotan_pop.pdf.

[50] Id.

[51] Attorney General Abbott Charges Euro Tan of San Antonio With Violating Health and Safety Laws. Attorney General of Texas, https://www.oag.state.tx.us/oagnews/release.php?id=3332.

[52] Id.

[53] Id.

[54] Congress passed the Class Action Fairness Act of 2005, in an attempt to curtail the role of state courts in large class action cases by expanding federal court jurisdiction over certain types of class action cases. 28 U.S.C. §§1332(d), 1453, and 1711–1715. In essence, the law eases federal class requirements with regards to numerosity, diversity, and amount in controversy. William Rubenstein, Understanding the Class Action Fairness Act of 2005, UCLA Program on Class Actions. 2005 at 5. These changes thereby allow class action defendants to remove a case from state to federal court, a venue where judges may be less likely to certify nationwide classes than state court judges. Id. at 15.

[55] 52 Mass. Prac., Law of Chapter 93A § 4.5.

[56] Feeney v. Dell Inc., 454 Mass. 192 (2009).

[57] Feeney v. Dell Inc., 454 Mass. 192, 193 (2009).

[58] Mass. Gen. Laws Ann. ch. 111, § 212 (West).

[59] 52 Mass. Prac., Law of Chapter 93A § 4.18.