Policymaker Profile: Tom O’Brien

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By Anna Gurevich, Esq.

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

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

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

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

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

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

Can you elaborate more on what you find so fulfilling about being a government lawyer?

The decisions that are made, and the process by which decisions are made by the government, are unique. There are a lot of issues that the government grapples with while being cognizant of the authority and the limitations in place as we do our work. I think too often we can become complacent because we are Americans, and we are fortunate to live in this great country. But questions of rule of law and how the government functions are something I believe that government attorneys and public servants continually need to be very mindful of. It is our inheritance, and quite frankly, there are many times that folks ask, rightfully, “What is motivating this – is it the law, or is it politics?”  That is where I think folks like myself and others who have the calling to public service really get our passion for the enforcement of government law.

During your time at the Attorney General’s office, you made the transition to working in the Health Care Division. How did that transition come about, and how did you find that work in comparison to what you were doing before?

When I came to the Attorney General’s office, it was because I had that combination of government experience, a finance background (I have a bachelor’s degree in mathematics), and a master’s degree in Public Administration. I was well-suited to complex regulatory matters, and I started in the regulated industries division at the AGO. Much of my case load related to regulatory health care matters, and that continued through successive positions at the office. When Attorney General Martha Coakley came into office, it was just after passage of Chapter 58 in 2006. She and her leadership team, David Friedman and others, decided that it was important to have a division focused on health care matters. So two other attorneys and I started the Health Care Division. The three of us grew the division, and I know that it is still performing at a very high level after my departure.

Can you talk a little more about your work in the Health Care Division?

Assistant Attorneys General often have a fair amount of expertise with regard to how the government functions. We may not be the lawmakers, but we are the law enforcers, and we have an understanding of how laws affect the marketplace. With the Health Care Division, we brought together different aspects of that legal practice, and it was somewhat unique that such a spectrum of work existed within one division of the AGO. We did health policy work, and Lois Johnson, who is currently General Counsel at the Health Policy Commission (“HPC”), and who was on our team at the time, really helped with that. We also had specific authority to do marketplace examinations. We did 3 market examinations, and issued 3 market reports while I was there, garnering some notoriety. We also brought cases in the traditional law enforcement role. We were also significantly involved in health care education. We had a hotline that would receive between 300-500 calls every month, and handle and dispose of more than 1,000 written complaints every year with regard to health care providers and health payors.

How do you think your experiences thus far have helped you prepare for the role of General Counsel for DPH?

When you think of public service and the function of government, you think “public health, safety, and welfare,” and DPH is a lot of that.  The work that we do here runs an incredible gamut of what the Commonwealth is responsible for, and includes some of the most important aspects of what a government is responsible for. The current concern with Ebola is a good example. There are situations where public health and the needs of the populace need to be a counterweight to individual liberty; so there is significant responsibility. So what do I bring into the position? What I bring is a legal mind that was well-trained by my colleagues at the AGO, and a respect for how the government and government practice of law should function. That is a respect that I continually try to hone so that I can be an effective public attorney. As a division chief at the AGO, I also had the opportunity to manage extremely talented attorneys. So I came here with a certain breadth of experience both as a colleague but also as a manger of talented attorneys. Many of the attorneys here at DPH have been doing this practice for a number of years, and even with my healthcare experience at the AGO, the learning curve has been steep.

You mentioned Ebola, and even apart from that, DPH is frequently in the news. Is there anything that you are currently focused on that you would like to talk about?

It might sound nerdy, but I am trying to re-focus how we function as a legal team. To give you a sense of the scale of DPH, it is vast. DPH has a nearly $1 billion budget, over 3,000 employees, two parts of the General Laws (chs. 111, 112), more than 100 sets of regulations, and eight bureaus. We run four hospitals and the Bureau of Substance Abuse, handle vital statistics, coordinate with local boards of health in 351 communities, enforce the Sanitary Code, and run the boards of professional licensure for dentistry, pharmacy, and nursing among many other responsibilities. Every aspect of DPH is dictated by a body of law that the General Court or the public has decided is important for public health. From my perspective, it is about the law, and not so much about me trying to advocate for the cool area of the law. It really is about making sure that I am focused on compliance with the law, and that the legal approach is consistent.

You mentioned that part of DPH’s role is responding to the public’s determinations about what constitute public health issues. Currently, DPH is charged with licensing medical marijuana dispensaries, which is clearly a public mandate. What are your thoughts on the balance between public and government involvement in policy and implementation?

Obviously the people get to decide through ballot initiatives and get to make decisions, and they have. It is for the government to enforce and carry forth the decisions of the people and the General Court. That said, there are unique complicating factors with medical marijuana. It is a new industry in Massachusetts that also does not comply with federal law.  In some ways, it is better to go prudently because we have to be mindful of the precedent we set and thoughtful about how this is going to affect public health and safety. We are doing what the law mandates, but this is unique and uncharted terrain. It is not like hospital licensure, which is complex, but once you have done it several times, you can see where the issues are. With medical marijuana, we are not just trying to get to sixty, but to launch a new industry from a dead stop.

Looking back over your career to date, is there anything you are particularly proud of, or glad to have been involved in?

There is a lot that I am proud of. When I think of the word “proud” I think of family, and I think that part of being a public servant is to be mindful of that balance. I think that I have maintained that well over the years. I am proud of my family and how fortunate I am in that regard. When I think of public service, I also think of it in very personal terms. I think of the wonderful public servants I have had the opportunity to work with. As far as the substantive work that I have been involved in, I have been fortunate that in every phase of my career, even before I was an attorney, I found myself in unique opportunities. When I was with the Dukakis administration, I was just a kid, but I was part of a team that formed a new office called the Office of Purchased Services. We were tasked with evaluating how the Commonwealth purchased social services from state agencies, which was a unique and reform-minded opportunity. We looked through and loaded up a lot of information from cost reports, and eventually built a relational database of purchased services information. It was an interesting kick-off to that phase of my government career.

You seem to be involved in a lot of startup initiatives, essentially, within the government.

There is a certain amount of fortune involved in that, and I am blessed to have those opportunities but it is also a function of whether you are willing to move towards the best work and take advantage of those opportunities. After obtaining my law degree, there were other options, but the AGO seemed to be a great opportunity, and I tended towards it. Quite frankly, I moved towards that again, because I think that DPH and the health agencies are at a time of evolution. I am still the wide-eyed public servant thinking, “Isn’t it cool to be part of that type of reform?”

Can you describe some changes you think will be coming down the pipeline?

It is hard to predict what the changes will be. However, since the 1990s, government has changed how it looks at the provision of and payment for healthcare. That evolution is probably not going to stop, and as you move towards a more transparent marketplace, the focus of the government shifts from one of inspection to confirmation. You want to make sure that the information being provided in a transparent marketplace is accurate and comparable, but the question is what is the best use of the government’s focus and resources? Is it ensuring accuracy of that process, or is it individualized review? My own sense is that we should be thinking about how healthcare providers measure collective success. That will involve changes over time that hopefully DPH and HPC will help drive, together with the new administration that just came in. I suspect it will be asking for metrics with regard to improved review of performance, and improved review of how patient acuity is evaluated, that will hopefully be transformative in a transparent marketplace, and will necessitate transformation of how the government interacts with health care providers. But I am not the decision-maker, I am a lawyer.

Is there anything you would like to talk about that I have not directly asked you about?

I do think that it is in everyone’s interest that the laws of the Commonwealth are appropriately enforced by both law enforcement (by the AGO) as well as by the agencies. The members of the Bar are all responsible for making sure a rule of law drives our civic society and that the laws are enforced. In the desire to serve clients, we always have to return to that North Star of the rule of law, and the government of laws. Too often we think we have more discretion with how the law is enforced than how our government is supposed to function. In some ways, there needs to be a retrenchment in the rule of law. That is my perspective. You ask the General Counsel about his priority, and rule number one will be “comply with the law.” I think the Bar itself needs to be mindful that counsel should not be looking for decisions that may not comply with the law. I think we all have a responsibility as lawyers to uphold the laws of the Commonwealth. The last 8 words of the Declaration of Rights is “A government of laws, and not of men.” That is my little soapbox speech.

Is there any particular issue that you are thinking of when you talk about a retrenchment in the law and the regulations?

It is more a question of the tone of elections and how partisan politics seem to detract from the recognition of what government is about. I think there are places government should be involved in, and DPH is a prime example.  I think we are where we should be, I am not suggesting otherwise. But I think attorneys should always be focused on the rule of law.

What do you find most challenging about this role?

In this role, it is important that agency counsel be mindful that DPH is not a legal practice, but is a healthcare institution, and its many programs hold the expertise. Here, it is about how I can support the professional decisions of my client. I have been here seven months, and even in those seven months there has been a tremendous amount of activity. I will not ever understand all of it – I need to manage a large team of attorneys and they need to understand it. But it has been a complex process to come to understand the role, both in the function of legal counsel in a health care institution, as well as working with such a large and diverse group of attorneys. I still miss the Attorney General’s office because I think it was a fabulous job – and I think that anyone who leaves the Attorney General’s office always remembers it fondly. But I am here because of the challenge, because there are great opportunities for an attorney at DPH.

Your thoughts seem to echo the sentiments of General Counsels everywhere. 

I do think it is a question of thinking about where I can cite a specific law or regulation, and where is it just my professional (maybe more art than science) knowledge of how to appropriately manage risk. You do not want to avoid risk; you want to appropriately manage risk. As General Counsel, there is a certain amount of deference to me in this role. The person I replaced was General Counsel for over 25 years here, so they were big and well-established shoes to fill. So my shift over to the new role, and also to shift into that role where someone was so well established, was certainly a complicating factor. Not a bad factor, but I am the new guy.  It has so far been an educational process that has been fulfilling.

 

Anna Gurevich, Esq. is an attorney in the Office of the General Counsel at Beth Israel Deaconess Medical Center, where she focuses her practice on corporate matters. Ms. Gurevich received her law degree from Boston University School of Law, where she was a member of the American Journal of Law and Medicine. During law school, she interned with the Office of the General Counsel at Boston Medical Center and the Law Department of a New York City administrative agency. She received her undergraduate degree in Economics from New York University. 

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