Posts Categorized: In This Issue

IN THIS ISSUE: Winter 2015

cosgrove  Jerry Tichner Bio photo   Zick_Colin

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

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

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

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

Opinion Pieces:

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

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

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

Policymaker Profile: Tom O’Brien
By Anna Gurevich

Health Law Case Briefs: 

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

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

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

IN THIS ISSUE: Spring 2013

We are pleased to present the 2013 Spring issue of the Health Law Reporter. In this issue you will find a Policymaker Profile of John Polanowicz, the new Secretary of the Massachusetts Executive Office of Health and Human Services (EOHHS). You will also find three substantive articles addressing Congress’ efforts to repeal Section 3141 of the Affordable Care Act, which provides for the application of budget neutral adjustments to the Medicare hospital wage index on a national basis, permissible health information disclosures by Massachusetts health care providers and the U.S. Court of Appeals for the Second Circuit’s now famous Caronia decision. Finally, we there are 4 health law case briefs covering topics ranging from the validity in Massachusetts of causes of action based on the “negligent credentialing” of physicians, to disputes regarding non-competition clauses in physician contracts.

David Sontag, Jerry Tichner, Philip Rakhunov

Co-editors, Health Law Reporter

Sontag, David Jerry Tichner Bio photoPhil Rakhunov

Opinion Pieces:

The Bay State Boondoggle During a Time of Reform
By Amy Kaufman

“Should I Tell Someone?” Permissible Disclosures by Massachusetts Health Providers and the Need for Greater Statutory Clarification
By William M. Mandell

United States v. Caronia: “A Tale Full of Sound and Fury”
By Ara B. Gershengorn

Policymaker Profile: Secretary Polanowicz
By Emily Armstrong

Health Law Case Briefs: 

Conrad v. Abbott Laboratories, Inc.
By Jeffrey Hoffmann

Metroplex Pathology Associates v. Horn
By Patrick Kilgore

Louise Morrison v. Dr. Julian Harris Director, Office of Medicaid 
By Patrick C. Cento

Rabelo v. Nasif 
By Anna Gurevich

IN THIS ISSUE: Health Law Reporter Fall/Winter 2012

Sontag, DavidJerry Tichner Bio photoDavid Sontag and Jerry Tichner, Co-editors

In light of national and local focus on electronic health record-related and medical privacy issues, BBA Health Law Section Members and readers of the Health Law Reporter have increasingly expressed interest in articles relevant to the world of eHealth and electronic medical information.  Through their contributions to this issue, a number of our authors address these topics head on.  In particular, this issue features articles discussing the Massachusetts Health Information Exchange, recent privacy-related enforcement actions, and a policymaker profile of the Director of Massachusetts’ eHealth Institute.

Not to be overshadowed, this issue also includes insightful articles addressing the significant growth of the Medical-Legal Partnership model (which involves collaboration between health care and legal aid providers) and a recent CMS demonstration project addressing individuals dually eligible for Medicare and Medicaid coverage.  These articles, combined with four case briefs addressing recent decisions, further our efforts to keep our readers up-to-date as to current trends and issues in our industry.

We thank each of our authors for their significant efforts and contributions!

Opinion Pieces:

The Massachusetts Healthcare Information Exchange – An Inside Look at the Policy and Technology
By:  John D. Halamka MD, CIO Beth Israel Deaconess Medical Center; Manu Tandon, CIO EOHHS; Micky Tripathi, CEO, Massachusetts eHealth Collaborative; and Laurance Stuntz, CEO, Massachusetts eHealth Institute.

HIPAA Enforcement Trends: Growing Civil Enforcement
By: Cassandra H. Arriaza and Sarah W. Walsh (LibbyHoopes, P.C.)

From Practice to Theory: Medical-Legal Partnership Enters its Third Decade
By:  Samantha Morton, Executive Director, Medical-Legal Partnership | Boston 

The “Dual Eligibles” Demonstration: Massachusetts Becomes First in the Nation to Implement a New Health Care Model for Medicare-Medicaid Beneficiaries
By: Margaretta Homsey Kroeger, Esq.

Policymaker Profile:

Laurance Stuntz, Director of the Massachusetts eHealth Institute.
By:  David Sontag, Associate General Counsel, Beth Israel Deaconess Medical Center

Case Briefs:

Boston Medical Center Corporation & Another vs. Secretary of The Executive Office Of Health and Human Services (and a Consolidated Case ). 463 MASS. 447 (denying multiple hospitals’ claims alleging that EOHHS has failed to adequately reimburse for services rendered to MassHealth)
By: Andrew Rusczek (Verrill Dana)

Commonwealth vs. Dung van Tran (463 Mass 8) (discussing the application of the psychotherapist-patient privilege, and the standards for waiver of that privilege, in the context of a Murder trial)
By: Margaret Schmid (Donoghue, Barret & Singal)

Paula Tartarini vs. Department of Mental Retardation (82 Mass. App. Ct. 217) (discussing the mental capability standards for determining eligibility for DMR services).
By: Devin Cohen (McDermott Will & Emery)

Joseph A. Grocela, M.D., et. al. vs. The General Hospital Corporation dba Massachusetts General Hospital et al. (30 Mass. L. Rep. 176) (denying Plaintiff’s claims that the Hospital’s application of its intellectual property Policy resulted in unfair restraint on trade and violations of privacy.)
By: Sophie Wang (Choate, Hall & Stewart)

Fall/Winter 2012 Health Law Reporter Preview

In anticipation of the forthcoming 2012 Fall/Winter issue of the Health Law Reporter, we are pleased to present this sneak peek into the issue.  First, a Policymaker Profile of Laurance Stuntz, the Director of the Massachusetts eHealth Institute, the state entity responsible for helping providers and payers in the state connect to the Massachusetts Health Information Exchange (“Mass HIway”).  Second, a related article that provides an inside look at the policy and technology of the Mass HIway, co-written by four leaders directing its development and deployment. We know you will find both articles interesting and informative.  The full 2012 Fall/Winter issue will be published shortly, and will include articles about HIPAA enforcement trends, the CMS demonstration project in Massachusetts concerning dual-eligibles, and the development and growing trend of Medical Legal Partnerships.  It will also include four health law case briefs covering topics ranging from the application of the psychotherapist-patient privilege to whether application of a hospital’s intellectual property policy resulted in violations of privacy.  Be on the lookout for the full issue in the coming weeks, but for now, here is your sneak preview:


IN THIS ISSUE: Health Law Reporter Summer 2012

Summer 2012 Health Law Reporter

David Sontag and Julia Hesse, Co-editors

The 2011-2012 United States Supreme Court term was one of the most momentous in history in terms of its impact on the healthcare industry.  In addition to the Court’s famous (or infamous, depending in your point of view) decision on the constitutionality of the Patient Protection and Affordable Care Act (PPACA), the Court also weighed in with important decisions in the field of intellectual property, HIV privacy, the power of states to overturn the Federal Arbitration Act in the nursing home context, and the Court’s decision to remand the much-anticipated Douglas Medicaid funding case to a lower court, among others.   A brief summarizing each of these cases is included in this issue.

Further, we asked leaders throughout the Boston healthcare community to comment on the impact of the Supreme Court’s decisions this term.  We gave all of the authors an open mandate to weigh in on any aspect of the Supreme Court’s decisions, individually or collectively, that were meaningful to them.   It is a comment on the breadth and complexity of these cases that the authors provided us with such diversity in their thoughts and opinions on the issues presented.  We thank them for their contributions to the Health Law Reporter, and hope that you will enjoy reading their perspectives as much as we did.

Opinion Pieces

Massachusetts and the ACA:  Cause and Effect
By: Eric J. Beyer, Tufts Medical Center

What’s Empathy Got to Do with It: Medicaid Expansion and Empathic Space

By: James Corbett, M.Div., J.D., Steward Healthcare

F.A.A. et al v. Cooper and the Coming Conflict between Privacy and Health Care
By: Denise McWilliams, Esq. and Richard Juang, Esq., AIDS Action Committee

Affordable Care Act will Restructure Health Care Market & Improve Access and Quality of Care
By: James Roosevelt Jr., Tufts Health Plan

Expanding Health Care Access to the Poor, ‘A Simple Case’?  Roberts: Not So Much
By: Matt Selig, Health Law Advocates

Affordable Care Act Continues to Create a Healthier America
By: Eva Marie Stahl, PhD, MPA, and Anna Dunbar-Hester, JD, MPP, Community Catalyst

Health Law Case Briefs

Coleman v. Court of Appeals of Maryland 
By: Margaretta Kroeger
Whether a state employer has sovereign immunity against a FMLA claim.

Douglas v. Independent Living Centers of Southern California, Inc.  
By: Tom Barker and Joel Goloskie
Whether a Medicaid provider or beneficiary has a right to sue a state Medicaid agency if that state enacts a law or regulation that is contrary to the “quality and access” provision of the federal Medicaid Act.

Federal Aviation Administration v. Cooper
By: Sarah Kitchell
Whether a plaintiff can recover only proven pecuniary damages, or other special/consequential damages, for a violation of the Privacy Act of 1974 related to disclosure of HIV status.

Marmet Health Care Center v. Clayton Brown, Clarksburg Nursing Home v. Marchio
By: Phillip Rakhunov
Whether state supreme court’s determination that enforcement of an arbitration clause is against public policy is preempted by the Federal Arbitration Act.  Specifically, whether the FAA preempts West Virginia Supreme Court’s determination that an arbitration provision in a contract for nursing home services is unenforceable in the context of a personal injury claim, where the claim post-dates the agreement.

Mayo Collaborative Services v. Prometheus Laboratories, Inc.
By: Kristyn Bunce DeFilipp
Whether a test that determines how a drug is metabolized is patentable, or instead is a “law of nature” that cannot be patented.

National Federation of Independent Business v. Sebelius
By:  James P. Dowden, Douglas H. Hallward-Driemeier, and Brendon O. Carrington
In a landmark ruling this summer, the Supreme Court upheld key provisions of the Patient Protection and Affordable Care Act (ACA), while at the same time stressing the limits of federal regulatory authority.

IN THIS ISSUE: Health Law Reporter Spring 2012

We are pleased to present to you the Spring 2012 Edition of the Health Law Section’s Health Law Reporter. Our Health Law Report­er provides BBA members with cutting-edge and unique perspectives on the fast-changing field of health law.

For the past several years, Massachusetts has played a leading role in national health reform, with our models for mandated indi­vidual insurance coverage, health insurance exchanges and other concepts winning ac­ceptance and adoption at the national level. This edition of the Health Law Reporter ad­dresses several of these important aspects of health reform.

We are pleased and honored to begin this is­sue with a contribution from Governor Deval Patrick. This is followed by discussion of the extension of health insurance to legal immi­grants in Massachusetts, and a discussion of some of the unique impacts of national health reform on Massachusetts. We also profile one of the key individuals involved in implement­ing health reform in our state, Aron Boros, the Commissioner of the Massachusetts Division of Health Care Finance and Policy.

The following articles can be found within this issue:

We also have a contribution discussing the pending lawsuits in the U.S. Supreme Court regarding the federal Affordable Care Act. This is just a preview of what is to come, as we will address the outcome of those Su­preme Court lawsuits in our next edition of the Health Law Reporter, so stay tuned! One of the best ways to keep abreast of these is­sues is through the BBA Health Law Section. We invite the involvement of anyone who wishes to join our section, and welcome the addition of your time, talents and ideas. The Health Law Section has several committees to choose from (CLE, Communications, Mem­bership, Legislative Update, Social Action); or you can volunteer as a participant at one of our CLE programs or Brown Bag lunches. Your ideas for new programs, events or new approaches to making our Section better are welcome.

– Colin S. Zick & Leslie Joseph, Health Law Section Co-Chairs