Posts Categorized: Policymaker Profile

Policymaker Profile: Representative Jeffrey Sánchez

By: Elta Mariani

Representative Jeffrey Sánchez has served as the Massachusetts State Representative for the 15th Suffolk District since 2003. In February 2015, he was appointed the House Chairman of the Joint Committee on Health Care Financing. Prior to this role, he served as the House Chairman of the Joint Committee on Public Health.

Representative Sánchez’s overall legislative agenda is driven in large part by the issues faced in his district– access and retention in education, public infrastructure development, workforce development, public health, and affordable housing. His healthcare work is focused on evidence-based health policy reform, particularly for underserved communities. He has worked to pass comprehensive reforms on compounding pharmacy practice and school nutrition programs, as well as expanded public health data sharing, enhanced practice for nurse midwives, and was instrumental in several key provisions of Chapter 224, the 2012 Massachusetts health care cost-containment law.

Before running for the House of Representatives, Sánchez worked in the Boston Mayor’s Office from 1995 to 2001. Prior to this work, Sánchez worked in San Diego as a financial management advisor and investment banker. He earned his Bachelor of Arts Degree in Legal Education from the University of Massachusetts, Boston, a Masters of Public Administration from the John F. Kennedy School of Government at Harvard University and is a current instructor at the Center for Public Health Leadership at the Harvard University TH Chan School of Public Health.

  1. What drew you to politics?

My mother was a community activist, and her area of focus was housing. We moved to Boston when I was a small child and lived in a housing project down the street from Harvard and Children’s Hospital. My mother was troubled by the Boston Housing Authority- its bureaucratic nature, how it treated people, and its failure to help many people find opportunities. She organized people, planned community meetings, was the head of a housing task force, and even sued and won against the Housing Authority (Perez v. BHA). Boston was a different city then. It was in decline. Now, the community where I grew up is thriving. My mother made some friends but her drive often challenged people, which I did not like when I was young. It wasn’t until later that I appreciated her activism and embraced public service myself.

  1. You have an MPA from Harvard. How has that helped you in your current role?

I attended the program after 15 years of government and finance work had left me feeling tired and defeated, and it became vocational training for me. The Kennedy School intellectualized things I had been working on. It helped me refine fundamental knowledge that I already had. Also, it put me in contact with the folks who are leading authorities. I initially wanted to work for a mutual fund company, but I managed to meet with Mayor Thomas Menino, and 20 years later here I am.

  1. How do you balance the agendas of various interest groups? Attorneys at firms have a duty of loyalty to their clients, and in-house attorneys to their companies, but as a legislator, don’t you have a duty to the entire public?

I listen to people. I ask enough probing questions until I get at what people really want. Then, I weave their ideas together and try to hopefully build something that people at opposite ends can appreciate and own together as opposed to holding on tightly to what they think is the solution. I have been a stock broker and an investment banker- I am done with selling. Now I am dealing with the business of people, and it is all about bringing people together for the goal of the public good. One of the biggest issues is poverty. Boston is cleaner, prettier, and more modern today, but it is still a challenging city for a lot of people.

My most valuable class from the Harvard Kennedy School was taught by Brian Mandell. It was a sort of “negotiations bootcamp” that helped me compartmentalize the challenges involving state and local finance, infrastructure investment, math and public policy, and accountability. We would work on things and then go over in class the pieces that would help make the best value for people.

  1. Tell me about the Joint Committee on Health Care Financing.

I was appointed to the committee in late February, and I had previously served on the Committee of Public Health for 6 years. In this prior experience I learned about how the government tries to address health in a group setting, and the mechanics of this setting (aka, how the delivery system operates). I worked on initiatives such as regulating compounding pharmacy and drugs and rewriting the determination of need statute to include market impact (region and Commonwealth as a whole) in Chapter 224. I worked with finance on the public payer side, MassHealth, and members of various communities. Some major issues were primary care, workforce issues, and insurance card use. I learned how to look at the healthcare system within the overall market economy, and ask what are things that impact it and how can we remedy certain issues.

Since healthcare reform began in 2006, these have continued to be big issues. 37% of the state budget is spent on healthcare in one way or another. Medicaid is $15 billion and growing.  This matters because the economy health is linked to healthcare. Healthcare comprises 11-12% of the economy. The committee’s goal is to improve care delivery in a manageable and sustainable way.

  1. About how many bills does the committee address on a regular basis? How does the process work?

We get bills referred to us from any of 5 other committees- Financial Services, Public Health, Mental Health and Substance Abuse, Children and Families, and Elder Affairs. We usually begin a legislative session with around 150 bills.

Bills also come from constituents. If you have a good idea, you could go to your representative and the bill will get filed. Then, a clerk looks at the bill and determines where it goes. I don’t get to choose bills. The clerk gives them to my committee. Then I work with my Senate counterpart and if the bill gets traction, we will rewrite it until it is approved.

  1. Do bills often reflect changes occurring in surrounding states? For example, this summer Connecticut enacted new hospital legislation that seems to dissuade mergers, and New Hampshire enacted a paid sick time law. Does the committee actively watch such developments?

I have a fantastic research staff that makes sure everything I need to know crosses my desk. My staff is comprised of people with many different backgrounds including public health, business, and law.

  1. What is your view on elections and short terms for state representatives? Do they tend to keep political goals in line with those of the general populace, or are they a distraction from making real changes, due to worries about continued constituent support?

Nah. Every 2 years your name is on the ballot. If people like you and you are doing the right thing, you will get re-elected. If not, you won’t. The world of politics changes a lot. The new generation looks at things completely differently. You used to be able to get strong messages out, but now with phones and laptops, people are no longer attending community meetings. But that doesn’t mean people are not informed. As a politician, you need to put yourself into the new way of communicating to reach people. You still must hold on to fundamental strategies too, because people still go outside, but it is a balance.

  1. What role do you see lawyers playing regarding these challenges? What role ought they to play?

Lawyers exercise the right to have representation in many forms. Also, the legal community is very well represented in public affairs. I can talk to the head of an institution or organization, but they will always have a legal team that they depend on. Yes, lawyers and politicians both get a hard time for sometimes aggravating problems, but who said representation was going to be easy? The world is more complicated now than ever before, and lawyers and politicians are needed.

Massachusetts is a very dynamic state when it comes to healthcare policy, delivery, finance, and writing the tomes. Members of the bar make the difference because they are actively improving how we do things.

  1. Does the Open Meeting Law apply to you and if so, does it inhibit or aid decision-making?

The Open Meeting Law is pretty complicated. I can meet with people. Talking to people and learning from them is not covered. It is when I am making decisions that it matters. We have a public hearing on each bill (though the meeting to learn about it can be off-camera), where we incorporate co-chair comments and ask if there will be a motion to move the bill forward. Then if we get a motion, we talk to other members in a public meeting executive session before voting.

  1. Tell me something interesting about you that people do not generally know (a “fun fact”).

I wanted to go to law school and actually applied to BU and Suffolk Law, but ultimately Harvard Kennedy School was the best option for me.  Also, I think it is funny when people ask what my plan is. My plan is going and talking to people about their plans. The people who are underserved and underprivileged need a voice.

  1. Is health care spelled as one word or two?

I usually spell it as one, but I think that it can be spelled either way. A piece of advice- always asks the question that you’re afraid to ask, because other people may be wondering the same thing.

Elta Mariani is a 3L student at Boston College Law. During law school, she has served as a president of the student-run Health Law Society, and worked at athenahealth, Tufts Medical Center, and the law firm of Donoghue, Barrett & Singal. She received her undergraduate degree from Cornell University.

 

Policymaker Profile: Tom O’Brien

By Anna Gurevich, Esq.

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

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

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

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

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

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

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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.

Policymaker Profile: Lois Johnson, General Counsel of the Health Policy Commission

By: Julie Myers, Esq.

In August 2012, Governor Patrick signed into law the third wave of health care reform in the Commonwealth, Chapter 224 of the Acts of 2012: “An Act Improving the Quality of Health Care and Reducing Costs through Increased Transparency, Efficiency and Innovation” (“Chapter 224”).  A major provision of Chapter 224 was the creation of the Health Policy Commission (“HPC”), an independent state agency charged with setting and enforcing the health care cost growth benchmark, certifying new payment methods and care delivery models and improving access to affordable and quality healthcare.

Over the last thirteen months, the HPC has made significant strides in its implementation of Chapter 224.  In addition to holding almost 40 public commission, committee or advisory council meetings, the HPC has published a report on consumer-driven health plans, issued guidance on the prohibition of mandatory nurse overtime, initiated the first cost trend analysis using the All Payer Claims Database, and developed a community hospital grant program.  This past October, the HPC held its first annual health care cost trends hearing, a two day event focused on the public examination of health care costs, and in December 2013 the HPC issued its first cost and market impact review report.

Lois Johnson has served as General Counsel to the HPC since its inception. Through the efforts of Ms. Johnson and the team of talented people comprising the HPC, Chapter 224 will continue its successful rollout and help the Commonwealth meet its cost containment and quality improvement goals, as well as position Massachusetts as a national leader in innovative health care policy.  Ms. Johnson was able to take time and discuss her career as well as her achievements working on behalf of the Commonwealth during this dynamic time in health law and policy.

 

Lois, could you give a brief description of your career path? Did you intend to focus on healthcare when you decided to go into the legal profession?

Sure. I can say that I definitely did not begin my legal career with a particular goal to get into health policy. After law school, I went to work for a big firm where I practiced labor and employment law.  Then, I took a bit of a detour and got a fellowship at the Georgetown Women’s Law and Public Policy Program where I worked at the Women’s Legal Defense Fund and focused on issues affecting women workers. It was the era of Clinton health reform, and so one of the projects I worked on was analyzing the effect of various proposals and legislative drafts on women workers.  From there, I practiced labor and employment law for a number of years representing individual and organized employees including those working at health care facilities such as hospitals or nursing homes. After that, I went to work at the Massachusetts State House as Counsel for the Senate Ways and Means Committee where our committee was charged with writing the state budget and reviewing major pieces of policy legislation. You can’t work on the state budget without dealing with health care issues because it represents such a significant portion of our state spending.

What were the major issues in health care when you were working on the state budget?

While working on the state budget, I focused on long term care, in particular the direct-care workforce, the people who are caring for our loved ones and provide daily living services and support to persons with disabilities and chronic care needs in facilities and in the community.  I also worked to develop career ladders and programs to both improve the quality of the care and the status of those workers.  During my time at the Senate Ways and Means Committee I developed an understanding of and interest in state government.  After my time at the State House, I was thrilled to then work for Attorney General Martha Coakley in the Health Care Division at the Office of the Attorney General (“AGO”).  It was there that I developed most of my knowledge of the current state of health care policy in Massachusetts and really began to learn about health care financing and the industry itself from both providers and insurers.

You were on the forefront of the AGO’s cost containment efforts, correct?

Working at the AGO was an incredible opportunity to develop my knowledge and be a part of health policy development in Massachusetts. One of the things I am most proud of was being a part of the AGO’s cost trends work and contributing to the series of legislative efforts since Chapter 58 of the Acts of 2006 focusing on health care cost containment.

Let’s talk more about your work at the AGO and your transition to working under Chapter 224 at the HPC?

So, for example, following Chapter 305 of the Acts of 2008 (“Chapter 305”), in which the Attorney General was authorized to perform cost trends examinations and obtain information from payers and providers, I worked on that effort for the first three reports. It was very exciting and a great opportunity to be part of a team of excellent attorneys.  I also worked on the legislative effort for Chapter 288 of the Acts of 2010 (“Chapter 288”) and then Chapter 224.  At the HPC, I am able to put those efforts into action.

Can you discuss the evolution of these particular statutes?

Chapter 305 was the beginning of a series of statutes to improve transparency in our State’s health care system.  It inaugurated the annual cost trends hearings and gave the Attorney General authority to conduct and participate in those hearings and perform cost trends examinations. It really initiated a watershed of transparency.  Through that first cost trends report, we identified the key metrics of health care costs and measures of efficiency — relative prices and total medical expenses — which were later codified in Chapter 288 and are now publicly reported routinely to our sister agency Centers for Health and Information Analysis.  Thereafter, Chapter 224 builds from Chapter 288 with a more comprehensive look at the framework for promoting value in health care as well as greater transparency to contain costs and improve quality overall.

The broad construct of Chapter 224 is to set a state-wide bench mark for health care cost growth.  To monitor this benchmark, Chapter 224 created the HPC as an independent agency to monitor performance under that benchmark through public hearings and dialogue between providers, insurers, consumers and government.  Chapter 224 also sets up a number of ways in which we can try to meet that benchmark and evaluate performance, for example, encouraging alternative payment methods and alternative delivery system models like ACOs and patient centered medical homes, programs to invest in community hospitals and cost and market impact reviews.

How does it feel to work for such a young agency on new legislation? Is it exciting, daunting?

It’s incredibly exciting and challenging. At the beginning there were four of us, and now we have over 25 employees. It’s fun, but it comes with its challenges.  There are specific responsibilities and expectations; my role involves compliance, procurement, developing policies for employees and making sure that we are operating consistent with applicable laws. Then there’s the policy and regulatory development and trying to fulfill our statutory responsibilities under Chapter 224.  I’m learning something new and challenging myself every day.

Could you speak more about who exactly comprise the HPC? Are there other attorneys, data analyst folks, policy people, etc.?

Right now, our Legal Division is three attorneys.  But we also have individuals using their legal expertise and other skills across the organization.  Across the HPC we have policy directors that are charged with different responsibilities.  There is a Market Performance team, a Care Delivery and Quality Improvement team, a System Performance and Strategic Investment team, a Cost Trends team, and a Data and Analysis team. We also have the Office of Patient Protection, as well as Operations/Administration and Finance.  The thing that’s unique about the HPC is our governance structure. Our staff reports to the Executive Director, who is hired by an 11-member unpaid board composed of public and private sector experts appointed by the State Auditor, the Attorney General and the Governor.

What are you looking forward to working on in your capacity at the HPC?

I think that Chapter 224 is a tremendous opportunity.  It is an experiment, which is really what I find exciting about health policy work in Massachusetts.  I’m looking forward to what we can accomplish with enhanced transparency and the rigor of our data analysis and examination in any number of ways — our annual cost trends hearings, our cost trend report as well the cost and market impact reports.

Is there anything you would like to add regarding your career, your experience at the HPC or your perspective on health law and policy today in the Commonwealth?

I feel like I have had some tremendous opportunities to work in this laboratory of Massachusetts and am thrilled to be able to continue to do that.

 

Julie Myers, Esq. is a legal analyst and mediator in the Health Care Division of the Massachusetts Office of the Attorney General where she currently focuses on the Office’s mental health parity initiatives and mediating consumer complaints. Julie is a recent graduate of Northeastern University School of Law and Tufts University School of Medicine earning her JD and Masters in Public Health.

Policymaker Profile: Secretary Polanowicz

By Emily Armstrong  

For many years, John Polanowicz led a helicopter assault unit on overseas missions as a company commander in the United States military.  Now the West Point graduate and Stanford business school alum will bring his leadership experience and healthcare expertise to his new role as Secretary of the Executive Office of Health and Human Services (EOHHS).  Appointed by Governor Deval Patrick in January 2013, Secretary Polanowicz will oversee 15 different departments and divisions, including the Department of Public Health, the Department of Elder Affairs, the Board of Registration in Medicine, the Department of Children & Families, the Department of Veterans’ Services and the Commonwealth’s Medicaid Program, MassHealth. Further, as a member of Governor Patrick’s cabinet, Secretary Polanowicz will offer advice and policy guidance regarding how Massachusetts can maintain its global reputation for excellence in healthcare while also maximizing efficiency and controlling costs.

On behalf of the Boston Bar Association’s Health Law Reporter I had a chance to speak with Secretary Polanowicz about his interesting background and vision for healthcare in the Commonwealth.

Question

You have a really interesting background.  Can you tell our readers how a graduate from West Point and officer in the military embarks on a career in health care?

Answer

It is actually a little bit of a different path to health care. When I left the military I had just given up my company command in Panama.  I was a company commander for the Blackhawks.  At that point in time, there were a lot of firms that recruited junior military officers, and several of us ended up working at pharmaceutical firms as pharmaceutical representatives.  I had the opportunity to work for a company called Stryker Endoscopy which was a quasi start-up out in Sunnyvale, California.  Stryker had just developed a new technology – a three chip camera that was used for minimally invasive surgery – which was just starting to take off (which dates how long ago that was).  At first I worked in operations, and then, because the company was so small, the CEO asked if I could also act as the CIO because I had some computer background from West Point and everyone was doing a little of everything.  After a few years, I decided to pursue a business degree at Stanford, where I met a number of physicians.  I became good friends with some of my physician-classmates so I decided to start taking some health care classes with them.

Allen Tobin, who was one of the original proponents of managed care and worked as a consultant with a health care company with expertise in operations improvements, similar to McKinsey or Bain but health care specific, offered me a position with his group.  I ended up working with that company after I graduated from Stanford.  I did health care consulting for a couple of years.  As a health care consultant, I worked with a number of academic medical centers, primarily doing operations work but also some strategic planning.  My last client was the University of Massachusetts.  When I got to UMass, I was ready to get off of the consulting bandwagon because I had two very small children.  At that time UMass asked me to put together an internal consulting group.  I built a small group of nurses, management engineers, and finance folks to do operations improvement and quality improvement on the UMass quality operations.  Eventually the UMass system merged with the Memorial System.  After I worked at UMass, I took a position as the CEO of Marlborough Hospital, which is a part of the UMass system, for approximately eight years.  I came to Boston to be the president of St. Elizabeth’s Hospital, which is the flagship for the Steward System in Massachusetts.  In January of this year I received a call from the Governor’s Office which asked me to come and work as his Secretary of EOHHS.

Question

Prior to receiving that call in January, had you worked with Governor Patrick before?

Answer

When Governor Patrick first ran for office, I was the CEO out in Marlborough.  Congressman Jim McGovern called and asked me if I would give Mr. Patrick a tour of the hospital.  At the time the congressman explained that Mr. Patrick was planning on running for governor, and that Congressman McGovern planned on endorsing him.  The congressman further explained that Mr. Patrick was making an effort to meet lots of folks in the industry.  I gave Mr. Patrick a tour.  Later, I received a call from the Governor’s campaign who stated that Mr. Patrick was putting together his platform committees and wanted me to serve as co-chair for the health care committee.  At that point, Judy Ann Bigby and Don Berwick were also committed to chairing the committee, and, frankly speaking, as a relative youngish CEO from a small community hospital I signed up right away to work with them and Mr. Patrick, who I already knew, and I appreciated his approach and ideals.  The Governor and I stayed in touch over the subsequent years.

Question

You have served in a variety of types of hospitals, from the University of Massachusetts, to a small community hospital, to a for-profit system.  How do those varying experiences assist you in your current role?

Answer

My past work at a large academic medical center that has a medical school associated with it, a small community hospital with a pluralistic medical staff, and a smaller academic medical center on the for-profit side, helps me as we are going through reforms and health care regulations to have a perspective on how things my office decides here impact hospitals of various sizes and types.  I know where the leaders are coming from in most of these organizations, whether it is a small community hospital or academic medical center, I have had those same types of issues when in the other positions I have served in.

Question

Your career started in public service and then took a turn to the private sector before you returned to public service again.  What do you see as the benefits and challenges of leaving the private sector?

Answer

One of the reasons why the opportunity to work in this position was really attractive to me is that I think what the public sector is doing is so important.  Certainly there are times when public employees are vilified, but I can tell you from working in the public sector, even for a short period of time, the dedication of public sector employees and how hard people are working on behalf of the entire Commonwealth should really be commended. People are not taking these jobs in public health to get rich and famous.

For me, it is important to help make whatever it is that we are doing here in the secretariat a little bit better.  If at the end of my role here as the Secretary I can look back and feel like we made things better, in a number of different areas, whether it involves access to services, protection for our children in foster families, or the coverage we are providing for the disabled – if we have made things better for those people it will absolutely be worth coming back and helping out.

Question

With the passage of the Accountable Care Act you are in a critical position at a fascinating time for health care.  What do you anticipate are changes that may come through or receive some direction from your office?

Speaker

It’s that old Chinese proverb “may you live in interesting times” and we certainly are.  Within the secretariat there are a number of areas we are trying to focus on within the time that I am here.  We need to get the Affordable Care Act right.  As the rules are promulgated at the federal level, we have a lot of work to do in the Commonwealth.  As people know Chapter 58 served as a blue print for the Affordable Care Act, but there is still a lot of work for us to be in compliance with the federal requirements.

We are spending a lot of time taking a look at the requirements of the ACA and evaluating what the impact will be on the state.  With a population with about 98 percent covered, we are in a very different position than a lot of other states and we need to make sure that we do not have unintended consequences from the federal legislation that is coming down.  Everything that is happening, we are looking at it from our lens, which is a large scale coverage model for the population, and we need to look at how that is being implemented here.  As a result, we asked for time to transition because we believe that our rating factors worked very efficiently and we need to make the necessary adjustments, as opposed to just having it be a light switched make that change immediately.

Question

For our readers who are primarily health law attorneys representing hospitals and other providers, is there any particular message or issue that you want those folks to know about from this office?

Answer

We are trying to be effective communicators and be as transparent as we can with respect to the work that is going on in this office.  We have a lot of people who have been doing health care and health care-related services here in the office for some time, but we also know that we have an incredible bounty of individuals here in the Commonwealth with depths of knowledge that we should be leveraging.  As a result, when we reach out to boards and commissions, or conduct studies, we are making an effort to ask outside experts to become involved.  It is in our collective best interest to get the best solution we can for the entire Commonwealth.

Question

What are your goals while in this office?

Answer

Certainly, as we already discussed, the Affordable Care Act is too important and too big for us not to get it right.  I would say there are two other things. One is around program integrity across the entire secretariat.  Program integrity is critical for our MassHealth population, or our Department of Transitional Assistance, as well as other departments that provide access to benefits – whatever those benefits might be.  Program integrity includes ensuring that everyone who is eligible for benefits – whatever those benefits might be – has access to those benefits.  In the alternative, it also means preventing those who are not eligible for receiving benefits from accessing those benefits.

Then finally I think that the last area of focus is addressing the Department of Public Health.  The first task is finding the next leader of the Department of Public Health.   Also, we need to find ways for the Department of Health to keep performing the great work that it does while also working more consistently with the secretariat.  We need to address the issues of silos within the Department of Health.  The focus of the new Department of Health leader should be how the department can work together with constituents and customers, while at the same time ensuring the public health and public safety.

Question

So you have been in this role for three months now. Have there been any big or small surprises?

Answer

Nearly every day I hear some story that feeds the soul somehow.  We often hear about work that’s been accomplished by our staff in one of the different agencies or commissions, or the really heartwarming stories that come up at our listening sessions.  We heard one the other day at a DTA listening session about a young single mom, with four kids, who uses the transitional assistant benefits to help feed her kids while she is studying to get her college equivalence degree.  At the end of the day those are the kinds of things that keep you coming back, because you know that what you are are doing is right.  That does not mean we cannot always strive to do better and be more efficient, whether it is from the Commonwealth’s perspective or from the viewpoint of a not-for-profit or for-profit hospital system, but it is really nice to hear those stories about how your staff is making a positive impact in people’s lives.

Emily Armstrong is an Associate General Counsel in the Office of the General Counsel at Beth Israel Deaconess Medical Center (“BIDMC”).  Prior to joining BIDMC, Emily worked at the Massachusetts Office of the Attorney General in the Consumer Protection Division investigating and prosecuting violations of the Massachusetts False Claims Act and Consumer Protection Law.  Emily started her legal career as a litigation associate at Goulston & Storrs, after graduating from Boston College Law School.  

Policymaker Profile: Laurance Stuntz

By David Sontag

When Jerry Tichner and I (co-editors of the Health Law Reporter) received the good word that John Halamka would be writing an article for this issue about the Massachusetts Health Information Exchange (“Mass HIway”), we thought readers would be interested in learning more about the person selected to serve as Director of the Massachusetts eHealth Institute (“MeHI”), the state entity responsible for helping providers and payers in the state connect to the Mass HIway.  Luckily for us, Laurance Stuntz was gracious enough to grant us an interview, the results of which are reproduced below.  But first, here is some background information about MeHI.

The Massachusetts eHealth Institute is a division of the Massachusetts Technology Collaborative and was established in Section 4D of Chapter 305 of the Acts of 2008, which is codified at M.G.L. ch. 40J, §§ 6D-6G.  The Legislature tasked MeHI with generally “advanc[ing] the dissemination of health information technology across the commonwealth, including the deployment of electronic health records systems in all health care provider settings that are networked through a statewide health information exchange.”[1]  More specifically, the Legislature provided that MeHI:

shall advance the dissemination of health information technology by: (i) facilitating the implementation and use of electronic health records systems by health care providers in order to improve health care delivery and coordination, reduce unwarranted treatment variation, eliminate wasteful paper-based processes, help facilitate chronic disease management initiatives and establish transparency; (ii) facilitating the creation and maintenance of a statewide interoperable electronic health records network that allows individual health care providers in all health care settings to exchange patient health information with other providers; and (iii) identifying and promoting an accelerated dissemination in the commonwealth of emerging health care technologies that have been developed and employed and that are expected to improve health care quality and lower health care costs, but that have not been widely implemented in the commonwealth.[2]

To accomplish this lofty goal, the Legislature directed the director of the Massachusetts Technology Collaborative to “appoint a qualified individual to serve as the director of the institute, who shall be an employee of the corporation, report to the executive director and manage the affairs of the institute.”[3]   Laurance Stuntz is that “qualified individual.”

Laurance is a graduate of Dartmouth College with a degree in history.  Surprisingly, he didn’t take a single computer class, although he has done a lot of programming over the years (the “real coders” do not let him code anymore).  His Dartmouth education taught him how to speak and write eloquently, which he has to do everyday in his new position.  Prior to taking the reins at MeHI in May of 2012, Laurance worked at NaviNet for a year as the Senior Vice President, Product Development.  Before NaviNet, Laurance worked at Computer Sciences Corporation (“CSC”) for almost 20 years.  CSC is a very large, multi-national system integrator. Laurance was a partner in the commercial healthcare division.  For the last 12 years he was there, he concentrated exclusively on healthcare information technology (“IT”) consulting.  By the time he left CSC, Laurance was in charge of the national collaborative communities effort, which was the CSC practice that concentrated on the exchange of health information and helping organizations (e.g., payors and providers) talk to each other. Also at CSC, Laurance was the technical architect for the New England Health Exchange Network (“NEHEN”) in Massachusetts from 2000 until 2011, when he left CSC.

Soon after Pamela Goldberg became the CEO for the Massachusetts Technology Collaborative (“Collaborative”) in June of 2011, she began a search for a new Director of MeHI.  Based on all his work with CSC and NEHEN, Laurance was highly recommended to become the Director at MeHI.  And the rest, so they say, is history.  But there is so much more to know about Laurance – why he is so interested in health information exchanges, why does he think healthcare IT is so important, and how he is working through (with his colleagues and advisors) some of the tricky issues posed by health information exchange, to name a few.  Reading Laurance’s own explanations on these issues provides so much more depth than I could provide when interpreting.

What made you interested in Health Exchange or did you fall into it?

Originally at CSC I did a lot of work for retail and financial services clients. I was at a point in my career where I was wondering whether I should leave CSC because those industries didn’t particularly interest me. We had this new project at NEHEN, one of the early health information exchanges and it seemed very interesting. It was an industry that I found interesting from a career perspective, as well as from a socially good perspective. I’m not a doctor so I’m not going to deliver medical care directly, but the work we do in healthcare IT has a real effect on the way all of us experience the health care system. I purposely moved within CSC to the NEHEN project and over the 11 years I worked on that project I helped grow that organization from its original five founding members to about forty members when I left, as well over one hundred and fifty small practices using the portal application. I intentionally got into health IT and CSC allowed us, though the NEHEN project, to create something brand new. It was a totally unique project because we effectively had the Massachusetts health care system as a client.

Can you explain a little more your concept of healthcare IT as a “social benefit”?

From my perspective, in healthcare right now, there is a tremendous opportunity to improve efficiency in the way all of us experience health care.  I really think that IT is one of the key ways we are going to get that. For instance, the Health Information Exchange that we just launched on October 16 (2012), is going to transform the way all of us interact with a system when we move care from one provider to another. In the past year, two of my children had injuries.  One had to go from the ER to his PCP and the other went from his PCP to a specialist.  All of these providers were in different networks.  We had to carry records with us from one system to another.  The health IT work that we are doing affects all of us.  On NEHEN, when we were working on eligibility verifications, claims status inquiry and claims submission, all that work made it easier and less of a pain-in-the-neck for patients and providers to deal with the administration in the health care system. Another example that I’ve heard a lot about recently is that systems are emerging that provide a good, convenient way to schedule an appointment online.

I wanted to work in an area where I felt like we could affect the lives of lots of people, even if I wasn’t delivering medical care. There is so much opportunity within healthcare to improve the customer service and over time, to improve the quality of care. I did a lot of projects at CSC around e-prescribing and there are significant safety benefits to getting prescription history; making sure there are no interactions between current medications and what the doctor is going to prescribe. IT, in those cases, really has the potential to save lives.

Can you tell our readers what a health information exchange is and does, and what the Mass HIway is aimed at doing and how it is improving health care?

We launched Mass HIway on October 16, 2012.  We demonstrated from Massachusetts General Hospital, Governor Patrick clicking the button that sent his medical records to BayState Medical Center in Springfield. We demonstrated, in an initial, high level way, the fact that over the next few years we are going to connect every provider in the state so they can communicate electronically from within their electronic health records (“EHRs”). We will make it easy to send records to the next setting of care. For instance, when your kid goes into the ER for a broken arm and the doctor sets it and sends info about that to the PCP for a follow-up visit or to the orthopedic surgeon for a follow-up visit, the record of that visit can be sent electronically, and seamlessly, and securely from one provider to another. Our goal over the next 2 years is to connect the majority of providers in the state all together over this one single statewide health information exchange.

I think of this as laying the gravel under the interstate highway system – we are really creating the foundation for lots of really interesting work that really will totally transform healthcare. For instance, one of the things that we have planned for Phase 2 of the health information exchange, which we are planning for now and will be implementing in 2013 and 2014, is patient access to their own data. So we will be developing the policies and procedures that are necessary to allow a physician to send patient data to them or to their app of choice. For instance, a patient could sign up with Microsoft Health Vault as a personal health record and the statewide health info exchange will allow a provider to send that patient’s data to their personal health record account. We are also going to be working on ways that patients can designate that their data goes to other tools, like a wellness app.  There are all sorts of tracking applications that are out there on people’s phones. If we could include real clinical data with the user input data in these applications, I think there is really powerful potential for helping patients to manage their own health data. On the whole patient engagement front, the health information exchange is a big piece of that.

The other thing the health information exchange is going to give us is the opportunity to have a lot better understanding of population health as a whole. We are doing some demonstration projects now that allow us to distribute population health queries to participants on the network and allow those individual participants, maybe large EHRs like Beth Israel Deaconess Medical Center or Atrius or the Mass League of Community Health Centers, to receive the query, run the query against their own datasets, and send back a de-identified dataset to an organization like the Department of Public Health so they can understand in real time what is going on with the health of our community, which we’ve never been able to do before. So, initially we are going to connect everybody with the health information exchange, but then there is a whole layer of public health and personal health on top of that – that is how the health information exchange is going to transform how we all get care.

One word stuck out to me in your last response – de-identified. As a health lawyer, I recognize obvious issues around privacy with relation to the health information exchange and the accessibility to data by large numbers of people.  Some of it will be identifiable data and some will be de-identified data or non-identifiable data. On behalf of the Health Law Section of the Boston Bar Association, do you call lawyers to help you with those issues?

There is a whole legal and policy workgroup of the health information exchange that has been helping to guide the policy. So there are a couple of things that are built into the legislation that governs the health information exchange, as well as the policies and procedures, which largely stem from the state legislation as well as the federal HIPAA legislation. One of the key features of the Mass HIway is that we have a strict opt-in policy to the health information exchange. In order to share a patient’s information over the health information exchange, each patient must explicitly give consent for their provider to share the patient’s health information. So in Phase 1 of the Mass HIway (the  statewide health information exchange), we are starting with pushing out data. We are replacing all the faxes and paper that move around today with electronic transmission and there is a whole bunch of benefits we see to that: a) it’s more efficient; b) it’s auditable. A patient can now go to a provider and inquire, “Who have you disclosed my data to?”

Our experience is that the vast majority of patients will opt in to use of the health information exchange under these conditions because they understand they will get better care, because the provider they are going to will have a better picture of their health. The HIE is more secure than using a fax.  Although a user of the HIE can select the wrong recipient of that HIE transmission, human error, every participant of the exchange is going to be an authorized user. So, there is no chance of sending a record to Joe’s Pizza Shop or a newspaper because non-participants in health care would never have an account at the HIE. Phase 1, with the strict opt-in policy and just pushing out data, is a giant leap forward. And the next phase, a lot of work on which will be in 2013, is working on the policies and the infrastructure we need to have a centralized and robust consent management process for patients to be able to register how they want their health information to be used and available for query. For instance, if a patient at BIDMC wants authorized providers to have access to any of his/her information, that patient can sign a consent that would be registered with the statewide exchange that says “any of my data that came from my visit at BI or my PCP, I am fine with sharing.” However, if you happen to be admitted to McLean Hospital, a psychiatric hospital, you may not want to share any of that data with other providers unless you explicitly allow it, so you might have a default opt-out of sharing that data and a specific opt-in for your behavioral health specialist. All of that consent management will be registered at the core health information exchange. There is going to be a lot of work from a policy perspective to understand whether this is sufficient. To the Health Law Section at the BBA, we are trying to reach out as much as possible to the community to understand where everybody’s concerns are. The health information exchange has a legal policy workgroup and folks should absolutely volunteer to participate in that. We need all the volunteers we can get.

How do people volunteer to get involved?

The Health Information Technology Council creates these work groups as needed. People interested in learning more about getting involved should contact Mark Belanger at [email protected]

So you are actively engaging lawyers in conversations about health IT?

They are invited to the work groups, in general. We have a few lawyers represented, particularly on the legal and policy work group.

Is your position now focused more on how the HIE works or do you also effect some of the policies the HIE will create?

It’s a combination. MeHI is not just the HIE. MeHI has a whole set of increasing responsibilities under Chapter 224. So we have three current programmatic responsibilities: (1) Connect every provider in the state to the health info exchange; (2) Run the regional extension center, which is helping abut 2,500 primary care providers install and use electronic health records meaningfully; and (3) We administer the Medicaid Meaningful Use incentive payment program. Under the Federal Meaningful Use Program, they delegate to the states the responsibilities to run payment administration for the program. We have supported more than 3,000 Medicaid providers getting paid for Meaningful Use incentives and  more than fifty hospitals. Overall, we have helped pay out more than $120 million in Meaningful Use incentives to Massachusetts providers as part of that program.

Those are the three current programmatic areas, and in addition, over the next four years we’ve been asked by the legislature as part of Chapter 224, to help every other provider in the state get and use electronic health records and connect them to the HIE, with a specific focus on the underserved communities who didn’t qualify for the Federal Meaningful Use – communities like long-term care, home health and behavioral health. Our group will be helping all those organizations start to use EHRs and at the same time helping to connect each of them to the HIE, so they can exchange data electronically. In that role, there is policymaking we need to do. For example, there is an annual report to the legislature about the state of health IT adoption, key areas of need that the legislature might help us address, the accomplishments – all of that – sort of an annual report that feeds statewide policymaking regarding health IT adoption. So there is a combination of programmatic, as well as policymaking jobs within MeHI that I am responsible for. The third area of key responsibility comes out of our legacy with the Mass Tech Collaborative.  Mass Tech is an economic development agency for the state, a quasi-agency. In health IT, we have a similar role that comes from our heritage at Mass Tech to help encourage and develop the health IT community in Massachusetts. So, we have programs around internships and workforce development that are designed to help grow the health IT industry in Massachusetts, create jobs and bring them here.

What has the reception been from providers – both physicians and hospitals – to the policies and outreach to try to get people involved?

It has been very positive. On the HIE, we have had very rapid interest. On our programs around helping to get EHRs up and running, what we find is that providers generally (but not universally) feel this wave of EHRs is coming and it’s something they are going to need to figure out how to adopt, so they welcome the support we are able to give to help ease their transition to EHR. So what we find is that providers are very welcoming of our role and they find the education and the infrastructure-development things that we do as a quasi-agency to be very helpful. Frankly, it’s why I was interested in taking this job; you rarely get a chance to help change the way 6 ½ million people experience the healthcare system. We have the opportunity to help every provider connect and make their lives more efficient. We got enough capital support from the federal and state government to make it relatively – not relatively – quite inexpensive for the providers to connect and support the operations of the exchange. I really think it’s a perfect storm of opportunity here to – going back to what we first started talking about – use health IT to really change the way that care is delivered.

Any advice to providers or counsel to providers who are behind the curve about what they should start doing (other than dedicating more money to EHRs) or thinking about, so they can get up to speed and get to where other people already are?

Education and training.  I have to research and see whether we are doing a particularly effective job at providing those resources.  One of the things that we expect to help provide is a series of training materials and educational materials for providers to help them understand what it is really going to take to start to adopt EHRs and what they can start doing now is just educating themselves on ways that other providers have effectively adopted technology. Because it doesn’t have to be a big bang, all-at-one proposition; it could be a gradual sort of thing. Providers have been very successful at this over the years, so they can educate themselves on what has worked well for other providers. Go to http://mehi.masstech.org/useful-resources for more information.

Anything that has surprised you since coming into your new position?

I had no public service background; I didn’t work for the government or anything like that before coming to this.  Frankly, I have been very pleasantly surprised by how dedicated the folks in government are to helping, to furthering the public good, making sure the system works better. Sometimes sitting on the outside you can feel like there is bureaucracy or there is unnecessary sort of slowness in government and that has not been my experience. I have been very encouraged by how committed folks in public service, in general, are towards the public good.

In light of the timing of this conversation and the events of November 6th, do you see health IT as a political issue or do you see it as something people have adopted and understand, obviously funding aside?

I think it’s a non-political issue. The federal Office of the National Coordinator was started under President Bush, then it was continued under President Obama. My expectation is that it will continue on under President Obama. On the Massachusetts side, I’ve found that in my conversations with different legislators is that health IT is broadly supported on both sides. So, I don’t think it’s political. There may be methodology differences and potential funding differences, but I think that it is generally a both sides of the aisle thing. One of the more vocal promoters of health IT over the past 10 years was Newt Gingrich, who did a lot of work with Hilary Clinton on this before she took the Secretary of State job. I think that’s just symptomatic of how broad-based the recognition is that this is a good thing and is not a politicized thing.

Any parting thoughts in terms of any issues you think people should be aware of – specifically, the health lawyers out there – anything they should be focusing on or thinking about or legislating about?

I think the big question for us over the next year is how to effectively manage and implement the consent process so we protect patients’ privacy, but we don’t create a system that is so onerous that providers can’t get the data they need to treat patients with the full picture of the patient’s health. I think from a health law perspective, what I would ask the lawyers out there to think about is how do we make this an efficient, fair and open process so we can properly and fully inform the public, so that they can make an informed decision how to/what consent to give, but that we do that in as efficient a way as possible so health care can be delivered very cleanly and with all the information a provider needs to deliver safe care. That is a broad charge, but I think there will be a lot of conversation about this consent question over the next year and I think particularly the legal profession can help a lot in making sure it’s done efficiently and it doesn’t create a barrier to care.

David Sontag is Associate General Counsel at Beth Israel Deaconess Medical Center, and formerly practiced as an associate at Choate, Hall & Stewart LLP. His current practice focuses on negotiating and drafting contracts, and advising and resolving legal and compliance issues related to mergers and acquisitions and other business relationships with the medical center. David also advises medical center clinicians regarding guardianships, health care proxies and related informed consent issues, and oversees the process for obtaining guardianships for medical center patients. He is a graduate of Washington University and the University of Pennsylvania, where he received degrees in both law and bioethics.


[1] M.G.L. ch. 40J, § 6D(a).

[2] Id. at § 6D(c).

[3] Id. at § 6D(a)

Obtaining an OIG Advisory Opinion: The General Counsel’s Perspective – Interview of Daniel Orenstein, General Counsel, athenahealth, Inc.

By Julia R. Hesse

As many of you may know, athena­health, Inc. recently received a fa­vorable Advisory Opinion from the Office of Inspector General (Advis. Op. 11-18, December 7, 2011). Athenahealth is best known for its Internet based practice and revenue cycle management, and electronic health record services. Athenahealth also offers patient communications, and care co­ordination services on the same integrated technology platform. The favorable Advisory Opinion relates to athenahealth’s care co­ordination service. The Advisory Opinion itself has been discussed in the press and also by trade associations like the American Health Lawyers Association, and is interesting in its own right.

The purpose of this interview is not to discuss the substance of the Advisory Opinion, though. In­stead, I recently sat down with Daniel Orenstein, the General Counsel of athenahealth, Inc., to discuss the process of obtaining the Advisory Opinion. The ques­tions are all mine; Daniel provid­ed all answers.

Daniel Orenstein, General Counsel of athenahealth, Inc

Is this is the first Advisory Opin­ion your company had sought?

Yes.

Who within the organization started the conversation with regard to getting an advisory opinion?

It’s a “chicken and egg” question. I was called into a meeting with the CEO and our head of Business Development, who were discuss­ing this business idea. They knew that it raised some potential anti-kickback issues and they raised the issue of a potential advisory opinion with me because we had already discussed seeking advi­sory opinions in other situations. The anti-kickback analysis was often part of the initial conversa­tion on a major initiative.

 What was different about this project that made you decide to go forward with the Advisory Opinion process?

This was a new planned service offering in the “drawing board” stage and where we had the strategic opportunity to get the security of the opinion. It wasn’t a “must-have” because it is a complimentary service offering – while it was a highly strategic initiative, if we got some nega­tive feedback we could work with it … and the prospect of getting positive feedback outweighed the negative. Also, because it is a new service offering – essen­tially creating a new market for information exchange outside of the usual paradigms – getting an advisory opinion could give us a competitive advantage.

What was the process once you decided to seek an advisory opinion?

Actually, we started influencing the development of the business model so that it would be con­sistent with what we thought the request was going to be – that process began months before we initiated the request and was on­going throughout the time the re­quest was being made. You have to continue to be vigilant about the approach you are taking be­cause the product development concepts are changing all the time. By the time we contacted outside counsel, we were well on the way to internally reinforc­ing the model based on what we thought we would be submitting as the model under the advisory opinion.

Did you have the opportunity to discuss the idea informally with the OIG before the formal request was made?

No. The OIG has a set process where they wanted the written request and then they take some time and ask for more informa­tion. That’s when you kind of get into more of a dialogue. But the OIG is clear; they wanted the initial request in writing. We did explore with outside counsel, though, whether it was possible to withdraw the advisory opinion request if the OIG reacted very negatively to the concept.

Did you have any ability to di­rect your advisory opinion re­quest to a particular person

within OIG (i.e., someone who may have been known in the community as being more fo­cused on Health IT issues)?

No. We were assigned an attor­ney who turned out to be very engaged and very good and easy to work with and responsive. We were very concerned, though, when we got the OIG’s initial re­quest for additional information, because the tone of the request seemed to indicate that maybe there were some things about the model that they didn’t un­derstand, or we didn’t commu­nicate adequately enough. But when we started engaging with the OIG about their questions, we got through that and the OIG felt that we were able to respond ad­equately.

Did you send all of your informa­tion to the OIG only in writing? Or did you have an opportunity to present the vision of the proj­ect to them, either in person or over the phone?

We didn’t do any communications directly. All of the communica­tions were through our outside counsel. We suggested meeting in person as a possibility and we would have done that. The OIG wanted our first response in writ­ing; we offered to do a “demo” of the product but the OIG decided they did not need a demo. We did provide some charts and graphi­cal representations of what we were doing as exhibits that I think were very helpful. In one of the rounds of responses we tried to make it simpler and easier to un­derstand than some of the narra­tive that we had given previously.

How many rounds of back-and-forth did you have with the OIG?

We received two requests for ad­ditional information, and there were a couple of questions which we answered verbally. We also had to submit a factual certifica­tion at the end prior to issuance of the opinion, and there was a round of back-and-forth on the factual certification.

Did some of their requests for information make it clear that perhaps they didn’t understand the model in the way that you would want to present it? Were you surprised at all by the con­tent or the depth of their re­quests for information?

The OIG’s requests were pretty much what we anticipated. We knew we would get some ques­tions and we would probably have a little work to do to respond. The OIG had a lot of questions around the economic model. I think they were correct to push us on that, because we hadn’t articulated it as clearly as we should have and it forced us to go back and spend some significant time internally. We revised the pricing model to make it simpler. I, personally, was on a crusade to make the model simpler. We needed to make the pricing model simpler – not only for the OIG, but we needed to make it simpler for the market to understand this. If we can’t com­municate it adequately to a so­phisticated government agency, just think about communicating it to a two or three doctor practice that doesn’t have a lot of time. I think that was probably the most salutary part of the process. We actually got to a simpler econom­ic model out of the process.

How long did the advisory opin­ion process take? And how long did you think it was going to take?

We submitted it in May or June (of 2011) and we had the opinion in December. I was pleased that we had it within the year. The OIG responded very quickly, as compared to a number of other agencies that we work with. Also, some of that time was spent on our side, with internal process­ing of responses back and forth. The OIG responded efficiently – which is great because pressure started mounting towards the end of the year to roll the service offering in general availability at the beginning of 2012. I was a little surprised that the OIG was so responsive. I had the “Plan B” starting to formulate just in case we didn’t have the Advisory Opinion in hand before that sales meeting in February.

When you think about it from the OIG’s perspective, though, they must love getting the advi­sory opinion requests because that’s where they get to do the big policy-level thinking, right?

Yes. When we received the work product back from the law firm, we felt it needed more of the policy argument in it because we wanted to appeal to that bigger picture thinking. We think there are some really strong public policy arguments in favor of this model because it facilitates care coordination. There are a lot of folks in the government who are interested in that now because of the challenges with making health exchange work properly. So, we worked to include the pub­lic policy argument and I think, at the end of the day, that was an important factor in the decision making.

I can see why you would want to put the request in context and explain not only why it mat­ters for the business, but also who it benefits and why?

That actually took a little while to communicate to our law firm.

The challenge from the out­side lawyers’ perspective is always that we never know your business as well as you do and therefore we can’t di­vine the public policy piece as well as the business can.

That’s right. There were a couple of points in time where I think it was appropriate that we took over a bunch of the drafting and a bunch of the processing. For example, we were really best po­sitioned to work on the economic model internally, and we were probably best positioned to craft the policy arguments.

Were there any unanticipated “hiccups” along the way that, in hindsight, you would think might be part of any advisory opinion process?

The OIG’s initial response back to us was a little bit of a shock. In some ways it was encourag­ing; but in some ways it took you aback to see how much they were getting into everything and ques­tioning some of what you were do­ing. On the other hand, we were pleasantly surprised about the OIG’s responsiveness.

 

Julia R. Hesse is a partner in the Healthcare Group of Choate, Hall & Stewart LLP and formerly prac­ticed as Associate General Counsel at Tufts Medi­cal Center, Inc. and as an associate in the Health Care practice group of Ropes & Gray LLP. Julia’s practice focuses on the full range of health care-related regulatory issues and other business and transactional matters important to hospitals, aca­demic medical centers and affiliated faculty and community physicians, including the implementa­tion of quality-related programs and systems, ne­gotiating and implementing managed care agree­ments that tie reimbursement to the achievement of quality goals, and advising health care insti­tutions and faculty practice plans on the devel­opment and implementation of compensation systems that reward the achievement of quality-related goals. She is a graduate of Williams Col­lege and the University of Pennsylvania, where she received degrees in both law and bioethics.

Discussion with Mr. Aron Boros, Commissioner of the Massachusetts Division of Health Care Finance & Policy

By Phillip Rakhunov

Introduction

 

On August 22, 2011, the Patrick-Murray Administration announced the appointment of Áron Boros as Commissioner of the Division of Health Care Finance and Policy.  Since 2008, Mr. Boros has served as Director of Federal Finance for state’s Office of Medicaid.

In his capacity as Director of Federal Finance at MassHealth, Mr. Boros has been engaged in key initiatives, including MassHealth and federal expenditures.  Over the last several years, he has been deeply involved in a variety of health care payment initiatives, including the MassHealth Section 1115 Medicaid waiver and and Health Safety Net programs.

Mr. Boros is also an attorney and received his J.D. and Masters in Public Policy from the University of Michigan. Prior to joining the Office of Medicaid, Mr. Boros worked as an Associate in Foley Hoag’s Boston Office, where he researched and implemented strategic initiatives for health care industry clients. His work included initiatives related to chronic disease management, health information technology, and evidence-based medicine. In this role, Boros became an expert on Medicaid and Medicare regulatory issues, including national coverage decisions, coding and payment concerns. Mr. Boros also has experience in a hospital setting, having served as a Law Clerk at Trinity Health’s Saint Joseph Mercy Hospital in Michigan.

Interview

Mr. Boros, please tell me about how you became interested in public health?

My dad is a doctor.  He is an oncologist, and oncology plays a particularly important role in our society.  It’s exciting medicine, it’s challenging medicine, and for many reasons: not just the science of it, but also the human aspect of it.  I always knew, however, that I did not want to spend fifteen years in [medical] school after high school, so ultimately I did not think that medicine was the direction I wanted to go in.

What really inspired me to go back to graduate school was– and this will date me a little bit – it was the Supreme Court election case of Bush v. Gore.  Yes, Bush v. Gore drove me to law school.  Even then, I knew I didn’t really want to be a lawyer in the long term, but I also knew I wanted more tools than a policy degree would give.  So, I went to the University of Michigan for a joint program in Law and Public Policy, hoping to develop a career in healthcare policy and policy making.  So fast forward, and this is a dream job for me.  The Division of Health Care Finance & Policy really straddles both those worlds.  It’s deep in the weeds on data analysis, data collection, and ultimately in really drawing a story out of the data at the lowest level.  At the same time we are involved in helping shape Massachusetts state policy and the interactions between federal and state policy at the systematic level.

I want to ask you a few questions about your background, going back to your years at Amherst College.  During your time at Amherst, were you already considering going into public service?

I was.  I always knew that there was an underlying social mission for me that was going to be more than, for example, investment banking.  But, back then, I certainly didn’t know what that was going to be.  My first job out of college was at a graphic design firm, but I always had that sense that giving back is important.  I’ve been given a lot of opportunities and I’ve been blessed with certain advantages in life, and I felt that there was a responsibility that came along with that.  I can’t say that I knew, when I was graduating from Amherst, exactly how that would play out – but it’s no surprise to me that I ended up in this kind of role.

Tell me how your legal education at the University of Michigan impacted your career.

While I was in law school, I did two really meaningful things that influenced my career path.  First, I worked for the General Counsel’s office at the Trinity Health’s Saint Joseph Mercy Hospital in Michigan.  It was a really interesting look into what healthcare law really is.  I think that a lot of law students don’t understand how much of healthcare law is transactional, as opposed to things like end of life decisions, or policy about minimum credible coverage. When you look at what hospitals are actually doing day-to-day and what they need legal advice about, you realize that most health law is transactional.

Take a big, integrated health care system: hospitals, physician groups, and other sites of care like community health centers . Because they are big employer, they have a lot of labor and employment issues. They are land-owners, so they have real estate and capital assets issues. Of course mergers and acquisitions and contracting have unique health law concerns, such as compliance with self-referral and antitrust laws.  Contracting also involves increasingly complicated relationships between hospitals, physician groups, and other kinds of ambulatory care providers and long term care providers, not to mention health plans.  Other industries aren’t regulated to the same extent as health care. Here we have special rules surrounding health care arrangements because of Medicare and Medicaid, for example.  So, every merger, every contract, has another layer of complexity.  The legal clerkship that I did at the Mercy Hospital was first time I heard about Stark laws; first time I heard about anti-kickback laws.

The other really important thing that I did when I was in law school is that I worked for the graduate employees union.  I was on the bargaining team that represented graduate employees in a couple different roles.  And that was also a really an important part of my career development.

After law school, you spent some time in the private sector at the law firm of Foley Hoag?

Yes. For several years after law school I worked at Foley Hoag LLP, in their government strategies group.  There, I got my education from Nick Littlefield and his team about how the world really works with respect to policy making and the way things get done in Washington.  I also did a lot of pricing work, working with payers.  For example, some of our clients had medical products of one kind or another, and we worked with Medicare and Medicaid about how those products would get paid for.  After Foley, I left to go work for the Patrick Administration in the Medicaid office.

Tell me about your work with the Medicaid Office. 

At the Medicaid Office, I worked on the financial aspects of the federal/state relationship.

And, is that the program known as the MassHealth?

So, you can decide how much you want to get into the weeds on this, but it’s probably good for people to understand that MassHealth is a specific state program that provides health care services.  Medicaid is the state-federal partnership that overlaps most, but not all of what MassHealth does. For example, Commonwealth Care is also part of the Medicaid Office.  So is the Health Safety Net that we run here at the Division of Health Care Finance & Policy and the Medical Security Program run by Division of Unemployment Assistance.  The Office of Medicaid is bigger than just MassHealth.

It is clear that you have had quite a diverse education and professional experiences; please tell me how these experiences have come together for you?

It all comes together as kind of building blocks:  in law school, I learned textbook law; in policy school, I learned textbook economics and statistics; at the Hospital, I learned what health law really was; and with the union, I started my education in politics and learned about power of negotiation and bargaining; then, I went to work for Nick [Littlefield at Foley] and learned how policy making and politics happen in the real world at the State and Federal level; and then went to work for the State and really got to understand how the sausage gets made.

What led you to begin your public service with the State Medicaid Office?

Primarily, it was that Massachusetts continues to be a leader in taking a hard look at the health care system and making it better.  Governor Patrick is upholding a long tradition of leadership on health care issues that stretches back for at least 20 years. Lots of people deserve credit for laying the foundation that the Governor is building on, including Governor Dukakis, Senator Kennedy, and Mitt Romney (whether he acknowledges it or not).

I want to ask you about a couple of the initiatives that I understand you worked on while you were at the Medicaid Office and which I believe are now a part of your areas of responsibility.  One that you mentioned earlier is the Health Safety Net and another that I wanted to ask about is the Essential Community Provider Trust Fund.

The Health Safety Net is a program run by my office that pays hospitals and community health centers for care that otherwise would be uncompensated.  This covers people who either are uninsured or under-insured for the services provided by the hospital.

Federal Health Reform (the Affordable Care Act) will have a significant impact on the Health Safety Net because of the way it changes the coverage market.  Over the next couple of years, until those federal rules come into effect, we will be taking a hard look at how the Safety Net fits into everything else that is going on with the implementation of the ACA in Massachusetts.

Is the Safety Net program unique to Massachusetts?

Yes.    It’s a claims-based system for paying for uncompensated care, which I believe is unique among states.

What is your take on the recent conversations about cost containment and payment reform?

The Patrick administration, from the Governor and the Secretary [of Health and Human Services], down to agencies like ours, has proposed an approach that achieves cost containment by promoting  integration of the delivery system and improvement of the experience of care and the delivery of care.  Instead of a hospital and a physician never speaking to each other and having their own isolated connections to the patient, we want to build those connections. That way, the physician knows when a patient goes to the hospital and manages some of their care in the hospital; for its part, the hospital communicates about discharge back to the physician and helps coordinate follow-up care to ensure the patient doesn’t end up back in the hospital.

The goal is to use the transformation of the delivery system to drive higher-value care –  better quality, and lower cost – by taking advantage of the improvements that you can get by breaking down some of these walls.  The idea is appealing, and it’s easy to string together some sentences about it – but it’s hard to do in practice.

If you know nothing else about the big picture of health care policy, take this: the [Centers for Medicare & Medicaid Services] just released data showing that in Massachusetts, per capita healthcare expenditures for every man, women and child are $9,278 per year.  That means that, on average, my family of three is paying almost $30,000 a year for health care expenditures.

This figure includes Medicare, Medicaid, out of pocket, and insured costs that either you or your employer are paying in premiums, distributed among the population.  This is the highest per capita cost of all of the states, in the highest per capita cost country in the world.  We can reduce those costs.  It will be hard, it will really take change to accomplish this, but it is possible and there is no reason for us to be the most expensive health care system in the world.

You’ve been in this job now for six months or so.  What has surprised you the most coming into this particular position of the Commonwealth?

There are a lot of hard choices to be made about lowering costs and improving quality, and there are lots of complex interactions between various stakeholders inside and outside of government.  What has surprised me the most is the high level of collegiality in the face of those hard choices and difficult tradeoffs. I expected there to be more contentiousness between the parties.  When push comes to shove with the cost containment legislation, that may change.  But I have been really impressed by the level of discourse inside and outside the Statehouse, and how everybody really is taking this problem seriously.

That said, the choices and challenges will only get harder and I encourage people who are thinking about this to continue to be bold while maintaining civil discourse, in order to push the envelope of what we can accomplish.

As you know, we are coming into what is anticipated to be a very heated election year, and I’m wondering whether the political climate impairs your ability to do your job of analyzing the data and trying to make decisions based on the numbers and economics, as opposed to politics.

The Division has, and deserves, a strong reputation for providing objective analysis.  I don’t see that changing.  We can’t control what different people try do with our analysis, but our reputation speaks for itself: we stick to our best understanding of what the data tells us.

Is there one issue that you would like to bring to the forefront of the readers’ minds?

No matter what happens, there is going to be a lot of change in the health care system in the next few years.  Your clients are going to need to invest in understanding value.  What I mean by that is that they are going to be asked more and more to prove that their piece of the heath system provides high-quality care that actually makes people healthier and happier at a reasonable price.    Attorneys who understand that communicating about value is going to drive a successful business model will be positioned to best support their health care clients.  To be a little bit more concrete, right now we are talking about cost and payment systems, integrated care.  The conversation of tomorrow will be quality measurement, outcome measurement, and really proving that the money spent is delivering results. I anticipate that attorneys who understand that dynamic are going to be in great demand.

Conducted on February 29, 2012

An experienced business litigator, Phillip Rakhunov represents financial institutions, health care organizations, investment professionals, fiduciaries and various other business entities in a broad array of business disputes, including securities fraud litigation, enforcement of restrictive covenants, and high stakes contract litigation. Mr. Rakhunov regularly appears in state and federal courts, as well as before arbitration and mediation tribunals. Fluent in Russian, Mr. Rakhunov also represents Russian-speaking clients and other clients in need of his unique background and language.

Mr. Rakhunov dedicates a considerable portion of his time to a wide array of pro bono work, including representing parents in international child abduction matters, representing victims of domestic violence in obtaining 209A restraining orders, and representing non-profit organizations in contract disputes, among others.

While attending law school, Mr. Rakhunov served as a judicial intern to The Honorable Patti B. Saris of the United States District Court for the District of Massachusetts.