Posts Categorized: Summer 2014

Policymaker Profile: Sarah Iselin

By: Margaret Schmid, Esq.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8. What are some current challenges facing Massachusetts payors?

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

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

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

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

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

 

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

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

By: Stephanie Regan, Esq.

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

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

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

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

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

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

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

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

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

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

 

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

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

[2] M.G.L. c.123 §7(a)

[3] M.G.L. c.123 §8(a)

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

[5] M.G.L. c.233 §20B(b)

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

[7] M.G.L. c.233 §20B(b)

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

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

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

[11] M.G.L. c.233 §20B(a)

[12] Id.

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

By: Sean Baird, Esq.

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

 Johnson v. Kindred Healthcare, Inc.

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

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

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

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

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

 

Licata v. GGNSC Malden Dexter LLC

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

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

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

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

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

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

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

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

 

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

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

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

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

[4] See id.

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

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

[7] See id.

[8] See id.

[9] See id. at 851-852.

[10] See id.

[11] See id.

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

[13] See id.

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

[15] See id.

[16] See id. at 854-56.

[17] See id.

[18] See id. at 851.

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

[20] See id.

[21] See id.

[22] See id.

[23] See id.

[24] See id. at 843-44.

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

[26] See id.

[27] See id. at 844-45.

[28] See id. at 844-45.

[29] See id. at 846.

[30] See id.

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

[32] See id. at 846-48.

[33] See id.

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

[35] See id. at 848.

[36] See id.

[37] See id.

[38] See id. at 848-49.

[39] See id.

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

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

Health Law Case Brief: Bryant v. Jackson

By: Andrew Egan, Esq.

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

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

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

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

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

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

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

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

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

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

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

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

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