Posts Tagged: Health Law Reporter

Litigating Tanning Salons in Massachusetts: A Policy Proposal

By: Robert A. Ciccia[1]

Introduction

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

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

The Problem

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

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

The Strategic Marketing of Tanning Salons in Boston

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

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

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

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

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

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

The Role of the Federal Trade Commission

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

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

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

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

Massachusetts Consumer Protection Act

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

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

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

Consumer Protection Case Law

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

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

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

The Case for Tanning Litigation in Massachusetts

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

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

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

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

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

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

Conclusion

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

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

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

EXHIBITS

Exhibit 1: Sobella Salon Advertisement

 Tanning Litigation Exhibit 1 

Exhibit 2: The Tan Man Spa Facebook Update

Tanning Litigation Exhibit 2

Exhibit 3: The Tan Man Facebook Update

Tanning Litigation Exhibit 3

 

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

 


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

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

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

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

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

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

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

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

[9] See Id.

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

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

[13] Exhibit 1: Sobella Salon Advertisement.

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

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

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

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

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

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

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

[25] Id.

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

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

[28] Id.

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

[30] Id.

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

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

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

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

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

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

[37] Id.

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

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

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

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

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

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

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

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

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

[47] Id.

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

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

[50] Id.

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

[52] Id.

[53] Id.

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

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

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

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

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

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

 

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.

Health Law Case Brief: Alla Feygina v. Hallmark Health System, Inc., et al.

By: Kelly McGee, Esq.

 In Feygina v. Hallmark Health System, Inc., the Superior Court of Massachusetts granted the plantiff’s motion for summary judgment holding that a physician employee with a claim for unpaid wages was entitled to treble damages under the Massachusetts Wage Act, but not additional amounts for increased income tax liability or prejudgment interest.[1] The Court ultimately determined that the liquidated damages mandated by the Wage Act are compensatory, not punitive, in nature, and that the treble damages ordered fully compensate the physician employee for all harm caused by the employer’s refusal to pay.[2] In addition, the Court did not agree with the employer’s claim that it fell under the “hospital” exception to the Wage Act due to the employer’s affiliation with a hospital.[3]

Alla Feygina, M.D., was employed by Hallmark Health Medical Associates, Inc. (“HHMA”) and its predecessor from 1998 to December 31, 2010.  The parties entered into an employment agreement for the calendar year 2010 under which HHMA agreed to pay Dr. Feygina a base salary plus an incentive payment of 100% of excess revenue over expenses.[4]  HHMA paid Dr. Feygina the full amount of the base salary for 2010, but never paid the owed incentive compensation.  HHMA calculated the incentive compensation owed to Dr. Feygina and issued her a check for that amount minus deductions for taxes and other withholdings on September 23, 2011.[5] HHMA indicated in language in the cover letter and on the check stub that the payment represented satisfaction of any and all incentive compensation HHMA owed Dr. Feygina.[6]

On September 28, 2011, Dr. Feygina’s attorney wrote to HHMA’s counsel seeking clarification as to whether HHMA intended to make the payment subject to the condition that she accept it as full and final payment.[7] Dr. Feygina believed that the check did not represent the full amount owed her for incentive compensation in 2010, and HHMA later acknowledged receiving additional managed care payments for work performed by Dr. Feygina’s practice after sending the initial check.[8] Dr. Feygina’s attorney made the same inquiry in subsequent letters on December 8, 2011 and September 10, 2012, but never received a response from HHMA.[9]

The Court stated that it was undisputed that HHMA had a contractual obligation to pay Dr. Feygina $255,755.82 in incentive compensation for 2010.[10] HHMA asserted that it complied with part of its obligations by issuing a check in the amount of $167,399 to Dr. Feygina on September 23, 2011.  However, the Court held as a matter of law that “the tender of partial payment subject to the condition that it be accepted as a ‘full and final payment’…is not an effective tender.”[11]

Further, the incentive compensation owed to Dr. Feygina constituted “wages” under the Massachusetts Wage Act, and any damages paid to Dr. Feygina would be subject to the trebling provisions of the Wage Act.[12] The parties agreed that Dr. Feygina would be paid according to the compensation plan in the employment agreement, which set forth both Dr. Feygina’s base salary and her incentive compensation.[13] Thus both the base salary and the incentive compensation constituted “wages.”

HHMA contended that it should not be subject to the provisions of the Wage Act under the hospital exception, which states that the Act “shall not apply…to an employee of an incorporated hospital which provides treatment to patients free of charge, or which is conducted as a public charity….”[14]  The Court determined that although HHMA is affiliated with a hospital (Hallmark Health Systems, Inc.), HHMA is not an incorporated hospital and the exception does not apply.[15]

Finally, the Court held that while Dr. Feygina was entitled to treble damages as a matter of law, the treble damages in the Wage Act are compensatory in nature and “she is not entitled to recover any amount of consequential damages for increased federal income tax liability in addition to this amount.  That would give her an unfair windfall.”[16] Although most statutes that give trial judges’ discretion to award double or treble damages are meant to be punitive in nature, the treble damages provided for in the Wage Act are intended to be compensatory.[17] In 2008, the Massachusetts legislature amended § 150 of the Wage Act to specify that an award of mandatory treble damages will constitute “liquidated damages, for any lost wages and other benefits.”[18] The Court determined that the addition of this phrase makes clear that the mandatory award of treble damages is compensatory, not punitive.  As the First Circuit held in Matamoros v. Starbucks Corp., the statutory liquidated damages are not punitive, but instead “constitute compensation for the retention of a workman’s pay which might result in damages too obscure and difficult of proof for estimate other than by liquidated damages.”[19] Although HHMA’s breach resulted in a higher federal income tax liability for Dr. Feygina, the Court determined that the treble damages awarded to Dr. Feygina sufficiently compensated her for all direct damages, and she is not entitled to additional damages for increased tax liability or prejudgment interest.[20]  The Court did state, however, that Dr. Feygina may be entitled attorneys’ fees under the Wage Act and scheduled a hearing on Dr. Feygina’s request for attorneys’ fees, unless the parties reached a settlement prior to the hearing date.[21]

Kelly McGee, Esq. is an attorney in the Providence office of Donoghue, Barrett & Singal, P.C.  She is licensed to practice in Massachusetts, Rhode Island, and the District of Columbia, and is a Board member of the Rhode Island Women’s Bar Association.  Ms. McGee received her law degree from Boston College Law School.  She served as President of the law school’s Health Law Society and as the law school representative for the Health Law Section Steering Committee of the Boston Bar Association.


[1] 31 Mass. L. Rptr. No. 12, 279, 284-285 (August 5, 2013).

[2] Id. at 284.

[3] Id. at 282.

[4] Id. at 280.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 281.

[9] Id. at 280-81.

[10] Id.

[11] Id. at 281.

[12] Mass. Gen. Laws ch. 149, § 148.

[13] 31 Mass. L. Rptr. No. 12, 279, 282 (August 5, 2013).

[14] Mass. Gen. Laws ch. 149, § 148.

[15] 31 Mass. L. Rptr. No. 12, 279, 282 (August 5, 2013).

[16] Id. at 282-83.

[17] Id. (citing to Wiedmann v. Bradford Group, Inc., 444 Mass. 698, 710 (2009) and Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 178 (2000)).

[18] Id.; see also Mass. Gen. Laws ch. 148 § 150.

[19] 699 F.3d 129, 140 (1st Cir. 2012).

[20] 31 Mass. L. Rptr. No. 12, 279, 284 (August 5, 2013).

[21] Id. at 285.

BIDMC and the Boston Marathon Bombings

By Jamie Katz, Sr. VP and General Counsel, BIDMC

The first bomb went off at 2:49 pm on April 15, 2013, the second about twelve seconds later. The BIDMC Emergency Department received notice of the bombings within two minutes and the first patient arrived eleven minutes later. Within a short time, more than fifty BIDMC clinicians and staff came back to the hospital voluntarily to help out in a variety of departments. The first BIDMC patient went into surgery within forty seven minutes of the initial blast. Of the twenty four patients that BIDMC treated that day, fourteen went through the Operating Room by the end of the evening. Ultimately sixteen patients citywide received amputations, some of them double.

BIDMC began implementing its Emergency Operations plan within minutes after getting word of the blasts. Emergency Department staff erected a decontamination tent for the first patient who arrived in case any hazards were detected and all of the victims coming into the hospital received Geiger counter scans—staff knew nothing about the nature and scope of the bombings, about the attackers, or whether additional attacks might occur.

Within fifteen minutes of getting word of the bombings, staff set up a command center to allow BIDMC personnel to communicate clearly and quickly with hospital staff, as well as with federal, state, and city agencies. The command center gave us a better understanding of what was happening outside the hospital walls while also making sure we could keep track of what was going on inside.

At the outset, our clinical leaders had a series of tasks. They had to figure out how to manage the ED patients who were already there when the bombing victims started to arrive. Each one of our physicians, trainees, nurses, and other staff had to receive appropriate instructions on their deployment in the most effective manner. Clinicians had to ensure that there were sufficient Operating Room capacity and staff to support the Emergency Department, ORs, critical care units and clinical support services. Most importantly, the clinicians had to evaluate, identify, and transport the most seriously injured victims to ORs or Intensive Care Units as quickly as possible.

The vast majority of the 264 victims transported to hospitals that day went to the six Boston-area Level I Trauma centers. While three victims died at the scene of the bombing, remarkably, none of those who survived transport to hospitals did. In the end, while far too many were hurt far too badly, the situation could have resulted in much worse damage. Boston area hospitals, EMS, Public Health and law enforcement had practiced disaster drills so many people who responded were prepared for an emergency. Also, the bombs went off as shifts were changing in hospitals, meaning many people were still around to help. And ironically, the wars in Iraq and Afghanistan have yielded something positive back home—we know much better how to handle damage from bomb blasts.

Once the bombing victims became patients at BIDMC and other Boston area hospitals, all of the hospitals faced extraordinary circumstances and events. Many of the injuries, particularly the amputations, were complex and involved multiple system interventions within the patients. These were, after all, not planned and expected surgeries, but surgeries conducted on jagged open wounds, full of shrapnel, dirt and debris, and severely hemorrhaging, damaged limbs.

BIDMC caregivers also quickly recognized the deeper wounds that did not show on the surface. On the first night after the bombings, one of the surgeons in charge was rounding on the patients and stopped to talk with a young woman. He asked her how she was doing. “Okay here,” she said, pointing to her body. “Not so good here,” she said, pointing to her head. At first, he thought she was referring to a head wound. He quickly recognized, though, that she was referring to her own psychological state.

From that point on, our clinical leadership put a Mass Casualty service in place. Surgeons from different specialties joined with chaplains, social workers, physical therapists, occupational therapists, and psychiatric clinicians to see patients. These teams visited each patient daily to evaluate his or her condition and determine the next steps. This service follows them through their outpatient care.

Our clinicians worked hard to tend to the entire patient holistically and provide all of the dimensions of the care that our patients needed. For some patients, that meant shielding them from the large number of well-wishers that came to the hospital. A day or two after the bombings, Gov. Patrick came through the hospital in a welcome show of support for the victims and our caregivers. At the door to one of our patient’s room, the Governor appropriately asked one of our nurses if the patient in the room would be willing to talk with him. The nurse went in and talked to the patient, then came out and told the Governor that the patient would be happy to see him. As Gov. Patrick moved past, his entourage began to follow. The nurse put up her arms and said, “She said she’s willing to see the Governor.” The entourage stayed outside.

Even as our clinicians dealt with a surge in patients, our communications staff dealt with a flood of press inquiries and demands. We received well over a thousand inquiries from local newspapers to an Australian radio station, some seeking information and others seeking access to clinicians or victims. Our communications staff struggled to maintain control of the press—where individual reporters knew, or identified, BIDMC physicians, they contacted them directly, sometimes accomplishing an end-run around our communications staff. Once our Emergency Department chief appeared live on a 7 a.m. CBS news show, the requests for interviews escalated. This flood of press requests came in through phone calls, pagers, e-mail, text requests, and social media. Our communications department developed a triage system to handle the influx, but even that system did little to unburden our staff.

The press demands evolved and mutated daily. Some families had absolutely no interest in publicity and, over time, kept a tight cocoon around their loved ones in the hospital. Other individuals and families wanted different kinds of publicity, for different reasons. Those individuals and families worked with our communications staff in some instances, while others, worked with reporters they selected. They were, of course, perfectly within their rights to work with members of the press, but it made the work of our staff more complicated as they tried to sift through which patients wanted what, and how to keep appropriate information private.Reporters, of course, did not always follow the guidelines established for them. Some reporters got in and went from door to door or office to office, seeking people to talk to. One national network called to request access for a reporter to speak to victims in the hospital. Our communications people explained that no reporters were allowed to meet with victims yet. A short time after that, one of the network’s reporters was escorted out of the building after having gotten close to entering a victim’s room.

Meanwhile, well meaning movie stars, television celebrities, motivational speakers, politicians, and other dignitaries requested visits to the victims in the hospital. In almost all cases, those requests were turned down at the request of patients.

Beyond the traditional press, social media proved a significant benefit for BIDMC. We were able to use our website and Facebook pages to let patients know that the hospital was open amidst the difficulties following the bombings. We were able to tell people how to find out about appointments on Facebook, or to give warnings of parking problems or other issues on our website.

In the first few days after the bombings, BIDMC shared a common experience with other Boston hospitals as we all struggled to provide appropriate care to patients and families and to manage the press. On Thursday, April 18, however, BIDMC began a journey down a different path.

On that Thursday night, the first suspect, Tamarlan Tsarnaev, was transported to BIDMC where he was declared dead shortly after arriving. On Friday night, the second suspect, Dzohkar Tsarnaev, was brought to BIDMC following his capture. His arrival changed the landscape dramatically.

Immediately upon the Tsarnaev’s arrival, security concerns became paramount. Would anyone take action against the hospital while he was there, or try to get him out? For BIDMC, the questions were more complicated because we have two campuses. Tsarnaev was on the West Campus. If we moved most of our security to the West Campus, did we endanger the East? Meanwhile, we had the families of victims still in the hospital—we did not expect they would all be comfortable with the alleged bomber being treated at the hospital. Very quickly, BIDMC security personnel worked with the FBI, ATF, State Police, Boston Police, Watertown, and Transit Police to provide security at multiple sites. Happily, within a couple of days of Tsarnaev’s arrival, we determined we could loosen security at most sites, except for the building where he was treated.

The arrival of Tsarnaev also meant that some of the impacts we had seen earlier in the week became even more pronounced. The press demands went back up. And the full impact of social media quickly became obvious.
The press worked hard to get information not just about the victims from that point on, but about Tsarnaev. Our security personnel regularly cleared press photographers from the roofs of several parking garages, where photographers with telephoto lenses sought to get pictures of Tsarnaev while he lay in the hospital. And one newspaper offered a BIDMC employee $5,000 for a picture of Tsarnaev in the hospital.

Pictures, indeed, posed the first major test for me. By Saturday, April 20, when I went into the hospital, pictures of the two suspects in or around the hospital had started showing up on the Internet. Because the release of the photos represented potential breaches of privacy as well as violations of hospital policy, we had to try to track down the origin of the photos in the face of our enormous clinical and administrative demands.

The first photo that came to our attention was of the first suspect, Tamarlan Tsarnaev, after he had died in the hospital. It sped around the web and supposedly was put on the front page of a small newspaper. No major newspaper would run it, because it was never corroborated. The photo was taken in a room within the hospital—but one that, as soon as Tamarlan Tsarnaev was brought in, went under the full control of federal authorities. Federal agents and Boston Police were in the room and no hospital personnel were allowed in the room without express authorization. Given the characteristics of the photo and the picture it conveyed, it quickly became clear to both federal authorities and BIDMC leadership that the photo was taken on a cell phone by someone in law enforcement.
A second cell phone photo circulated on the web, but we quickly determined that it showed the second suspect, the younger Tsarnaev, in an ambulance. The photo may have exhibited bad taste and bad judgment, but the photo did not come from within BIDMC so we did not pursue the photographer.

The last photograph became the most problematic. It depicted the younger Tsarnaev within the hospital, after his surgeries on his first night in the hospital. Again, the photo’s resolution suggested it was a cell phone photo. In this case, both law enforcement and hospital personnel were present where the photo was taken, on and off for a period. The area was controlled by the federal agents but numerous BIDMC clinicians had come through the unit in the course of providing care to Tsarnaev. As a result, I interviewed those hospital personnel who had been involved when it appeared the photo was taken. Federal agents also conducted some inquiries. In the end, the federal authorities believed that the photo was taken by a hospital employee, and we believe it was taken by a member of law enforcement—in the end, we will never know whose phone it came from.

Just as the press and photos became more problematic, the impact of social media became far more profound. Once Tsarnaev was in the hospital, BIDMC staff could not release any information about him, including his medical condition, without consulting with federal officials. As we started receiving endless press and public inquiries about his status, we conferred with federal officials, and the FBI subsequently sent out tweets on the FBI/DOJ Twitter account that announced Tsarnaev’s medical condition.

Meanwhile, Facebook became a forum for some of our clinicians to vent. Upon Tsarnaev’s arrival in the ED at BIDMC, some of those treating him or in close proximity to him became quite unhappy about his presence. A number of clinicians made derogatory statements about the patient and BIDMC’s role in treating him, with some of their co-workers indicating “Likes” of those posts and other BIDMC readers becoming very unhappy, arguing that BIDMC caregivers had an obligation to treat all patients to the best of their ability. Certain managers brought Facebook posts to my attention, feeling strongly that the posts were disruptive to their unit and inappropriate for BIDMC employees. We did review a number of Facebook pages, but only for inappropriately revealed private information about Tsarnaev or other patients. While I and another lawyer reviewed some tasteless and offensive posts, as long as they consisted solely of opinions and did not inappropriately reveal private information, we took no action against the writers.

The most dramatic social media event occurred a few days after Tsarnaev came into the hospital. I received a call late one night—the BIDMC website had been flooded by messages about Tsarnaev. The messages, though, were most unexpected.

“God is with you Djokhar, we pray for you . . . We stand for Justice”

“Praying for Dzhokahar, like for my brother. Pliiz take care of him! Czhokhar, we all r with you. . . “

“If we write to him will you deliver the letters?”

“DZHOKHAR TSARNAEV IS INNOCENT, INNOCENT, INNOCENT!!!!!!! FREE DZHOHKHAR!!!!”

“dzhokar is innocent . . please take good care of him. He is a great man dzhokar we love you . . .”

“Sending all my love to Dzhokhar and his family.”

The sudden influx of supporting e-mails made it clear that there was a concerted effort to overwhelm our website with these messages. We had messages about the victims falling next to messages about freeing Tsarnaev. For the next few days, we had to regularly spend time and effort cleaning the site of similar messages. Ultimately a court, not BIDMC, will determine Tsarnaev’s guilt or innocence. As distasteful as some of the messages were, they certainly might fit somewhere in cyberspace—just not in an attack aimed at taking down our website or making it wholly offensive to many of our Facebook users, including employees and patients.

We are now six months past the bombings. We have tried to absorb some of the lessons from the experience. Preparation, training, and drilling to prepare for a disaster are critical. Making sure our leaders and teams communicate, and work smoothly together are also important—which also requires that people know, very quickly, what their roles are and will be. The importance of clear communications both internally and with outside agencies cannot be overstated. And neither can the risk from camera phones.

There is another cautionary note to add. The “Boston Strong” mantra certainly has a strong foundation based on how the first responders, healthcare providers, law enforcement community all reacted to the bombings, coupled with the enormous amount of public support the victims received. That phrase, however, while it fits what happened in the post-bombing period, should not mask some on-going difficulties.

In particular, we should not fool ourselves into believing that all is well for many of those most affected by the bombings. Some of our caregivers are still struggling. They lived through what was comparable to a war zone. Some of them still feel guilt, feeling they should have done more. Some of them are still haunted by the extent of the injuries and damage they saw. And some of them struggle with the care they provided for Dzohkar Tsarnaev, feeling they did the right thing professionally but fearing that many of their friends and neighbors would judge them harshly for doing what they did. And many of the victims, particularly those with amputations, still have long, difficult recovery periods ahead of them. Their worlds changed in an instant and they now face life with pain, difficulties, and sometimes financial burdens that they never imagined. Their medical care, while dramatically better than in times past, is still fragmented and some of them will bounce from doctor’s office to hospital to physical therapist to mental health provider, with no single entity providing care coordination. So while we can all use Boston Strong as a symbol of pride, the slogan should not become a burden or a standard that caregivers or victims feel they have to live up to.

Finally, I will leave you with one lasting image from last spring. On the Saturday just after Tsarnaev became a patient at BIDMC, I went to the hospital and walked to the building where he was being treated for a meeting. As I approached the building, I saw a group of eight or so people to my right who were entering an adjacent building. Something about the group seemed out of the ordinary, so I took a second, longer look. The group of men all wore red tee shirts that read Semper Fi Fund. Each one had lost a limb—some arms, some legs. They were all veterans of Iraq and Afghanistan, on their way to visit some of the victims in our hospital to support them and give them tangible evidence that a good life could follow even after an amputation.

With that image still fresh in my mind, I went through multiple gauntlets of security, up to the SICU where Tsarnaev was being treated. When I entered that area, a number of physicians and nurses huddled around him, talking and adjusting things on and around him. The clinicians treated him while they were surrounded by federal agents and police officers.

I was struck by the simultaneous presence, in our hospital, of men who fought and suffered grievous injuries from hostile soldiers and IEDs overseas in order to protect Americans from terrorist activities, as well as a suspected terrorist who was ultimately charged with inflicting similar damage on the victims in our hospital. And despite the enormity of the charges against Tsarnaev, and the carnage he may have participated in, our doctors and nurses did what they did best and what they were supposed to do—they treated him to the best of their ability, giving the same kind of care they would have given to anyone.

Boston, and too many people, lived through a wrenching, difficult, tragic event, but what our caregivers did during that time—for victims and the second suspect alike—spoke to our deep, enduring commitment to care for our patients first, whoever they are, wherever they come from. The emotions inspired by the Marathon bombings were undoubtedly powerful and complicated for many individuals. What BIDMC accomplished is not so complicated—we took care of people, very disparate people, with exemplary care under very difficult circumstances.

 

Jamie W. Katz is the General Counsel and a Senior Vice President for Beth Israel Deaconess Medical Center in Boston, Massachusetts.  He had previously served as the Interim Chief Compliance Officer and Deputy General Counsel at BIDMC.  Before joining BIDMC, Mr. Katz was the General Counsel for the Commonwealth Health Insurance Connector Authority between 2006 (the inception of the Connector Authority) and October, 2010.  In that role, Mr. Katz was the chief legal adviser to the Connector Authority, the first state entity dedicated to implementing healthcare reform.  Prior to joining the Connector, Mr. Katz served as the Chief of the Public Charities Division of the Attorney General’s Office.  Mr. Katz also served as an Assistant Attorney General in the Attorney General’s Administrative Law Division and as an enforcement attorney for the U.S. Environmental Protection Agency.  He also was an associate at Hale & Dorr and a founding partner of a small Boston law firm.  Mr. Katz has extensive healthcare, insurance, trial, and appellate experience, and he has acted as a mediator and arbitrator in numerous matters.  Mr. Katz has presented at numerous national and local conferences and seminars.  He graduated from Harvard College and the University of Virginia Law School.  He has written professional articles in the areas of healthcare, charities, environmental law, and disabilities law.  Mr. Katz is also the author of numerous non-fiction pieces published in newspapers and magazines as well as two novels published by major publishers, Dead Low Tide (finalist for a Shamus Best First Mystery award) and A Summer for Dying.

The Massachusetts Healthcare Information Exchange – An Inside Look at the Policy and Technology

Introduction:

In December of 2011, John Halamka’s wife visited a suburban community hospital for a diagnostic mammogram.   The study was highly suggestive of a tumor and she wanted to follow-up with a treatment team of oncologists, surgeons, and radiation oncologists at a downtown academic medical center.   She was told that there is an information superhighway in Massachusetts – the Mass Pike.   For 25 cents a page she could get a copy of her medical records on paper and then drive them into Boston.

In September of 2012, John’s mother broke her hip and because the hospital had no access to her outpatient records, she was placed on 22 different medications based on pill bottles John’s father collected.   She takes only 2 medications, which are clearly documented in her primary care physician’s electronic health records.

Both of these scenarios illustrate that we do not have a healthcare system in the United States.  Rather, we have a disconnected set of information silos – hospitals, clinics, labs, and pharmacies – that lead to redundant, unnecessary and error prone care.

But there is hope.

On October 16, 2012 at 11:35am Governor Deval Patrick officially “flipped the switch” on the Massachusetts state Healthcare Information Exchange, called the HIWay, enabling electronic records to be sent from provider to provider  throughout the Commonwealth with patient consent.

This event, held in the Ether Dome of the Massachusetts General Hospital, was the culmination of years of hard work by many stakeholders and experts in the Commonwealth.   Here is their story.

Historical Efforts:

In 1995, Massachusetts stakeholders convened through the Massachusetts Health Data Consortium (MHDC) to found the Chief Information Officer (CIO) Forum. The CIOs from payers, providers, and employer groups, agreed to meet on a monthly basis to discuss the use of IT to streamline health care commerce, reduce costs, and enhance care delivery processes. Early work included common privacy/security guidelines, common data sets for describing clinical encounters, and early discussions of how organizations could collectively address HIPAA compliance issues as a region rather than a series of disjoined efforts.

In 1997, at an MHDC-sponsored security conference, several CIOs of the payers and providers of Massachusetts gathered at dinner to discuss the creation of a network for the exchange of claims, referrals, and benefits/eligibility transactions in Massachusetts. The group named the effort the New England Healthcare Electronic Data Interchange Network or NEHEN.

Three provider organizations (Partners Healthcare, CareGroup, and Lifespan) and two payer organizations (Tufts Health Plan and Harvard Pilgrim Health Care) worked together to formally create NEHEN LLC as an independent organization. Computer Sciences Corporation (CSC) was hired to manage a region-wide administrative data exchange effort, and by October 1998, with prior patient consent, eligibility data began flowing among these early NEHEN members. Boston Medical Center joined in December 1999. University of Massachusetts Memorial and Boston Children’s Hospital joined in February 2000. As of 2012, more than 100 million administrative health care transactions in Massachusetts flow over the collaborative NEHEN network annually.

This early work on transaction exchange built trust among the CIOs and established a business model that all could understand — cost avoidance. Before NEHEN, administrative transactions such as claims cost $5.00 each in labor to submit via paper, fax, phone and e-mail. After NEHEN, these transactions could be exchanged electronically for pennies apiece. The payers and providers in the Commonwealth recognized that IT collaboration reduced costs for everyone.

Over the past 5 years, NEHEN added e-prescribing and clinical data exchange functionality, enabling data to flow among more than 60 institutions in the commonwealth.

Over the same time period, advances in technology and incentives from the American Recovery and Reinvestment Act funded Meaningful Use stimulus program encouraged practices of all sizes to install electronic health records.    NEHEN was optimized for larger organizations with significant IT resources and was generally perceived as too expensive for small practices and providers in the rural parts of the Commonwealth.    Additionally, State government was not involved with NEHEN as officials feared conflicts of interest while serving as a board member of a private multi-stakeholder organization.  NEHEN needed to evolve into a state-wide, low cost, government engaged model.

Creating the Massachusetts HIWay:

In September of 2011, the Secretary of Health and Human Services Dr. JudyAnn Bigby created the HIE-HIT Advisory Committee as a mechanism to channel advice and recommendations to the HIT Council, the healthcare information technology governance body established by Chapter 305 of the Acts of 2008. Comprising 24 public and private sector experts from a broad range of perspectives, and 92 individuals in its working groups, the Advisory Committee has provided substantive advice to the HIT Council in a wide variety of areas, including architecture, phasing, technical specifications, consumer priorities and concerns, provider adoption, financing of the statewide HIE, and legal/policy considerations.

The 5 working groups were as follows:

•     Consumer & Public Engagement Work Group – To raise awareness of the HIT-HIE program among consumers, to engage consumers in the program, and to ensure that consumer input is considered for all critical recommendations and Advisory Committee decisions.

•     Provider Engagement & Adoption Work Group – To raise awareness of the HIT-HIE program among providers, to encourage adoption of HIT-HIE among providers, and to ensure that provider input is considered for all critical recommendations and Advisory Committee decisions.

•     Technology & Implementation Work Group – To plan and develop technical and operational requirements and approaches for statewide HIE activity conducted through publicly-funded or -supported programs. To develop strategies, standards, and requirements for an enhanced statewide HIE architecture that leverages existing networks, shared services, and standardized regional services to enable broad adoption and use of statewide HIE services

•     Finance & Sustainability Work Group – To recommend financing and business models for implementing and sustaining statewide HIE infrastructure and services.

•     Legal & Policy Work Group – To plan and develop a governance model and legal and policy framework for statewide HIE activity conducted through publicly-funded or -supported programs.

Many people put in many hours in September 2011 to engage stakeholders, create a unified statewide HIE plan, suggest a funding model, define requirements, and broadly communicate the strategy.

In October of 2011, three of us that had worked with these early efforts – Manu Tandon (the CIO of the Executive Office of Health and Human Services), Micky Tripathi (the CEO of the Massachusetts eHeath Collaborative), and John Halamka (CIO of Beth Israel Deaconess Medical Center) visited CMS to discuss a powerful idea.   We proposed a single state operated infrastructure connecting all payers, providers, and patients using national standards at low cost.    In Massachusetts, where 100% of the hospitals serve Medicaid patients and   80% of the ambulatory providers serve Medicaid patients, development of this infrastructure could be a game-changer.   Medicaid 90/10 matching funds could be applied for the first time to the construction of a statewide health information exchange.   The state would contribute $5 million and Medicaid would match it with $45 million to create an infrastructure that all stakeholders could use.  The private sector would pay its fair share and every stakeholder would pay a subscription fee that related to the value they derived from healthcare information exchange and their ability to pay.

CMS was impressed by the core elements of the proposed strategy that included:

•     Three-phase HIE plan beginning with creating the statewide Information Highway as a foundation for richer applications and services from 2012-2014.

•     Alignment with national interoperability standards and emerging Meaningful Use (MU) stage 2 requirements[1]

•     Maximization of Medicaid SMHP/Medicaid Management Information System (MMIS) 90/10 Federal Finance Participation (FFP) funding

In January of 2012, CMS approved the funding and work began on the Requests for Proposal to support an open, transparent, competitive bidding process for vendors to provide the products and services needed by the HIE.

The Plan:

The three phase plan was based on stakeholder requirements, the maturity of available technology, and the likelihood that the needed policies would be supported by payers and providers.

The first phase leverages existing workflow and processes used to release medical records today.  In a paper-based healthcare world, patients request/consent that their information be disclosed to another party and then the information is sent (we use the term “pushed” to another organization).   Information would continue to be “pushed” from one organization to another, but we would replace all these paper flows with secure, fully electronic ones. Such a workflow supports coordination of care between primary care givers and specialists; hospitals and primary givers; providers and payers.

The second phase uses this new “push” technology to send data from provider offices and hospitals to registries and data warehouses for quality measurement and population health analytics.

The third phase envisions a solution for the “unconscious in the Emergency Department” problem.  You arrive in the Emergency Department with only a wallet and no ability to communicate.  Using only your name, gender, and date of birth, information from clinician offices and hospitals where you have previously consented to disclose your data make that information available to the emergency physician.

The Technology:

These three phases require an array of technology components and policies.   For the first phase, we implemented 5 components.

  1. A transmission gateway – just like email, a server is needed to send and receive pushed data between organizations.  As part of the Federal stimulus program for electronic health records, a set of standards for exchange of data, called Direct, is required.   We needed to create appropriate hardware and software to support the state’s efforts to enable secure transmission between EHRs.
  2. A provider directory – just as email has an address book, we needed an address book of every provider organization in the Commonwealth and its members.
  3. Certificate management – to send data securely between organizations, there needs to be appropriate encryption over the wire.   Digital certificates enable us to prove the provenance of the sender and ensure only the rightful recipient organization can unencrypt the message.
  4. Skilled nursing facility/long term care interfaces – we received a grant to accelerate adoption of data sharing in post-acute facilities that often do not have an EHR.
  5. Webmail – for those organizations without EHRs, we needed a method of sending and receiving secure messages.  A secure webmail portal meets those requirements.

All of these were competitively bid and procured from a single vendor (Orion) and then, implemented over the Summer of 2012.

In 2014, we will complete a statewide consent repository.  Each institution will record opt-in consent for disclosure of that institution’s data and that consent will be forwarded to a statewide registry, which will store patients’ consent preferences.  At any time a patient may opt-out of disclosing data from an institution.  To support stored consent function, we will need a secure, statewide citizen index.  We will also need this index to support patient-matching of medical records across organizations.  For other phases in the future, we will need other additional components.

The Policies:

Before we could send patient identified data between organizations over this infrastructure, we needed policies to delineate roles/responsibilities, support business associate agreements, and ensure patient consent is obtained and patient privacy preferences are respected.

We assigned roles and responsibilities as follows:

  • Executive Office of Health and Human Services (EOHHS) – provides the infrastructure, the overall project governance, and manages the participation agreements/business associate agreements.   A new HIT Council, as enumerated in the Healthcare Cost Containment Bill (Chapter 224 of the Acts of 2012), will serve as the ongoing governance body.   Advisory workgroups will continue to engage community and other stakeholders to provide input to the HIT Council.
  • Massachusetts eHealth Institute (MeHI) provides the connections from EHRs to the state HIE via its “last mile” program, which offers grants to vendors to develop interfaces, incentives to providers to implement connectivity to the HIE, and community-based collaborative working groups to encourage adoption that fits the needs of the local healthcare community..
  • Massachusetts eHealth Collaborative – provide Last Mile Management Office support to MeHI and facilitation support to other stakeholders and agencies.  Part of that facilitation included running the 5 HIT Council Work Groups that suggested initial policies and procedures.

EOHHS created a single participation agreement that included business associate language.   Each stakeholder that wants to use the state HIE must first sign this common participation agreement.   The Participation Agreement defines key aspects of roles and responsibilities of EOHHS and participants, especially those relating to maintaining patient privacy and technical data security, including audits and investigations of suspected incidents or breaches.

Highlights of this Phase 1 (pushing of information only) Participation Agreement include:

  • Permitted Users and Uses: Initial participation is open to Massachusetts-licensed providers and entities, Massachusetts-licensed health plans, Commonwealth agencies, and certain employees and agents of the foregoing who are authorized as users. Use of the Massachusetts HIWay is limited to exchanges of information that are allowed by law and that are related to treatment, payment, or healthcare operations as defined by HIPAA. EOHHS may, if it determines, in its sole discretion that such actions are in the public interest:
    • allow additional participants and/or authorized users;
    • allow additional uses;
    • deny or suspend participation, or use, for any organization or individual
  • Delegated Authority:  Each Participant must execute a Delegated Administration Agreement before being granted access to the Massachusetts HIWay.  Each Participant must identify at least one individual to serve as an Access Administrator, as provided in the Delegated Administration Agreement.  Each Participant’s Access Administrator is responsible for administration of the Participant’s Authorized Users and must sign the Access Administrator Agreement.
  • Patient Privacy and Consent:  Each Participant is responsible for obtaining any and all necessary patient consents and authorizations relating to the use and exchange of patient information, including without limitation consent to release HIV test results, genetic test information, substance abuse information, and as otherwise required by law.  In addition, the Participant and/or the Authorized User is responsible for obtaining patient permission to share patient information over the Massachusetts HIWay.  It is the responsibility of the Participant to maintain these consents and permissions as required by law and their policies. The method by which the Participant maintains the consents will be determined by the Participant but proof of consent may be subject to audit by EOHHS.

As noted above, standard practice is that health records are only disclosed from one organization to another when the patient has signed his or her written consent to such a release.  We adopted the same approval to disclose (oral, written) that is in place in healthcare workflows today.   All that changes is that phone, fax, email, and paper is replaced by secure electronic transmission.

The end result of obtaining common participation agreements among all the providers in the Commonwealth over a single secure infrastructure governed by the underlying principle of achieving patient consent to disclose before transmission creates a fabric of trust that protects patient privacy.

Acquiring Customers:

With policies in place and technologies under construction, we could begin acquiring customers.  In the Summer of 2012 the Advisory Committee supported efforts to recruit and prepare early adopters to go live with the statewide HIE on its launch date or “Golden Spike” event. A large number of early adopter organizations have come forward to participate including Atrius Healthcare, Baystate Healthcare, Beth Israel Deaconess Medical Center, Boston Children’s Hospital, Greg Harris MD, Holyoke Medical Center, Network Health Plan, Partners, Tufts Medical Center, and Vanguard Health Systems representing a significant portion the Commonwealth’s active providers.

The “Golden Spike Group” began meeting in August to review, react to, and help refine the statewide HIE participation agreements, pricing, and technical interfacing requirements.

The Go Live:

In front of the press and leaders of Massachusetts, I accessed my wife’s actual hospital records, with her consent, and sent them electronically to her actual doctor’s office, a payer, a private primary care provider affiliated with another hospital, and the Massachusetts eHealth Collaborative (a quality measurement and analytics service provider).  We broke down silos, demonstrating that care coordination, population health, and quality analytics based on healthcare information exchange is now possible in Massachusetts.  The electronic records involved included an institution’s home-grown electronic medical record, eClincialWorks, a custom payer system, and self built analytic applications.

Other transactions followed.

With patient consent, Tufts New England Medical Center sent patient-identified summaries to and received summaries from Vanguard Health Systems New England illustrating a primary care physician-to-specialist closed loop workflow.  EHRs included Siemens Soarian and Meditech.

Also with patient consent, Boston Children’s sent pediatric patient-identified summaries to Atrius Healthcare, a multi-specialty group, illustrating tertiary hospital-to-primary care giver coordination.

All were successful and were documented in real time on the Twitter stream.

The Governor distributed golden spikes made from actual railroad spikes salvaged from rail near Promontory Point, Utah, the site of the original transcontinental railroad connection.

Conclusion:

Just as the original Golden Spike in 1869 issued in a new era of connectedness, so does the Massachusetts healthcare information exchange change business as usual in Massachusetts. Over the next year, we will be building new “bridges,” ensuring that every payer, provider, and payer can send transition of care summaries with patient consent.

This achievement, although conceived in Fall of 2011 and completed in the Fall of 2012, builds upon over 15 years of trust building, early experiences with healthcare information exchange, and an array of public/private investments along the way.

Simple policies – a common participation agreement and consent to disclose complemented by simple technologies – gateways that support secure transmission, a provider directory, and a digital certificate infrastructure, funded by both Medicaid funds and private sector contributions, make the Massachusetts a first-in- the-country model for the rest of the U.S.   We look forward to breaking down healthcare information silos over the coming months.  Never again will issues such as those which affected John’s wife and mother be caused by the lack of healthcare information superhighway in Massachusetts.

AUTHORS:

John D. Halamka MD, CIO Beth Israel Deaconess Medical Center

Manu Tandon, CIO EOHHS

Micky Tripathi, CEO, Massachusetts eHealth Collaborative

Laurance Stuntz, Director, Massachusetts eHealth Institute


[1] Medicare and Medicaid Programs; Electronic Health Record Incentive Program—Stage 2, 77 Fed. Reg. 53,968 (September 4, 2012).

HIPAA Enforcement Trends: Growing Civil Enforcement

By Cassandra H. Arriaza and Sarah W. Walsh

The stakes are higher than ever before for HIPAA compliance.  Enforcement of the Health Insurance Portability and Accountability Act (“HIPAA”) is spread throughout numerous government bodies at the state and federal levels, leaving covered entities vulnerable to a wide scope of investigatory and enforcement actions.  Each of these enforcement authorities brings a different approach and different focus to their HIPAA efforts:

  • The Office for Civil Rights in the Department of Health and Human Services (“OCR”) can impose civil monetary penalties for HIPAA violations;
  • State attorneys general can initiate civil proceedings for injunctive relief on behalf of a state’s citizens; and
  • The Department of Justice (“DOJ”) can investigate and treat certain HIPAA violations as criminal offenses.

The differing remedies and corresponding approaches taken by these government bodies complicate the enforcement landscape, particularly with the recent addition of state enforcement.  With increasing enforcement by state attorneys general and increasing penalties levied by OCR, HIPAA compliance has become the focus of investigations – no longer merely a backdrop to enforcement investigations.

State Attorneys General Join HIPAA Enforcement Landscape Through Civil Enforcement

State attorneys general have most recently entered the enforcement landscape, having only been given authority to pursue civil actions starting in 2009.  Although it is still early to determine how state attorneys general will pursue enforcement, training on HIPAA enforcement offered by OCR for state attorneys general offers some insight.  This training program, which was held in four different locations in 2011, was attended by representatives from 45 States and territories and the District of Columbia.  Many of the modules focused on background information about HIPAA and the relationship between OCR and state attorneys general.  For example, the training explained that pending federal actions take priority over state actions and OCR has a right to be heard in all matters that a state may file regarding HIPAA enforcement.[1]

Most interesting was OCR’s suggestions to state attorneys general about how they may uncover potential HIPAA violations.  Some of these methods are similar to those approaches that OCR itself takes—monitoring news outlets, breach reports filed by covered entities, receiving direct complaints, referrals from other agencies.[2] However, OCR also suggested that states may learn of potential violations from whistleblowers or as a part of—or by revisiting—other types of investigations, such as health care fraud, labor and employment cases, or any case that involves health care access and licensure.[3] Thus, in addition to investigating HIPAA problems that are likely already known to the covered entity—perhaps through breach reports or a patient complaint—state attorneys general may also use the threat of HIPAA civil penalties as additional leverage in broader—or even ongoing but unrelated—investigations of covered entities.

New England Takes the Lead in HIPAA Civil Enforcement Actions

Massachusetts followed Connecticut and Vermont as the third state to pursue HIPAA enforcement actions.[4] The Massachusetts investigation followed a data breach that was reported to the Massachusetts Attorney General in July 2010.  After receiving a breach report from South Shore Hospital, the Massachusetts Attorney General’s office launched an investigation into the hospital’s practices in handling protected health information.  It was determined that the hospital had shipped three boxes containing 473 unencrypted back-up computer tapes to a third-party to be erased and resold, never having informed the third-party that Protected Health Information (“PHI”) was on the disks.  Only one of the three boxes arrived at its destination.  In May 2012, South Shore Hospital ultimately agreed to pay $750,000 to settle the data breach allegations.  In addition, the hospital agreed to take a variety of steps to ensure compliance with HIPAA and agreed to undergo a review and audit of certain security measures.[5]

More recently, on January 7, 2013, the Massachusetts Attorney General reached a settlement with Goldthwait Associates and four pathology groups.  Goldthwait Associates, a medical billing practice, improperly disposed of PHI from those four pathology groups, affecting more than 67,000 residents.  This first came to the public’s attention in July 2010 when a Boston Globe photographer, who was disposing of his own trash at the Georgetown Transfer Station, observed a large pile of papers, which he determined were medical records.  The Massachusetts Attorney General alleged that the four pathology groups violated HIPAA by failing to have appropriate safeguards in place to protect the PHI and by failing to take reasonable steps to select and retain a service provider that would maintain appropriate security measures to protect PHI.  As part of the settlement, all five entities collectively agreed to pay $140,000 in civil penalties, attorney fees, and “a data protection fund to support efforts to improve the security and privacy of sensitive health and financial information in Massachusetts.”[6]

With Massachusetts at the forefront of state-based HIPAA enforcement, covered entities can expect that Massachusetts will continue to look for and bring additional HIPAA  enforcement actions.  Indeed, recent activity from the Massachusetts Attorney General underscores the intent to continue to pursue HIPAA violations.  The Massachusetts Attorney General’s Office and the Massachusetts Medical Society held a “first-of-its-kind data privacy training” in October 2012 and January 2013.  Additionally, the most recent HIPAA settlement from the Massachusetts Attorney General’s Office also include a contribution to a data protection fund.[7] All of this points to increased HIPAA enforcement on the horizon in Massachusetts.

Monetary Fines Serve As New Enforcement Tool but Improved Compliance Remains the Focus for OCR

OCR also has been stepping up enforcement after it obtained authority to impose civil monetary penalties (“CMPs”) in 2009, but OCR’s focus remains largely on educating covered entities in proper procedures to prevent HIPAA violations, reserving monetary fines for the most serious of violations.  Indeed, in 2011, OCR implemented a new audit system that ran through December 2012 to proactively review compliance with HIPAA.[8] Although OCR describes these audits as a “compliance improvement tool” that will be used to determine what types of assistance OCR should develop, OCR has noted that in certain cases, it may elect to open a compliance review as a result of an audit.[9] The future of the audit program will be shaped by evaluation and reports from the first year of audits.

The new audit process is just one of the ways in which OCR obtains information that can lead to an investigation.  Other, more typical, sources of information that could result in the start of an OCR investigation include complaints from the public, breach reports filed by covered entities, and privacy and security incidents reported by the media or government agencies.[10]

Two out of three cases investigated by OCR since 2003 have identified a violation and required the covered entity to make changes in privacy and security policies and practices.[11] A majority of those cases have been resolved without CMPs, relying instead on voluntary agreements by the covered entity to take steps required by OCR, which might include revising or developing policies and procedures, training or retraining staff, or sanctioning members of the entity’s workforce.[12] If needed, OCR may even provide “technical assistance” to help the covered entity make the required changes.  For example, OCR resolved a complaint of a physician not providing a patient with a medical record by explaining to the physician that nonpayment for services does not permit a covered entity to withhold access to medical records.  After OCR gave that explanation—its “technical assistance”—the physician provided the patient with a copy of the medical record, and this voluntary compliance resolved OCR’s investigation.[13]

Increasingly, OCR does not resolve the violation through education and voluntary compliance alone but instead obtains a resolution agreement.  Under a resolution agreement, a covered entity enters into a contract with OCR to settle potential violations and implement a corrective action plan.  These agreements often include a monetary settlement as well as a period of monitoring or reporting to OCR.[14] From 2008 through mid-January 2013, OCR has entered into eleven resolution agreements, with five of those occurring in 2012 alone.[15]

These increasingly frequent resolution agreements can involve significant monetary settlements.  In September 2012, Massachusetts Eye and Ear Infirmary and Massachusetts Eye and Ear Associates (collectively, “MEEI”) paid $1.5 million as part of a resolution agreement.  Following a breach report filed by MEEI in 2010 related to the theft of an unencrypted laptop containing PHI, OCR conducted an investigation and concluded that MEEI failed to take certain security steps, particularly relating to the use of portable devices to store confidential protected health information.  In addition to paying $1.5 million, MEEI also agreed to a corrective action plan that includes reviewing, revising, and maintaining policies related to the HIPAA Security Rule.  MEEI also agreed to have an independent monitor conduct assessments of its compliance with the corrective action plan; the monitor will issue semi-annual reports to OCR for three years.[16] As can be seen with MEEI’s resolution agreement, these agreements not only can be costly but also can have long-term consequences as entities take on additional reporting requirements for a period of time after entering into the resolution agreement.

MEEI’s case follows the February 2011 resolution agreement OCR entered into with Massachusetts General Hospital (“MGH”).  The resolution agreement come about as a result of a March 2009 incident where an MGH employee inadvertently left documents containing the PHI of 192 patients on the subway while commuting to work.  OCR learned of the breach when an affected patient reported it.  OCR’s investigation concluded that MGH failed to take reasonable and appropriate safeguards to protect PHI taken from MGH’s premises.  In addition to paying one million dollars as part of the resolution agreement, MGH also agreed to a corrective action plan that required, among other things, the Director of Internal Audit Services of Partners HealthCare Systems to serve as an internal monitor to conduct assessments of MGH’s compliance with the corrective action plan and send semi-annual reports to OCR.[17]

Although Massachusetts-based companies so far have been able to resolve violations through resolution agreements, OCR does have another tool available to address HIPAA violations.  When a covered entity refuses to take action to resolve the matter in a manner satisfactory to OCR, OCR will seek CMPs but must first obtain authorization from the U.S. Attorney General.[18] OCR’s first and only CMP to date issued to Cignet Health of Prince George’s County, Maryland (“Cignet”) in 2011.  OCR’s investigation into Cignet began when Cignet denied 41 patients access to their requested medical records over a one-year period and each of those patients filed a complaint with OCR.  Cignet refused to cooperate with OCR’s investigation, requiring OCR to obtain a subpoena to acquire the medical records.  Remarkably, Cignet failed to respond to the subpoena, and OCR obtained a default judgment against Cignet to enforce that subpoena.  OCR determined that Cignet’s failure to cooperate with the investigation was due to Cignet’s willful neglect to comply with HIPAA.  As a result, OCR imposed a $4.3 million CMP for Cignet’s violations.[19] Because CMP penalties increase with the knowledge of the entity—with the lowest penalties for violations where the entity lacked knowledge and the highest penalties for violations caused by willful neglect that were not corrected[20]—CMP penalties can be expected to continue to be quite high.  Not surprisingly, OCR has found that the specter of these CMP fines “have reinvigorated covered entities’ attention to compliance.”[21]

DOJ’s HIPAA Investigations Tend to Be a Smaller Piece of a Larger Investigation

Another road for enforcement is through DOJ prosecution for criminal violations.  Although OCR forwards to the FBI all HIPAA complaints or disclosures that involve potential criminal violations, the number of cases OCR refers to DOJ for possible criminal prosecution has been steadily declining since OCR’s enforcement tools were enhanced in 2009.  Although over 500 cases have been referred to DOJ since 2003, the number of cases referred has declined in recent years with fewer than 20 referrals a year in 2010 and 2011.  It is difficult to say with certainty how many cases related to HIPAA violations are prosecuted by DOJ.  This is because the criminal statutes that can be used to prosecute medical privacy cases are varied and cases charging only a violation of HIPAA constitute only a small portion of DOJ’s cases.  Although DOJ may not decide to prosecute all cases related to medical privacy, DOJ has noted that it tends to prosecute cases that fall under any one of three fact patterns: records stolen to commit massive fraud, records stolen for purpose of embarrassment, and records stolen for financial fraud.[22] However, these cases are more likely to be brought under different statutes—such as unlawful computer access, conspiracy, or anti-kickback—rather than HIPAA, underscoring the difficulty of identifying the extent to which HIPAA plays into DOJ prosecutions.

Increased Civil Enforcement Calls for Heightened Attention to HIPAA Compliance

There is a continued pattern of DOJ focusing on cases that involve fraud or improper use of protected health information while OCR targets the prevention of disclosure of protected health information by seeking voluntary compliance and improved procedures.

It is less clear where state attorneys general will fit into this framework, but it seems likely that they will develop into significant players in this enforcement field.  With increasing interest and activity on the part of state attorneys general and OCR, the potential for HIPAA violations to have costly and long-lasting consequences is increasing.  Covered entities must be prepared to not only ensure full compliance with HIPAA through well-crafted and comprehensive written policies but also to vigilantly implement those policies, provide employees with robust training, and prepare an action plan to respond to any policy violations.

Cassandra H. Arriaza and Sarah W. Walsh are associates at LibbyHoopes, P.C. Their clients include organizations and private individuals in many fields, including health care, and their practices focus on white collar criminal defense, internal corporate investigations, and complex civil and administrative litigation.


[1] United States Department of Health & Human Services, HIPAA Enforcement Training for State Attorneys General, Module 6: Investigating and Prosecuting Potential HIPAA Violations, available at http://www.hhshipaasagtraining.com/module6.php.

[2] Compare Testimony of Leon Rodriguez, Direct of OCR, before the Senate Committee on the Judiciary, Subcommittee on Privacy, Technology and the Law, Nov. 9, 2011, available at http://www.judiciary.senate.gov/pdf/11-11-9RodriguezTestimony.pdf with United States Department of Health & Human Services, HIPAA Enforcement Training for State Attorneys General, Module 1: State Attorneys General Enforcement of Federal Health Privacy Law, available at http://www.hhshipaasagtraining.com/module1.php.

[3] Module 1, supra note 2.

[4] Lisa Pierce Reisz, “State Attorneys General Wade Further Into HIPAA Pool,” HealtHITech Law, Aug. 7, 2012, available at http://www.healthitechlaw.com/2012/08/07/state-attorneys-general-wade-further-into-hipaa-pool/.

[5] Press Release, Massachusetts Office of the Attorney General, “South Shore Hospital to Pay $750,000 to Settle Data Breach Allegations,” May 24, 2012, available at http://www.mass.gov/ago/news-and-updates/press-releases/2012/2012-05-24-south-shore-hospital-data-breach-settlement.html.

[6] Press Release, Massachusetts Office of the Attorney General, “Former Owners of Medical Billing Practice, Pathology Groups Agree to Pay $140,000 to Settle Claims that Patients’ Health Information was Disposed of at Georgetown Dump,” January 7, 2013, available at http://www.mass.gov/ago/news-and-updates/press-releases/2013/140k-settlement-over-medical-info-disposed-of-at-dump.html.

[7] Id.

[8] OCR, “HIPAA Privacy & Security Audit Program,” available at http://www.hhs.gov/ocr/privacy/hipaa/enforcement/audit/index.html (last visited Jan. 10, 2013).

[9] Kurt T. Temple, Esq., Deputy Regional Manager Region V, OCR, “An Update from OCR on HIPAA Enforcement,” HIPAA COW 2012 Spring Conference, Apr. 20, 2012, available at http://www.hipaacow.org/Events/Spring%202012/Temple%20Handout.pdf.

[10] Testimony of Leon Rodriguez, supra note 2.

[11] Temple, supra note 9.

[12] Id.

[13] U.S. Department of Health and Human Services Office of Civil Rights, Annual Report to Congress on HIPAA Privacy Rule and Security Rule Compliance for Calendar Years 2009 and 2010, at 14, available at http://www.hhs.gov/ocr/privacy/hipaa/enforcement/compliancerept.pdf.

[14] Testimony of Leon Rodriguez, supra note 2.

[15] The last resolution agreement of 2012 was completed on December 31 but not widely publicized until January 2, 2013. See Case Examples and Resolution Agreements, OCR, available at http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/index.html (last visited Jan. 15, 2013).

[16] Press Release, Department of Health and Human Services, “Massachusetts provider settles HIPAA case for $1.5 million,” Sept. 17, 2012, available at http://www.hhs.gov/news/press/2012pres/09/20120917a.html.

[17] Press Release, Department of Health and Human Services, “Massachusetts General Hospital settles potential HIPAA violations,” Feb. 24, 2011, available at http://www.hhs.gov/news/press/2011pres/02/20110224b.html.

[18] Annual Report to Congress, supra note 13; Testimony of Leon Rodriguez, supra note 2.

[19] Press Release, Department of Health and Human Services, “HHS imposes a $4.3 million civil penalty for violations of the HIPAA Privacy Rule,” Feb. 22, 2011, available at http://www.hhs.gov/news/press/2011pres/02/20110222a.html. See also Case Examples and Resolution Agreements, supra note 15 (listing all CMPs and resolution agreements).

[20] Temple, supra note 9.

[21] Testimony of Leon Rodriguez, supra note 2.

[22] Testimony of Loretta E. Lynch, U.S. Attorney, E.D.N.Y., before the Senate Committee on the Judiciary, Subcommittee on Privacy, Technology, and the Law, Nov. 9, 2011, available at http://www.justice.gov/ola/testimony/112-1/11-09-11-usa-lynch-testimony-re-examination-of-the-enforcement-of-federal-health-information-privacy-laws.pdf.

From Practice to Theory: Medical-Legal Partnership Enters its Third Decade

From Practice to Theory:
Medical-Legal Partnership Enters its Third Decade[i]

By Samantha Morton

Over the last two decades, there has been an increasing recognition that the healthcare system and the legal community share a large swath of low-income, medically vulnerable clients (patients), and that the two professions can better serve those constituents if they collaborate with more intention and structure.[ii]

The medical-legal partnership (MLP) model was founded in 1993 at Boston Medical Center,[iii] and the depth and breadth of MLP integration into healthcare delivery and related medical education and training systems has accelerated rapidly over the last 20 years. Today, the model has taken root in over 250 health care sites across the United States; indeed, 38 medical schools[iv] and 46 residency programs[v] participate in these programs. A first-ever MLP textbook was published in August 2011.[vi] MLP programs have expanded internationally as well: in November 2012, an Inaugural Symposium on Advocacy-Health Alliances was hosted in Melbourne, Australia.[vii]
MLP had important origins in earlier innovations in legal services delivery to vulnerable, low-income people, particularly in the domains of advocacy for (a) persons with disabilities[viii] and (b) domestic violence survivors. These service delivery paradigms were consonant with evolving theories of ethical and optimal allocation of scarce legal services resources for the poor, particularly theories and models cultivated at Harvard Law School as early as the 1970s.[ix]

The MLP model was “born” at a hospital, and founded at a time when the healthcare system was growing – by necessity if not inclination – more attune to patients’ non-biological determinants of health. However, as the model has matured, it increasingly harmonizes with a range of important legal frameworks. These frameworks connect to a diversity of theoretical underpinnings, many of which are relevant to health law practice, especially where that practice involves the interests of low-income, medically vulnerable patients and the providers, staff, and institutions that serve them. Against the backdrop of the monumental 2012 milestones in federal and Massachusetts health reform, and at a time of profound reflection within the access to justice community regarding prioritization of even scarcer resources, this article seeks to update MLP’s theoretical landscape, and to identify specific paradigms through which MLP (and similar) interventions can be understood, leveraged, and critiqued.

The Original Framework: Advancing an Individual Patient’s Health and Well-Being Through Referrals to Legal Adjuncts

Simply put, some social determinants of health have legal solutions. The originating MLP model focuses on integrating legal advocates into healthcare teams so that those teams can leverage their legal colleagues’ advocacy skills and expertise on behalf of patients with health-harming legal needs.[x] These needs range from those with obvious connections to health and healthcare access (correction of housing conditions that exacerbate asthma, legal advocacy for domestic violence survivors needing protection from their abusers, appeals of unlawful health insurance denials on behalf of persons in need of treatment, and so forth) to those with more attenuated but no less important connections to health and well-being (special education advocacy, disability benefits access, estate planning and guardianship preparations for persons with terminal illness and their families, vindicating non-discrimination rights, and many more). The MLP legal partners often have been characterized as an adjunct to social work infrastructure (itself, of course, historically considered an adjunct to the clinical team) in helping patient-families to meet their basic needs.

Historically, the professional adjunct framework has positioned MLP projects primarily to “catch” individual patients’ emergency legal needs that are filtered through existing healthcare “triage” systems – which tend to focus on acute needs. This default MLP operating model aligned with the long-standing orientation of legal services agencies to allocate the majority of their scarce resources to those people at the greatest legal (and immediate human) risk.[xi]

This professional adjunct MLP framework may be revised in the coming years, substantially, by the Patient-Centered Medical Home (PCMH) model, which embodies five key attributes and functions: (1) comprehensive care; (2) patient-centered care; (3) coordinated care; (4) accessible services; and (5) quality and safety.[xii] At least in theory, this model urges healthcare delivery systems (and the teams that comprise them) to be built around the patient’s reality, whatever that may be, and to that extent the model may productively disrupt long-standing organizational charts and service flow models. If fully realized, a patient treated in a PCMH will benefit from a “hub” (such as a primary care physician) with many integrated, coordinated “spokes” (a nurse; and, as needed, a mental health provider, a social worker, a substance use counselor, a housing advocate, and so forth).

As described below, sharing a “room” in the patient-centered medical home with legal advocates – a level of systematic integration thus far without precedent – might also allow for more proactive, population-level benefits for vulnerable patients and the healthcare teams that treat them. Massachusetts already has been a leader in this regard. The Massachusetts payment reform legislation signed in August 2012 invites the State’s Office of Medicaid, when developing new cost containment methodologies that will impact healthcare delivery to a range of patient populations in the Commonwealth, to account for the costs of

care coordination and community based services provided by allied health professionals, including but not limited to community health workers, legal advocates, medical interpreters, clinical prevention specialists, human services workers, social workers, and licensed alcohol and drug counselors (emphasis added).[xiii]

This provision –- developed and advanced by the Disparities Action Network (http://cchers.org/health-disparities-and-health-equity/disparities-action-network/) –

is a milestone acknowledgment of the broad diversity of professionals required to keep people healthy.

A Corollary Framework: Advancing Population Health and Well-Being Through Structured Integration of Legal Advocates

In medicine, prevention is the province of public health[xiv] and, to some degree, primary care. Primary care is understood generally to be comprehensive first contact and continuing care for patients, with a focus on primary prevention but also diagnosis, referral, and occasional management of conditions. Public health systems are charged with preventing disease and promoting good health within groups of people, and those systems deploy unique strategies (such as policy development, research, door-to-door outreach campaigns, and population health surveillance) to achieve these goals.

In the last five years, MLP services increasingly have been described as a new kind of public health tool,[xv] with accompanying integration into a range of public health systems. In September 2011, the New York State Legislature amended its public health law to define and endorse “Health-Related Legal Services Programs.”[xvi] The U.S. Health Resources and Services Administration (HRSA, part of Health and Human Services) is supporting the model in a variety of ways, including hosting a current MLP demonstration project involving Healthy Start programs in three communities.[xvii] Healthy Start programs are committed to reducing infant mortality and other health disparities affecting communities of color.

When thinking about the role of legal collaborations in the context of combating health disparities, it is necessary to parse the concept of health equity, which often is imprecisely conflated with the phrase “health disparities.” This Boston Public Health Commission Center for Health Equity and Social Justice explanation is useful:

Health disparities, or health inequalities, are differences in the presence of disease, health outcomes, or access to health care between population groups. Health inequities, on the other hand, are differences in health that are not only unnecessary and avoidable, but, in addition, are considered unfair and unjust. Health inequities are rooted in social injustices that make some population groups more vulnerable to poor health than other groups.

Consider the following example. Male babies are generally born at a heavier birth weight than female babies. This is a health disparity. While there may be a difference in the birth weight between male babies and female babies, the difference is unavoidable and rooted in genetics. On the other hand, babies born to Black women are more likely to die in their first year of life than babies born to White women. Some of this difference is due to poverty – a higher percentage of Black mothers are poor and face hardships associated with poverty that can affect their health. But we find differences in the health and Black and White mothers and babies even if we compare Blacks and White[s] with the same income. Many scientists believe that it is racism experienced by Black women that explains this extra difference. Racism creates stress, and too much stress creates a risk for mothers and babies. This is a health inequity because the difference between the groups is unfair, avoidable and rooted in social injustice.[xviii]

This definition of health inequity – emphasizing “unnecessary,” “avoidable”, “unfair,” and “unjust” conditions – reveals that in many respects (and as further discussed below), health equity work is the public health iteration of the civil rights work historically led by, and almost exclusively associated with, the legal community.

MLP as a Civil Rights Strategy

In many respects, health equity work is civil rights work. Its focus on changing conditions (such as structural racism) that have the effect of harming large groups of people – regardless of whether responsible decision-makers intended these harms – is fundamentally analogous to disparate impact theory, a legal concept that has driven decades of important national civil rights litigation on behalf of a range of populations. The work of public health departments in both (a) educating people about health risks and (b) monitoring the prevalence of health problems is directly analogous to the civil rights outreach and enforcement efforts of bodies like the Fair Housing Center of Greater Boston and the Massachusetts Attorney General’s office.

To the extent that MLP projects serve to identify patterns and practices that put vulnerable patient populations at health risk (or greater health risk), they can play an important role in supplying both (a) documentation of the harms to a group of patients’ health and well-being, and (b) linkages to medical experts who can attest to the current and potential future health risks to that population.[xix]

This has important implications for a range of civil rights-informed legal strategies that are gaining more currency nationally, and increasing relevance and impact regionally. Spearheaded by the Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University, opportunity mapping is deployed to “illustrate where opportunity rich communities exist (and assess who has access to those communities) and to understand what needs to be remedied in opportunity poor communities” based on systematic analysis of key metrics across zip codes and neighborhoods.[xx] With funding from the Massachusetts Legal Assistance Corporation, in 2009, the Massachusetts Law Reform Institute’s Race Equity Unit supported publication of a groundbreaking report on opportunity disparities in Massachusetts.[xxi]

MLP as a Community Lawyering Strategy

The community lawyering model, with deep roots in criminal justice[xxii] and environmental justice practice, has evolved significantly over the last two decades. Key elements of this model include: (1) structured collaboration with community members (around priority-setting and strategy, etc.), (2) a focus on “empowering communities, promoting economic and social justice, and fostering systemic change,” and (3) interdisciplinary thinking and collaboration.[xxiii] One example of a thoughtful community lawyering practice in Massachusetts is the Environmental Justice Legal Services project at Alternatives for Community & Environment.[xxiv]

Increasingly, MLP projects are understood to be effective mechanisms for meaningfully infusing legal advocacy work with community perspectives and client priorities.[xxv] A range of MLP sites are integrated into formal community lawyering practices, including but not limited to the Community Lawyering Project of the Volunteer Legal Services Program of the Bar Association of San Francisco, and the Community Lawyering Clinic at the University of New Mexico School of Law.

MLP as Preventive Law

Notions of preventive law are embedded in a familiar paradigm: the customary practice of corporations and organizations to engage legal counsel on how to both conduct business successfully and, simultaneously, avoid legal problems. Typically this is accomplished through integration of in-house general counsels, or external lawyer advisors on a range of subject matters. However, a deeper theoretical basis for preventive law is developing, with significant support over the last two decades from the National Center for Preventive Law at California Western School of Law.

Preventive law theory underscores law as, fundamentally, a problem-solving tool.[xxvi] It also argues that legal problem-solving is most effective when approached as problem prevention.[xxvii] Honoring the early theoretical contributions of Louis M. Brown, preventive law theory advocates, among other things, that clients’ engage in periodic legal check-ups.[xxviii] This concept historically has been viewed as a luxury in the access to justice domain, primarily because of perpetual and deepening resource constraints that necessarily drive a more reactive referral and assistance paradigm. Preventive law theory invites consideration of whether MLP presents an opportunity for patients to have access to a “primary care legal advocate” dedicated to primary prevention of health-harming legal problems.[xxix]

Challenges to Fully Realized MLP Integration in the Next Decade

Not all interests align.

Historically, the MLP model has leveraged the substantial intersection of institutional interests and individual client (patient) interests. This predictably has eased joint, interdisciplinary priority-setting processes for MLP projects. After all, eliminating an asthmatic patient’s housing conditions problem through legal strategies dovetails with a healthcare team’s interest in reducing preventable emergency department or inpatient readmissions for that patient. This concrete alignment also has meant that MLP projects do not tackle legal issues on behalf of patients that might be adverse to the interests of their partner institutions (classic medical debt advocacy, medical malpractice, and so forth).

It remains to be seen whether MLP projects focused on health-harming legal issues that do not hew closely to the incentives embedded in healthcare finance systems will flourish, at least in the short- and mid-term.

Interdisciplinary, public health-informed work challenges deeply-held professional culture and identity attributes.

Particularly in the legal services domain, engaging in interdisciplinary work focused on prevention demands a substantial reorientation, implicating both expansion of professional values and priorities and adaption of front-line resource allocation/workloads.

First, effective partnering between the healthcare sector and the access to justice community requires that the access to justice community in particular (1) understand its (healthcare) allies and the systems that drive them, and (2) embrace its professional responsibility to conduct zealous advocacy for clients as well as develop strong professional cultural competence when communicating with allies from other professions – professions that increasingly are inviting, and funding, legal services agencies.

Second, public health and healthcare ventures are extraordinarily and data-driven, and the access to justice community must accelerate its current efforts to support data collection, aggregation, and analysis relating to the varied impacts of its work on patients and on society. Many such efforts are underway nationally, regionally, and locally.

Third, the access to justice community and the healthcare community share a common history of seeking to divide team-based labor through reliance on the notion of “practicing to the top of one’s license.” In the access to justice domain, this has reinforced a culture of lawyer as litigator and combatant (perhaps analogous to a “legal surgeon”), and a corresponding de-valuing of legal screening, referral, and delivery of legal information and advice short of full litigation (typically performed by legal hotline and related infrastructures, perhaps analogous to “legal primary care”). It bears noting that social work has experienced similar dynamics in the healthcare environment, e.g. those engaging in clinical therapy are positioned differently than those focused on addressing patients’ material hardships and other basic needs barriers to health and well-being.

While there may be reasonable differences of opinion regarding the efficacy of various strategies in a significantly resource-constrained environment, there is no doubt that a true public health-infused model of legal services delivery would allocate more resources upstream than downstream. Perhaps the common ground within the access to justice community will be found in upstream systemic, policy, or impact, work. Achieving this kind of common ground certainly would require funders of legal services delivery for low-income people to adapt their priorities accordingly, and to substantially move away from the case-counting model.

There are other sectors, aside from healthcare, with which the legal community could systematically partner in ways that could be productive for vulnerable members of society.

The “footprint” of healthcare in American society is so expansive, and the intersection of that sector with low-income, medically vulnerable consumers so deep, that medical-legal partnership was a natural nexus for a sustained experiment in interdisciplinary access to justice. But healthcare certainly is one among several, if not many, sectors that present such opportunities, albeit if at a smaller scale.

Will the MLP movement lead new experiments in these other domains, such as education-legal partnerships? Or will the next decade be focused on replication and deepening of MLP infrastructures in many more communities and healthcare delivery systems across the country? Or are these false distinctions, since all roads (schools, prisons, etc.) lead back to the bedrock concept of social determinants of health and well-being?

It would appear that given the expanding theoretical landscape on top of which the MLP model “sits,” there is ample opportunity for these and many other consequential questions to be answered thoughtfully in the next decade.

 

Samantha J. Morton is Executive Director of Medical-Legal Partnership | Boston. She is co-chair of the Boston Bar Association Delivery of Legal Services Section, and also serves on the Health Law Section’s Steering Committee. Ms. Morton is a graduate of the BBA’s Public Interest Leadership Program, and has taught Health Law at New England Law | Boston. Further biographical details can be found at: http://www.mlpboston.org/about-us/staff#Legal Staff & Consultants.


[i] The author thanks JoHanna Flacks, Medical-Legal Partnership | Boston’s Legal Director, for her critical conceptual input on this article.

[ii] Setting the Stage: Need for MLP, Nat’l Center for Med. Legal Partnership, http://www.medical-legalpartnership.org/model/need (last visited Jan. 16, 2013); Transforming Delivery Models for Healthcare and Law, Nat’l Center for Med. Legal Partnership http://www.medical-legalpartnership.org/model/transforming (last visited Jan. 16, 2013); The Movement, Nat’l Center for Med. Legal Partnership, http://www.medical-legalpartnership.org/movement (last visited Jan. 16, 2013); Awards and Recognition, Nat’l Center for Med. Legal Partnership, http://www.medical-legalpartnership.org/network/awards (last visited Jan. 16, 2013); Academic Articles, Nat’l Center for Med. Legal Partnership, http://www.medical-legalpartnership.org/resources/additional-resources/academic-articles (last visited Jan. 16, 2013).

[iii] History: One Doctor’s Vision, Nat’l Center for Med. Legal Partnership, http://www.medical-legalpartnership.org/movement/history (last visited Jan. 15, 2013).

[iv] Medical Schools, Nat’l Center for Med. Legal Partnership, http://www.medical-legalpartnership.org/movement/healthcare-partners/medical-schools (last visited Jan. 15, 2013). See generally Amy T. Campbell, Teaching Law in Medical Schools: First, Reflect, 40 J.L. Med. & Ethics 301 (2012); Jeremy Long et al., Developing Leadership and Advocacy Skills in Medicine Through Service Learning, 17 J. Pub. Health Mgmt. and Prac. 369 (2011).

[v] Residency Programs, Nat’l Center for Med. Legal Partnership, http://www.medical-legalpartnership.org/movement/healthcare-partners/residency-programs (last visited Jan. 15, 2013).

[vi] See generally Poverty, Health and Law: Readings and Cases for Medical-Legal Partnership (Elizabeth Tobin Tyler et al. eds., 2011) (positioning health in the broader social context of people’s lives and advancing legal advocacy and related interdisciplinary strategies as key responses to complex social problems).

[vii] Advocacy Health Alliances: 2012 Advocacy Health Alliance Symposium, Pub. Interest L. Clearinghouse, http://www.pilch.org.au/ (last visited Jan. 15, 2013).

[viii] See Jeanette Zelhof & Sarah Fulton, MFY Legal Services’ Mental Health-Legal Partnership, 44 Clearinghouse Rev. 535, 535 (2011). Of course, the Americans with Disabilities Act was passed by Congress in 1990, and this informed legal services priority-setting greatly.

[ix] See generally Biographies, Bellow-Sacks Access to Civ. Legal Services Project, http://www.law.harvard.edu/academics/clinical/bellow-sacks/Templates/biographies.htm; Gary Bellow’s Papers, Bellow-Sacks Access to Civ. Legal Services Project, http://www.law.harvard.edu/academics/clinical/bellow-sacks/Templates/bellowpapers.htm; http://www.garybellow.org/people/gsingsen.htm.

[x] Stewart B. Fleishman et al., The Attorney As the Newest Member of the Cancer Treatment Team, 24 J. Clinical Oncology 2123, 2123–26 (2006); Barry Zuckerman et al., Why Pediatricians Need Lawyers to Keep Children Healthy, 114 Pediatrics 224, 224–28 (2004); Paul R. Tremblay et al., Commentary: The Lawyer is In: Why Some Doctors are Prescribing Legal Remedies for Their Patients, and How the Legal Profession Can Support this Effort, 12.2-3 B.U. Pub. Int. L.J. 505-527 (2003).

[xi] The access to justice infrastructure has been compelled to ration its services since its inception, due to profound (and often politicized) resource constraints. This challenge has only deepened over the last few years. See I. Glenn Cohen, Rationing Legal Services, J. Legal Analysis (November 25, 2012) (forthcoming; available at SSRN: http://ssrn.com/abstract=2180453).

[xii] Patient Centered Medical Home Resource Center: Quality and Safety, U.S. Dep’t of Health and Hum. Servs. http://pcmh.ahrq.gov/portal/server.pt/community/pcmh_home/1483/PCMH_Defining%20the%20PCMH_v2 (last visited Jan. 15, 2013).

[xiii] Chapter 224 of the Acts of 2012.

[xiv] Public health has critical corollaries in social medicine, population medicine, and preventive medicine. References to public health herein incorporate those practices.

[xvii] Hearing on Numerous Public Health Bills Before Comm. on Energy and Commerce, Subcomm. on Health, U.S.H.R., 111th Congress (2010) (statement of Marcia K. Brand, Ph.D., Deputy Administrator, Health Resources and Services Administration, U.S. Department of Health and Human Services), available at http://www.hhs.gov/asl/testify/2010/09/t20100914d.html (last visited Jan. 16, 2013).

[xviii] What is Health Equity?, Boston Pub. Health Comm’n., http://www.bphc.org/chesj/about/Pages/WhatisHealthEquityDisparities.aspx (last visited Jan.15, 2013).

[xix] One can predict that a human rights-based theoretical basis for MLP interventions is close at hand. In November 2012, the Program on Human Rights and the Global Economy and the Program on Health Policy and Law at Northeastern University School of Law hosted an institute on Human Rights and the Social Determinants of Health, at which an MLP scholar presented. 

[xx] GIS Mapping, Kirwan Inst., http://kirwaninstitute.osu.edu/research/opportunity-communities/mapping (last visited Jan. 15, 2013).

[xxi] Report Finds That 90% of African-Americans and Latinos are in the Lowest “Opportunity” Neighborhoods in Massachusetts, Mass. L. Ref. Inst., http://www.mlri.org/mlri-announcements/report-finds-that-90-of-african-americans-and-latinos-are-in-the-lowest-opportunity-neighborhoods-in-massachusetts (last visited Jan. 15, 2013).

[xxii] Roger L. Conner, Community Oriented Lawyering: An Emerging Approach to Legal Practice, 242 Nat’l Inst. Justice J. 27, 27-33 (2000). 

[xxiii] Karen Tozark et al., Conversations on Community Lawyering: The Newest (Oldest) Wave in Clinical Legal Education, 28 J. L. & Pol. 359, 364 (2008).

[xxiv] See generally EJLS: Environmental Justice Legal Services, Alternatives for Community and Env., http://www.ace-ej.org/services (last visited Jan. 15, 2013).

[xxv] See Liz Tobin Tyler, Aligning Public Health, Health Care, Law and Policy: Medical-Legal Partnership as a Multilevel Response to the Social Determinants of Health, 8 J. Health & Biomed. L. 211 (2012).

[xxvi] See Thomas D. Barton, Preventive Law for Three-Dimensional Lawyers, 19 Preventive L. Rptr. 29 (2001).

[xxvii] See id.

[xxviii] David B. Wexler, Beyond Analogy: Preventive Law as Preventive Medicine, National Center for Preventive Law Symposium (2000), available at http://www.preventivelawyer.org/main/default.asp?pid=essays/wexler.htm (last visited Jan. 16, 2013).

[xxix] See Samantha Morton et al. (2009). Advancing the Integrated Practice of Preventive Law and Preventive Medicine. In Thomas D. Barton, Ed., Preventive Law and Problem Solving: Lawyering for the Future. Lake Mary, Florida: Vandeplas Publishing.

The “Dual Eligibles” Demonstration: Massachusetts Becomes First in the Nation to Implement a New Health Care Model for Medicare-Medicaid Beneficiaries

By: Margaretta Homsey Kroeger, Esq.

Introduction 

In August 2012, Massachusetts became the first state to gain federal approval to test a new model for providing integrated health care to individuals who are eligible for both Medicare and Medicaid, known as “dual eligibles.”[i] The dual eligibles demonstration, detailed in a Memorandum of Understanding reached with the federal Centers for Medicare and Medicaid Services (“CMS”), will significantly alter the way health care is coordinated and funded for up to 115,000 individuals statewide and, if successful, could be replicated nationally.[ii]

Prompted by the passage of the Affordable Care Act, CMS has invited states to develop new service delivery and payment models in order to improve the quality of care for dual eligibles, while also reducing the high cost of care for this population.[iii] Dual eligibles account for a disproportionately large share of both Medicare and Medicaid spending because of their complex health needs and low incomes, a situation that has been exacerbated by cost-shifting and a lack of coordination between the two programs.[iv] As a result, CMS has made it a priority to “significantly increase” the number of dual eligibles enrolled in systems that can integrate their care and align the financial incentives of the Medicare and Medicaid programs.[v]

Massachusetts’ new demonstration applies to dual eligibles ages 21 to 64, who receive Medicare because they have a chronic illness or disability and who are also financially eligible for Medicaid assistance.[vi] The demonstration is intended to reduce the cost of care for these individuals over time by enrolling them in new managed care organizations that will receive prospective blended capitated payments to provide coordinated care.  These organizations will integrate the provision of Medicare and Medicaid services for dual eligibles, including primary, acute, and behavioral health care, along with long-term services and supports.[vii]

Many details still need to be finalized before enrollment begins in July 2013, and questions remain about whether the demonstration will in fact be able to reduce costs without sacrificing the quality of care for this particularly vulnerable population.  In the coming months, policymakers, providers, health plans, and advocates on the state and national level will be monitoring the implementation of the Massachusetts plan closely and evaluating whether it could become a national model.

This article provides a broad overview of the development of the state’s new dual eligibles demonstration.  First, it discusses the national profile of the dual eligible population and the current model for providing health care to dual eligibles.  It then details the provisions of the Affordable Care Act targeted at improving care for dual eligibles and efforts by CMS to promote integrated care demonstration projects.  Third, it describes the dual eligible population in Massachusetts and summarizes the contents of the state’s demonstration plan.  Finally, it discusses various stakeholders’ concerns about the plan and the potential challenges and possible impact that the plan may have.

Background

The Dual Eligible Population: A National Profile

Nationwide, there are approximately nine million people who are dually eligible for both the Medicare and Medicaid programs.[viii] These individuals are eligible for Medicare either because they are age 65 or older, or, if they are under 65, because they have a permanent disability that qualifies them to receive federal Social Security Disability Insurance benefits or because they have end-stage renal disease.[ix] Medicare beneficiaries may also qualify for Medicaid assistance if they are low-income or meet certain other requirements.  On average, dual eligibles are much poorer than other Medicare beneficiaries—86 percent of dual eligibles had incomes below 150 percent of the federal poverty level in 2008, compared to 22 percent of other beneficiaries.[x]

Dual eligibles receive primary health insurance coverage through Medicare, which covers inpatient and outpatient care, diagnostic and preventive services, prescription drugs, short-term rehabilitative and skilled nursing care, and some home health services.[xi] Medicaid supplements this coverage by helping to pay for Medicare premiums and copayments, and may also provide other benefits that are not covered by Medicare, including long-term services such as nursing and home health care and personal care attendant services.[xii] About 77 percent of beneficiaries, known as “full” dual eligibles, receive complete Medicaid benefits in addition to their Medicare coverage.[xiii] The remainder receives limited Medicaid assistance that helps to cover Medicare premiums and cost-sharing expenses.[xiv]

The cost of care for dual eligibles is disproportionately expensive because they have more complex medical needs than the general Medicaid and Medicare populations.  Dual eligibles are much more likely to suffer from multiple chronic health conditions, to have cognitive and mental impairments, and to require home and personal care services or nursing home care.[xv] Additionally, dual eligibles are more likely to utilize expensive services, such as emergency room visits, hospitalizations, post-acute care, and long-term care, than other beneficiaries.[xvi] As a result, while dual eligibles made up 15 percent of Medicaid and 20 percent of Medicare enrollees, they accounted for 39 percent of Medicaid and 31 percent of Medicare expenditures in 2008.[xvii]

Room for Reform: The Affordable Care Act and Dual Eligibles

As national health care reform gained momentum, policymakers recognized opportunities to control costs and improve the delivery of care for the dual eligible population.  It was clear that the current structure can be inefficient and unnecessarily expensive.  The provision of services to dual eligibles is often not coordinated between the Medicare and Medicaid programs.  Differences in coverage rules, provider networks and plans, and other program regulations have led to problems in navigating the bifurcated system and to inadequate or duplicative care.[xviii]

Further, the financial incentives of the Medicare and Medicaid programs are not aligned, which encourages cost-shifting between the programs.[xix] In a 2010 report to Congress, the independent Medicare Payment Advisory Commission (“MedPAC”) found that the programs “often work at cross-purposes,” noting that conflicting incentives “encourage providers to avoid costs rather than coordinate care, and poor coordination can raise spending and lower quality.”[xx] For example, a nursing home receiving Medicaid payments might be incentivized to transfer a dual eligible resident to a hospital, where Medicare would cover costly services, rather than provide the services itself.[xxi] Similarly, a hospital might be financially incentivized to transfer a patient to a nursing home, without considering the long-term implications for cost containment and quality of care.[xxii] The Commission also pointed out that under the current system states are “more inclined to invest in programs to lower their long-term care spending,” which comes out of state Medicaid funds, than to create programs that would avoid unnecessary hospitalizations for dual eligibles, because doing so would benefit the Medicare program rather than the state.[xxiii]

In order to address these issues, the 2010 federal Affordable Care Act health reform legislation[xxiv] contains provisions intended to increase coordination and remove the programs’ conflicting financial incentives.  First, § 2602 of the Act created a new Federal Coordinated Health Care Office within CMS, also known as the Medicare-Medicaid Coordination Office.[xxv] The stated purpose of the office is to “bring together” the officers and employees of both programs to: (1) “more effectively integrate benefits” under the Medicare and Medicaid programs, and (2) “improve coordination” between the federal government and the states concerning dual eligibles.[xxvi] Specifically, the goals of the office are set out as follows:

“(1) Providing dual eligible individuals full access to the benefits to which such     individuals are entitled under the Medicare and Medicaid programs.

“(2) Simplifying the processes for dual eligible individuals to access the items and             services they are entitled to under the Medicare and Medicaid programs.

“(3) Improving the quality of health care and long-term services for dual eligible    individuals.

“(4) Increasing dual eligible individuals’ understanding of and satisfaction with     coverage under the Medicare and Medicaid programs.

“(5) Eliminating regulatory conflicts between rules under the Medicare and            Medicaid programs.

“(6) Improving care continuity and ensuring safe and effective care transitions for             dual eligible individuals.

“(7) Eliminating cost-shifting between the Medicare and Medicaid program and    among             related health care providers.

“(8) Improving the quality of performance of providers of services and suppliers    under the Medicare and Medicaid programs.”[xxvii]

Further, § 3021 of the Affordable Care Act established the Center for Medicare and Medicaid Innovation (“CMMI”) within CMS, which is intended “to test innovative payment and service delivery models to reduce program expenditures…while preserving or enhancing the quality of care” for Medicare and Medicaid beneficiaries.[xxviii] The CMMI was granted authority under §1115A of Title XI of the Social Security Act to waive certain requirements of the Medicare and Medicaid programs in order to test 20 possible models set out in the Act.[xxix] Two of the models specifically reference dual eligibles: (1) “[a]llowing States to test and evaluate fully integrating care for dual eligible individuals in the State, including the management and oversight of all funds under the applicable titles with respect to such individuals;” and (2) “[a]llowing States to test and evaluate systems of all-payer payment reform for the medical care of residents of the State, including dual eligible individuals.”[xxx]

The Act provides for phased testing of these payment and service delivery models through the CMMI.  In the first phase, models will be tested to determine their effect on program expenditures and the quality of care.[xxxi] In the second phase, the Secretary of Health and Human Services may expand the duration and scope of a model through rulemaking, “including implementation on a nationwide basis.”[xxxii] In order to expand a particular model, the Secretary must determine that the model is expected either to reduce spending without reducing the quality of care, or to improve the quality of care without increasing spending.[xxxiii] Further, the Secretary must determine that the expansion “would not deny or limit the coverage or provision of benefits” for the applicable individuals, and the CMS chief actuary must certify that the expansion would reduce, or at least not increase, net program spending.[xxxiv]

The Call for Integrated Care and Financial Alignment Demonstration Proposals

In April 2011, the Federal Coordinated Health Care Office and the CMMI announced that CMS had awarded contracts to 15 states under a new “State Demonstrations to Integrate Care for Dual Eligible Individuals” initiative.[xxxv] These states, including Massachusetts, were each awarded up to $1 million “to design strategies for implementing person-centered models that fully coordinate” care for dual eligibles, and CMS indicated that it would be working with these states “to implement the plans that hold the most promise.”[xxxvi]

In July 2011, CMS sent a letter to all state Medicaid directors detailing two new “financial alignment models” that it was seeking to test to improve quality and reduce the cost of care for dual eligibles, and inviting all interested states to submit letters of intent to participate.[xxxvii] CMS observed that a “longstanding barrier” to integrating care for dual eligibles “has been the financial misalignment between Medicare and Medicaid,” noting that because duals receive services from both programs, the states do not have an incentive to invest in initiatives to better coordinate their care.[xxxviii] To address this structural problem, CMS proposed two options for realigning the programs’ financial incentives, which it believes will lower costs for both the states and the federal government: a capitated model and a managed fee-for-service model.[xxxix]

Under the first option, a proposed “capitated model” would integrate care for dual eligibles by creating three-way contracts between CMS, the state, and health plans that would be selected through a competitive joint procurement process.[xl] The plans would receive a blended capitated rate for “the full continuum of benefits” provided to dual eligibles by both Medicare and Medicaid, and the rate would be actuarially developed to provide savings to both the state and federal government.[xli]

Under the second option, a “managed fee-for-service model” or “FFS model,” the state would provide coordinated care for dual eligibles.[xlii] The state would then be eligible for a retrospective performance payment if it achieved a certain level of savings for the Medicare program (after controlling for any increase in federal Medicaid costs) and if it met quality thresholds.  CMS noted that this model could be attractive to states that had already invested in a coordinated FFS model for Medicaid beneficiaries, and to states that wanted to take advantage of new opportunities through the Affordable Care Act to establish Accountable Care Organizations (ACOs) or Medicaid health homes.[xliii]

By the spring of 2012, 26 states had submitted proposals for the financial alignment demonstration to CMS, including Massachusetts and the 14 other states that had been awarded contracts in the initial 2011 integrated care initiative.[xliv] CMS has been working with state officials to meet demonstration requirements with the eventual goal of entering into a formal Memorandum of Understanding with each state.

The Massachusetts Dual Eligibles Demonstration Plan

Profile of Dual Eligibles in Massachusetts

There are approximately 242,000 dual eligibles in Massachusetts.[xlv] In 2009, they accounted for 43 percent of the state’s Medicaid spending, compared with a national average of 38 percent.[xlvi] Within the Massachusetts dual eligible population, approximately 115,000 are between the ages of 21 and 64, and qualify for Medicare due to chronic illness or disability rather than age.[xlvii]

The Massachusetts Medicaid Policy Institute (“MMPI”) in collaboration with the Massachusetts Medicaid Program (MassHealth) found that combined Medicare and Medicaid spending for the 21 to 64 age group was $2.5 billion in 2008, accounting for 16 percent of all Medicare spending and 20 percent of all Medicaid spending in the state.[xlviii] On average, combined annual spending was $23,700 per capita for this group.[xlix]

The MMPI further found that 60 percent of Massachusetts dual eligibles in the 21 to 64 age group had diagnoses in at least two of three major categories: physical illness or disability, behavioral diagnosis, or developmental disability.[l] This subset represented more than 80 percent of total spending.[li] Spending levels were particularly high for dual eligibles in this age group with developmental disabilities, especially when combined with other diagnoses.  For example, annual per capita spending for dual eligibles diagnosed with a developmental disability was $31,800 on average, rising to $71,300 for dual eligibles who also had a behavioral and physical diagnosis in addition to their developmental disability.[lii]

The Massachusetts Demonstration and Memorandum of Understanding

On August 23, 2012, Governor Patrick’s administration announced that Massachusetts had become the first state to sign a Memorandum of Understanding (“MOU”) with CMS to begin implementation of an integrated care and financial alignment demonstration for dual eligibles.[liii] The Massachusetts plan focuses on the 115,000 “full” dual eligibles in the state between the ages of 21 and 64 and will last for three years.[liv] The state has decided to test the capitated model proposed by CMS via three-way contracts between the state, CMS, and new managed care entities called Integrated Care Organizations (“ICOs”) that will receive a blended payment to cover all Medicare and Medicaid services.[lv]

The MOU between Massachusetts and CMS describes the demonstration’s key objectives as follows: “[T]o improve the beneficiary experience in accessing care, deliver person-centered care, promote independence in the community, improve quality, eliminate cost shifting between Medicare and Medicaid and achieve cost savings for the Commonwealth and Federal government through improvements in care and coordination.”[lvi] The MOU also emphasizes the importance of dual eligible beneficiaries’ involvement and ability to self-direct their care under the new demonstration, and it states that the parties expect improvements in the quality of care and in transitions among care settings for dual eligibles.[lvii]

The stated purpose of the MOU is to lay out the “principles under which the initiative will be implemented and operated” and to outline the preparations that will be necessary for the plan’s implementation.  The MOU notes that additional details, including specifics about the responsibilities of the managed care plans, will be contained in the final contracts between the state, CMS, and the ICOs, which at that time were still being selected through the joint procurement process.[lviii]

Benefits and Service Delivery

Generally, ICOs must provide integrated primary care and behavioral health services to each enrollee, coordinated by a designated Care Coordinator or Clinical Care Manager in conjunction with an Independent Living and Long Term Services and Supports (“IL-LTSS”) Coordinator, who will be an independent contractor from a community-based organization.[lix] Notably, the requirement for the IL-LTSS Coordinator was added to the proposal based on stakeholder comments received by the state as it was developing the demonstration.[lx] The IL-LTSS Coordinator will be available to act as an independent facilitator between the enrollee, the ICO, and service providers, as well as to provide expertise about community supports and to ensure that the enrollee receives “person-centered” care.[lxi]

The primary care provider, Care Coordinator, IL-LTSS Coordinator, and other providers will together form an Interdisciplinary Care Team that will work with enrollees to develop and implement an Individualized Care Plan.[lxii] At the outset, the plan will be based on an initial assessment of the enrollee’s medical, behavioral health, and LTSS needs performed by a registered nurse within 90 days of enrollment.  It will also be based on an in-person comprehensive assessment that evaluates the enrollee’s needs in social, functional, medical, behavioral, wellness, and prevention domains.[lxiii] The comprehensive assessment must describe the enrollee’s strengths and goals, need for specialists, as well as the care management and coordination plans.[lxiv]

The ICOs are required to provide the full continuum of services covered by Medicare and Medicaid to their enrollees as well as a range of supplemental benefits listed in the MOU, including diversionary behavioral health services, community support services, and expanded oral health, personal care attendant, and durable medical equipment services.[lxv] The MOU explains that medical necessity determinations for services will be based on existing Medicare and MassHealth definitions, except where there is an overlap between the programs; in that situation, the three-way contracts will set out the coverage and rules for particular services.[lxvi]

Enrollment

Under the MOU, Massachusetts will be using a passive enrollment process that will enroll dual eligibles in an ICO managed care plan unless they affirmatively request to opt out of the demonstration.[lxvii] The state will conduct two passive enrollment periods,[lxviii] prior to which the ICOs will have an opportunity to market their plans and enroll beneficiaries who would like to self-select a plan.[lxix]

For those beneficiaries who do not voluntarily choose a plan, the state hopes to develop an “intelligent assignment” algorithm that will automatically enroll people in particular plans based on factors such as continuing relationships with existing providers and services.[lxx] These beneficiaries will receive notice at least 60 days prior to being passively enrolled in a plan and will have the opportunity to opt out of enrollment.[lxxi] Further, once enrolled, dual eligibles may choose to disenroll from their managed care plan on a month-to-month basis.[lxxii]

In order to promote continuity of care, the ICOs must allow enrollees to maintain their current providers and services for up to 90 days after enrollment or until the ICO completes the initial assessment of the enrollee’s needs, whichever comes later.[lxxiii] Further, under certain circumstances the ICOs will be required to offer single-case, out-of-network agreements to an enrollee’s service providers after the 90-day period if the providers will accept the in-network payment rate.[lxxiv]

Financing, Risk Mitigation, and Program Savings

With respect to financing, the state and CMS will enter into a joint rate-setting process to determine the blended capitated payment rates and contributions will be risk-adjusted.[lxxv] The MOU provides that the state will arrive at a baseline spending and payment rate for Medicaid based on its historic cost data, and CMS will determine a baseline spending and payment rate for Medicare Parts A and B based on a blend of Medicare Advantage projected payment rates and Medicare fee-for-service standardized county rates, which will be weighted by the proportion of dual eligibles that will be moving from each program to the ICOs.[lxxvi] The baseline rate for Medicare Part D will be based on the national average monthly bid amount for the calendar year.[lxxvii]

The blended payments to the ICOs will be risk-adjusted.  In addition, the state will be creating “high cost risk pools” to help cover the expense of certain long-term supports and services for high-cost enrollees.[lxxviii] It will withhold a portion of the ICO Medicaid payments in separate risk pools covering enrollees in different rating categories (those likely to need facility-based care or who have “high” community needs).  Risk pool funds will then be divided and distributed among the ICOs based on their share of total costs for these enrollees above a specified threshold amount, to be determined in the three-way contracts.[lxxix] Finally, the demonstration will include risk corridors during the first year to prevent overpayment or underpayment to particular ICOs.[lxxx]

The MOU states that the demonstration is expected to generate savings for both programs by applying designated savings percentages to the baseline Medicaid and Medicare Part A and B rates in determining the capitated payment rates.[lxxxi] In the first year of the demonstration, the savings percentage will be one percent, in the second year, two percent, and in the third year it will increase to four percent.[lxxxii] The savings percentages will not be applied to the Medicare Part D rate.[lxxxiii] The MOU notes that the state and CMS “agree that there is reasonable expectation” that savings can be achieved while paying the ICOs “capitated rates that are adequate to support access to and utilization of medical and non-medical benefits according to beneficiary needs.”[lxxxiv]

The MOU also establishes a “quality withhold” policy whereby Medicare and Medicaid will withhold a designated percentage of the capitated rate which it will only pay out to the ICOs if they show that they have met certain quality thresholds.[lxxxv] The quality withhold will be one percent in the first year of the demonstration, two percent in the second year, and three percent in the third.[lxxxvi]

  Appeals, ADA Compliance, Monitoring, and Evaluation

The MOU provides for a unified grievance and appeals process,[lxxxvii] and for the establishment of at least one consumer advisory committee that will give input to the ICO governing boards.[lxxxviii] The ICOs must also include consumers with disabilities within their governing structure.  In addition, the state and CMS will be developing both monitoring and quality measures to ensure that ICOs and providers comply with the Americans with Disabilities Act, including providing physical access and flexible scheduling, as well as accommodating enrollees who have hearing or cognitive impairments, or who do not speak English.[lxxxix]

Under the MOU, CMS will pay for an independent evaluator to monitor and evaluate the Massachusetts demonstration.  The evaluator will look at enrollee health outcomes, the quality and utilization of care across settings, enrollees’ satisfaction and experience, administrative and system changes and efficiencies, and overall costs or savings for the Medicare and Medicaid programs.[xc]

Implementation: Future Challenges and Opportunities

As the MOU makes clear, many details of the demonstration project still have to be hammered out in the contracts between the state, CMS, and the new ICOs.  Stakeholders and policymakers nationwide will be watching to see how issues are resolved in the contracts and how implementation progresses, as the Massachusetts model may have a significant impact on the demonstrations being developed in other states.

The state Executive Office of Health and Human Services (“EOHHS”) announced in November 2012 that it had selected six organizations to serve as ICOs for the demonstration: Blue Cross and Blue Shield of Massachusetts HMO Blue Inc.; Boston Medical Center HealthNet Plan; Commonwealth Care Alliance; Fallon Total Care, LLC; Neighborhood Health Plan; and Network Health, LLC.[xci] These organizations are currently engaged in a joint federal and state readiness review process.  The ICOs will then negotiate the contracts with the state and CMS, which are expected to be finalized in March or April 2013.[xcii]

Dual eligibles and disability and consumer advocates in Massachusetts and across the country have said that they see great promise in the demonstration.  Many view it as a critical opportunity to improve the quality of care for dual eligibles and to increase the level of control that they have over the decisions being made about their care and the long-term services and supports they receive.[xciii] However, these groups and other organizations have also raised concerns about the overall approach that CMS is taking with the demonstration projects and about the contents of the Massachusetts MOU.

Most broadly, state and national groups have expressed unease about the wide scope and short implementation timeline of the proposed dual eligible demonstrations, the use of passive enrollment, and whether capitated rates will be sufficient for plans to provide adequate care to such medically complex individuals.  For example, in comments submitted to CMS, the Medicare Payment Advisory Commission (“MedPAC”) stated that it believed the scope of the demonstrations was too broad, should be limited to only a few states, and should not apply to all or even to a majority of full dual eligibles in a given state.[xciv] It noted that given the current size of the proposed demonstrations, plans initially might not have the capacity to care for such large numbers of dual eligibles.  Further, MedPAC pointed out that if demonstrations were not successful it could be very challenging to transition so many people out of the plans.  It also suggested that CMS consider not applying savings reductions to capitated payment rates in the first year of the demonstrations, given how much uncertainty there is about what actual program costs will be and the ability of plans to provide care under reduced rates.[xcv]

The American Medical Association (“AMA”) has suggested that CMS delay the implementation of the dual eligible demonstrations for at least a year to provide more time for stakeholders to review and comment on state proposals and to work with CMS, the states, and health plans to address areas of concern.[xcvi] The AMA, the Federation of American Hospitals, and other provider associations have also voiced concern about whether providers will continue to be reimbursed at Medicare rates under the new demonstrations, or if plans will try to achieve savings by reducing rates rather than by improving coordination of care.[xcvii]

With respect to Massachusetts in particular, there is concern about the MOU’s lack of specificity and the number of issues that still need to be resolved in the three-way contracts, as well as whether the implementation process will be sufficiently transparent.  Various groups have raised questions about whether the ICOs will have enough time to build the necessary competence and capacity to adequately serve such a high-need population before enrollment begins.[xcviii] Further, many are worried about the passive enrollment process, specifically that duals may not fully understand the program—especially those with intellectual and developmental disabilities—and that once enrolled they could lose access to providers with whom they have built vital long-standing relationships.[xcix] There is also unease about the method that the state will be using to assign dual eligibles to particular plans and whether the disability community will be consulted about its design.[c]

To address these and other concerns, the state has announced the creation of an “Implementation Council” that it says will promote transparency and actively monitor implementation of the duals demonstration.[ci] The Council will include dual eligibles as well as representatives from medical, behavioral health and long-term services and supports providers and from community-based organizations.[cii] The state has indicated that it also plans to establish an ombudsperson role for the demonstration.[ciii]

Finally, EOHHS recently announced that the state and CMS have decided to delay demonstration enrollment by several months in order to “ensure that there is sufficient time for all critical implementation milestones to be achieved…including robust public awareness and targeted outreach efforts so that individuals have a meaningful opportunity to learn about the Demonstration and select an ICO prior to the auto-assignment process.”[civ] The MOU originally provided for ICO plan marketing to begin in January 2013, with voluntary self-selected enrollment beginning in April 2013 and passive enrollment periods slated for July and October 2013.  Under the revised implementation timeline, ICOs will now begin outreach to dual eligibles in May 2013 for voluntary enrollment beginning July 1, 2013, followed by the two passive enrollment periods beginning October 1, 2013 and January 1, 2014.[cv]

Conclusion

As the dual eligibles demonstration is implemented in the coming months and years, it remains to be seen whether the state will be able to lower costs by more effectively and efficiently providing care for dual eligible beneficiaries, and how the state’s experience with using a capitated financial model will compare with that of states choosing to implement a managed fee-for-service plan.  What is certain is that the rest of the country will be watching with interest to see whether Massachusetts is successful in its latest attempt to lead the nation in improving the quality of health care while containing its cost.

Margaretta Homsey Kroeger is a Skadden Fellow at Greater Boston Legal Services in the Elder, Health and Disability Unit, where she focuses on advocating for youth with disabilities who are aging out of the foster care system. She provides outreach and direct legal representation to youth who need assistance accessing disability benefits, health care, and related services. Prior to her fellowship, Ms. Kroeger clerked for Justice William P. Robinson III of the Rhode Island Supreme Court. She received her law degree from Boston College Law School, where she was a Public Service Scholar and served as an articles editor of the Boston College Law Review and as vice president of the Public Interest Law Foundation. She received her undergraduate degree from Harvard University with a con


[i] Massachusetts Executive Office of Health and Human Services, Patrick-Murray Administration Announces First in the Nation Comprehensive Health Care Option for Dual Eligible Individuals Approved by Obama Administration (Aug. 23, 2012), available at http://www.mass.gov/eohhs/gov/newsroom/press-releases/eohhs/first-in-the-nation-comprehensive-health-care-option.html.

[ii] The Kaiser Commission on Medicaid and the Uninsured, Massachusetts’ Demonstration to Integrate Care and Align Financing for Dual Eligible Beneficiaries 3 (Oct. 2012), http://www.kff.org/medicaid/upload/8291-02.pdf [hereinafter “Massachusetts’ Demonstration to Integrate Care”].

[iii] Letter from CMS Center for Medicaid, CHIP and Survey & Certification and Medicare-Medicaid Coordination Office to State Medicaid Directors (Jul. 8, 2011), available at http://downloads.cms.gov/cmsgov/archived-downloads/SMDL/downloads/Financial_Models_Supporting_Integrated_Care_SMD.pdf [hereinafter “Letter from CMS to State Medicaid Directors”].

[iv] The Kaiser Commission on Medicaid and the Uninsured, Medicaid’s Role for Dual Eligible Beneficiaries 7 (April 2012), http://www.kff.org/medicaid/upload/7846-03.pdf [hereinafter “Medicaid’s Role for Dual Eligible Beneficiaries”].

[v] Letter from CMS to State Medicaid Directors, supra n.3.

[vi] Massachusetts’ Demonstration to Integrate Care, supra n.2, at 1-3.

[vii] Id.

[viii] The Kaiser Family Foundation, Medicare’s Role for Dual Eligible Beneficiaries 1 (April 2012), http://www.kff.org/medicare/upload/8138-02.pdf [hereinafter “Medicare’s Role for Dual Eligible Beneficiaries”].

[ix] Id. at 2.

[x] See Medicaid’s Role for Dual Eligible Beneficiaries, supra n.4, at 2.

[xi] See Medicare’s Role for Dual Eligible Beneficiaries, supra n.8, at 2.

[xii] See Medicaid’s Role for Dual Eligible Beneficiaries, supra n.4, at 2.

[xiii] Id. at 4.

[xiv] Id.

[xv] Medicare’s Role for Dual Eligible Beneficiaries, supra n.8, at 3.  For example, in 2008, 55 percent of dual eligibles had three or more chronic conditions, as compared with 44 percent of other Medicare beneficiaries, and 58 percent had a cognitive or mental impairment, as compared with 25 percent of other beneficiaries. Id.  In addition, 44 percent of dual eligibles required assistance with activities of daily living versus 26 percent of other Medicare recipients, and 13 percent lived in nursing homes or mental health facilities, compared with one percent of non-dual eligibles. Id.

[xvi] Id. at 4.  Among dual eligibles nationwide, 26 percent had at least one hospitalization per year, compared with 18 percent of other Medicare beneficiaries, 17 percent had an emergency room visit compared with 12 percent of other beneficiaries, and nine percent had stayed in a skilled nursing facility versus four percent of other beneficiaries. Id.  Under the Medicaid program, 69.1 percent of dual eligibles spending was for long-term care services, while 15.8 percent was for Medicare acute care cost-sharing, and  9.2 percent went toward Medicare premiums.  Medicaid’s Role for Dual Eligible Beneficiaries, supra n.4, at 7.

[xvii] Medicaid’s Role for Dual Eligible Beneficiaries, supra n.4, at 7; Medicare’s Role for Dual Eligible Beneficiaries, supra n.8, at 2.  Within the Medicare program, average annual spending on each dual eligible beneficiary was $14,169 in 2008, compared with $7,933 for other Medicare beneficiaries.  Medicare’s Role for Dual Eligible Beneficiaries, supra n.8, at 4.

[xviii] See Community Catalyst, Dual Eligible Demonstration Projects: Top Ten Priorities for Consumer Advocates 1 (March 2012), http://www.communitycatalyst.org/doc_store/publications/Top_Ten_Duals_Projects_Guide_Advocates.pdf.

[xix] See Letter from CMS to State Medicaid Directors, supra n.3; The Kaiser Family Foundation, Health Reform Opportunities: Improving Policy for Dual Eligibles 4 (Aug. 2009), http://www.kff.org/medicaid/upload/7957.pdf.

[xx] The Medicare Payment Advisory Commission (MedPAC), Report to the Congress: Aligning Incentives in Medicare 129 (June 2010), http://www.medpac.gov/documents/jun10_entirereport.pdf.

[xxi] Id. at 141.

[xxii] Id. at 140-41.

[xxiii] Id. at 141.

[xxiv] The “Affordable Care Act” refers to the Patient Protection and Affordable Care Act (Pub. L. 111-148) enacted on March 23, 2010, as revised by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152).

[xxv] Affordable Care Act § 2602(a).

[xxvi] Id. § 2602(b).

[xxvii] Id. § 2602(c).

[xxviii] Affordable Care Act §3021(a), adding § 1115A to Title XI of the Social Security Act, codified at 42 U.S.C. 1315a(a)(1).

[xxix] 42 U.S.C. 1315a(b).

[xxx] 42 U.S.C. 1315a(b)(2)(B)(x)-(xi).

[xxxi] 42 U.S.C. 1315a(b)(1).

[xxxii] 42 U.S.C. 1315a(c).

[xxxiii] 42 U.S.C. 1315a(c)(1)(A)-(B).

[xxxiv] 42 U.S.C. 1315a(c)(2)-(3).

[xxxv] CMS Office of Public Affairs, 15 States Win Contracts to Develop New Ways to Coordinate Care for People with Medicare and Medicaid (April 14, 2011), available at http://www.cms.gov/apps/media/press/factsheet.asp?Counter=3929&intNumPerPage=10&checkDate=&checkKey=&srchType=1&numdays=3500&sr.  The 15 states selected were California, Colorado, Connecticut, Massachusetts, Michigan, Minnesota, New York, North Carolina, Oklahoma, Oregon, South Carolina, Tennessee, Vermont, Washington and Wisconsin. Id.

[xxxvii] Letter from CMS to State Medicaid Directors, supra n.3.

[xl] Id.

[xli] Id.

[xlii] Id.

[xliv] The Kaiser Commission on Medicaid and the Uninsured, Explaining the State Integrated Care and Financial Alignment Demonstrations for Dual Eligible Beneficiaries 2 (Oct. 2012), http://www.kff.org/medicaid/upload/8368.pdf.  The 26 states that submitted proposals were Arizona, California, Colorado, Connecticut, Hawaii, Idaho, Illinois, Iowa, Massachusetts, Michigan, Minnesota, Missouri, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, Washington, and Wisconsin. Id. at 1-2.  For a current list of states with active financial alignment demonstration proposals, visit https://www.cms.gov/Medicare-Medicaid-Coordination/Medicare-and-Medicaid-Coordination/Medicare-Medicaid-Coordination-Office/FinancialModelstoSupportStatesEffortsinCareCoordination.html.

[xlv] Massachusetts’ Demonstration to Integrate Care, supra n.2, at 3.

[xlvi] The Kaiser Family Foundation, Individual State Profiles, Massachusetts: Dual Eligibles, available at http://www.statehealthfacts.org/profileind.jsp?cat=6&rgn=23&sub=76.  That year, Massachusetts averaged $23,790 in annual Medicaid spending per dual eligible versus the national average of $16,325. Id.

[xlvii] Massachusetts Medicaid Policy Institute, Dual Eligibles in Massachusetts: A Profile of Health Care Services and Spending for Non-Elderly Adults Enrolled in Both Medicare and Medicaid 4 (Sept. 2011), http://bluecrossmafoundation.org/sites/default/files/MMPI%20Duals%20Chart%20Pack_0.pdf.

[xlviii] Id.  The statistics in the report are based on a data set comprised of 105,000 duals between the ages of 21 and 64 who received fee-for-service coverage, and excludes the approximately 10,000 additional duals in this group who were enrolled in managed care. Id.

[xlix] Id.  When broken down by type of service, 35 percent of spending went toward long-term support services for these dual eligibles, 22 percent went toward inpatient care, and 13 percent went toward pharmacy costs. Id. at 21.

[l] Id. at 15.

[li] Id.

[lii] Id. at 19.

[liii] Massachusetts Executive Office of Health and Human Services, Patrick-Murray Administration Announces First in the Nation Comprehensive Health Care Option for Dual Eligible Individuals Approved by Obama Administration (Aug. 23, 2012), available at http://www.mass.gov/eohhs/gov/newsroom/press-releases/eohhs/first-in-the-nation-comprehensive-health-care-option.html.

[liv] Massachusetts’ Demonstration to Integrate Care, supra n.2, at 3.

[lv] Id. at 1.

[lvi] Memorandum of Understanding (MOU) Between The Centers for Medicare & Medicaid Services (CMS) and the Commonwealth of Massachusetts Regarding a Federal-State Partnership to Test a Capitated Financial Alignment Model for Medicare-Medicaid Enrollees, Demonstration to Integrate Care for Dual Eligible Beneficiaries 3 (Aug. 22, 2012), available at https://www.cms.gov/Medicare-Medicaid-Coordination/Medicare-and-Medicaid-Coordination/Medicare-Medicaid-Coordination-Office/Downloads/MassMOU.pdf [hereinafter “MOU”].

[lvii] Id.

[lviii] Id. at 2-4.

[lix] Id. at 26, 58.

[lx] See Massachusetts’ Demonstration to Integrate Care, supra n.2, at 5.

[lxi] MOU, supra n.56, at 26, 58.

[lxii] Id. at 26-27, 58-59.

[lxiii] Id. at 59, 82.

[lxiv] Id. at 59.

[lxv] Id. at 10, 68-81.

[lxvi] Id. at 68.

[lxvii] Id. at 9, 56.

[lxviii] Id. at 56.

[lxix] Id. at 56, 87.

[lxx] Id. at 57.

[lxxi] Id. at 56.

[lxxii] Id. at 9.

[lxxiii] Id. at 82.

[lxxiv] Id. at 83.

[lxxv] Id. at 39.

[lxxvi] Id. at 43-44.

[lxxvii] Id. at 45.

[lxxviii] Id. at 52.

[lxxx] Id. at 52-53.

[lxxxi] Id. at 46.

[lxxxv] Id. at 47.  The MOU contains charts that lay out the specific quality withhold measures to be considered, broken down by demonstration year. Id. at 47-50.

[lxxxvi] Id. at 48-49.

[lxxxvii] Id. at 15.

[lxxxviii] Id. at 13-14.

[lxxxix] Id. at 12-13.

[xc] Id. at 20, 106.

[xciii] Massachusetts Executive Office of Health and Human Services, Patrick-Murray Administration Announces Health Care Cost Containment Measure to Serve 111,000 Dually Eligible Individuals (June 19, 2012), available at http://www.mass.gov/eohhs/gov/newsroom/press-releases/eohhs/health-care-cost-containment-measure-to-serve-111000.html.

[xciv] See Letter from Medicare Payment Advisory Commission (MedPAC) to Marilyn Tavenner, CMS Acting Administrator (Jul. 11, 2012), available at http://www.medpac.gov/documents/07112012_MedPAC_Comment_CMS_demos_states_integratedcare_dualeligibles.pdf.

[xcv] See id.

[xcvi] See Letter from American Medical Association to Marilyn Tavenner, CMS Acting Administrator (Jul. 19, 2012), available at http://www.ama-assn.org/resources/doc/omss/temp/i-12/1-2.pdf.

[xcvii] See id.; see also The Advisory Board Company, In 26-State Dual-Eligible Demo, Hospitals Push Insurers to Pay Medicare Rates (Sept. 20, 2012), http://www.advisory.com/Daily-Briefing/2012/09/20/In-26-state-dual-eligible-demo-hospitals-push-insurers-to-pay-Medicare-rates; Letter from Federation of American Hospitals to Marilyn Tavenner, CMS Acting Administrator (April 19, 2012), available at http://www.fah.org/fahCMS/Documents/On%20The%20Record/Public%20Comments/2012/FAH_Comments_Capitated_Finan_Align_Demo_Guid.pdf.

[xcviii] See, e.g., Letter from Dennis Heaphy and Bill Henning, Co-Chairs of Disability Advocates Advancing our Healthcare Rights (DAAHR), to Massachusetts EOHHS Secretary JudyAnn Bigby, MD, and CMS Medicare-Medicaid Coordination Office Director Melanie Bella (Sept. 18. 2012), available at

http://www.masslegalservices.org/content/letter-disability-rights-coalition-sec-bigby-duals-memo-understanding; Memorandum from DAAHR and the ARC of Massachusetts to the Massachusetts Congressional Delegation, Memorandum on Needed Changes or Clarifications in Massachusetts Medicare/Medicaid Integration Demonstration Project (Oct. 1, 2012), available at

https://www.arcmass.org/LinkClick.aspx?fileticket=PspW5h00DeE%3D&tabid=114.

[xcix] See id.

[c] Id.; see also National Committee to Preserve Social Security and Medicare and the National Senior Citizens Law Center, Comments on the Massachusetts Memorandum of Understanding, available at http://www.ncpssm.org/Portals/0/pdf/comments-dual-eligible-demonstrations.pdf.

[ci] See Massachusetts Executive Office of Health and Human Services, MassHealth Demonstration
to Integrate Care for Dual Eligibles, Materials from Nov. 2, 2012 Open Meeting, available at http://www.mass.gov/eohhs/provider/guidelines-resources/services-planning/national-health-care-reform-plan/federal-health-care-reform-initiatives/integrating-medicare-and-medicaid/materials-from-previous-meetings.html.

[cii] Id.

[ciii] Id.

[cv] Id.

Health Law Case Brief: Commonwealth v. Dung Van Tran

By Margaret Schmid, Esq. 

Massachusetts General Laws Annotated chapter 233, section 20B establishes a privilege for communications between a patient and a psychotherapist “relative to the diagnosis or treatment of the patient’s mental or emotional condition.” The purpose of the privilege is to “protect justifiable expectations of confidentiality that people who seek psychotherapeutic help have a right to expect.”[1] In Commonwealth v. Dung Van Tran, the Supreme Judicial Court of Massachusetts (“SJC”) further clarified its interpretation of the psychotherapist-patient privilege.

In Commonwealth v. Dung Van Tran, the defendant entered the apartment inhabited by his estranged wife and children, poured gasoline in such a manner that it landed on himself, one of his children, and the children’s caretaker, and set the gasoline on fire.[2] The defendant was indicted and convicted by a Massachusetts Superior Court jury on charges of armed assault with intent to murder, aggravated assault and battery by means of a dangerous weapon, assault and battery by means of a dangerous weapon, arson of a dwelling, and armed home invasion.[3]

On appeal, the defendant argued that the trial court judge erred by admitting evidence of prior bad acts and by admitting privileged statements made by the defendant to a psychiatrist.[4] The defendant also argued that the evidence at trial was insufficient to support his convictions for armed assault with intent to murder, aggravated assault and battery by means of a dangerous weapon, assault and battery by means of a dangerous weapon, arson of a dwelling, and armed home invasion.[5]

Following a transfer of the case on its own motion, the SJCconcluded that the trial court judge did not err in admitting evidence concerning the defendant’s prior bad acts arising out of the defendant’s hostile relationship with his estranged wife.[6] The SJC held that it was within the trial court judge’s discretion to decide that the challenged evidence was relevant to establish the defendant’s motive and intent.[7]

The SJC did, however, find that the trial court erred in admitting statements made by the defendant to his psychiatrist.[8] At trial, the defense theory was one of excuse; the defendant testified that while he intended to commit suicide in his estranged wife’s apartment by self-immolation, injury to anyone other than himself was purely accidental.[9] To cast doubt upon the defendant’s stated intent and to call into question the defendant’s frame of mind, the Commonwealth argued that Tran had “essentially testified that he was ‘not thinking rationally at the time’ due to a ‘suicidal ideation,’” and thus, the psychotherapist-patient privilege should yield in the interest of justice.[10] The trial court judge found the Commonwealth’s argument to be persuasive and permitted the defendant’s psychiatrist to testify as a rebuttal witness regarding the defendant’s actual, specific intent.[11]

On appeal, the SJC disagreed and ruled that the “Commonwealth may not introduce against a defendant statements protected by the psychotherapist-patient privilege, on grounds that the defendant himself placed his mental or emotional condition in issue, unless the defendant has at some point in the proceedings asserted a defense based on his mental or emotional condition, defect, or impairment.”[12] The SJC concluded that, “lack of intent does not, without more, suffice to put in issue a defendant’s mental or emotional condition.”[13]

Finally, the SJC considered the defendant’s argument that the evidence presented at trial was insufficient to support his convictions for the charged crimes.[14] Without taking into consideration the psychiatrist’s improperly admitted testimony, the court concluded that the evidence was sufficient to support each of the convictions.[15] However, since the convictions of armed assault with intent to murder rested directly upon the psychiatrist’s improperly admitted testimony concerning the defendant’s intent, the case was remanded for a new trial on those indictments.[16] The SJC affirmed the remaining convictions.[17]

Margaret Schmid is an attorney working for 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. 


[1] Commonwealth v. Clancy, 524 N.E.2d 395, 397 (Mass. 1988).

[2] 972 N.E.2d 1, 4 (Mass. 2012).

[3]  Id. at 5.

[4]  Id.

[5]  Id.

[6]  Id. at 8; The defendant’s estranged wife testified to the defendant’s abusive behavior toward her and defendant’s threats to kill her and their children within weeks of the fire. Id. at 5.

[7] 972 N.E.2d at 13.

[8]  Id. at 12.

[9]  Id. at 11.

[10]  Id. at 10.

[11]  Id at 12.; The psychiatrist testified that the defendant stated that he intended “to take [his daughter] with him.” Id. at 10.

[12] 972 N.E.2d at 12; essentially, the mere desire to commit suicide is not enough to place one’s mental or emotional condition in issue.

[13] Id. at 11 (citing Commonwealth v. McLaughlin, 729 N.E.2d 252 (2000)).

[14] Id. at 13-14.

[15]  Id.

[16]  Id. at 17.

[17]  Id.

Health Law Case Brief: Tartarini v. Dep’t. Mental Retardation

By Devin Cohen

In Tartarini v. Dep’t. Mental Retardation, 972 N.E.2d 33 (2012), the Massachusetts Appeals Court invalidated the Department of Developmental Services’ (the “Department”) definition of “mental retardation,” as used for public benefit determinations.  The Court held that the Department’s regulatory definition was inconsistent with the statutory requirements of Massachusetts law.

Mass. Gen. Laws ch. 123B, §1 defines “mentally retarded person” as a “person who, as a result of inadequately developed or impaired intelligence, as determined by clinical authorities as described in the regulations of the department is substantially limited in his ability to learn or adapt, as judged by established standards available for the evaluation of a person’s ability to function in the community” (emphasis supplied).  The Department’s regulations defined “mental retardation” as “significantly sub-average intellectual functioning existing concurrently and related to significant limitations in adaptive functioning,” and noted that “mental retardation manifests itself before age 18” (emphasis supplied).[1] The regulations then defined “significantly sub-average intellectual functioning” to mean “an intelligence test score that is indicated by a score of 70 or below as determined from the findings of assessment using valid and comprehensive, individual measures of intelligence that are administered in standardized formats and interpreted by qualified practitioners.”[2]

Paula Tartarini, the plaintiff in this case, applied for benefits with IQ test scores of 71 at age 18, 69 at age 40, and 71 at age 42.  The Department employed its definitions of “mental retardation” and “significantly sub-average intellectual functioning,” and determined that Tartarini’s IQ score of 71 at age 18 was higher than the regulatory threshold of 70 and that her adaptive functioning did not meet the eligibility requirements of the rule.[3] Therefore, she was denied benefits.  The Superior Court judge, applying a deferential standard of review, affirmed the Department’s decision.  Tartarini brought suit against the Department alleging that it over-reached its legislative mandate by setting the definition of “significantly sub-average intellectual functioning” at an IQ of 70 or below and failing to mention any clinical authorities or established standards upon which its determination rested.

The Massachusetts Appeals Court, in an opinion authored by Judge Sullivan, reversed and remanded the Superior Court’s decision, finding that the Department’s regulations could not “by any reasonable construction be interpreted in harmony with the legislative mandate.”[4] The court held the regulations invalid on the grounds that they failed to “describe the clinical authorities upon which the clinical judgments regarding intelligence are made [for mental retardation determinations],” contrary to the statutory requirements of Mass. Gen. Laws ch. 123B, §1.[5]

The Department argued that it should be given the discretion to choose which clinical authorities to rely upon, and that the term “clinical authority” can have a dual meaning, referencing professionals either outside of the Department or inside the Department itself.  The Department claimed that it had identified relevant clinical authorities, as required by statute, by requiring internal professional experts to review benefits determinations.  Judge Sullivan responded by noting that first, the Department itself had acknowledged in regulations and memorandums to the Superior Court that “clinical authority” refers to external professionals, and second, that the Department’s wavering position on whether an IQ score of 70 was an absolute ceiling to determining eligibility in all cases undercut its reliability, and consequently, its justification for deference.[6] Judge Sullivan then concluded that regardless of whether the Department was entitled to use internal professionals as clinical authorities, the “standardized tests described in the regulations are measurements of intelligence or adaptive abilities; they are not clinical authorities.”[7]

Devin Cohen is an associate in the law firm of McDermott, Will, & Emery and focuses his practice on general health law.  Devin has been a member of the BBA since he was admitted to the Massachusetts bar in 2012.  More information about Devin’s practice and interests is available at: http://www.mwe.com/Devin-Cohen/.


[1] 115 Mass. Code Regs 2.01 (2006).  The statute additionally defined “adaptive functioning” to include “independent living/practical skills, cognitive, communication/conceptual skills, and social competence/social skills.” Tartarini, 972 N.E.2d at 35.

[2] Tartarini, 972 N.E.2d at 34.

[3] The regulations required that mental retardation manifest before age 18.  As a result, the hearing officer largely ignored Tartarini’s IQ score at the age of 40 and 42. Id. at 35.

[4] Tartarini, 972 N.E.2d at 36 (quoting Dowell v. Comm’r. of Transitional Assistance, 677 N.E.2d 213 (1997) (quoting from Berrios v. Dep’t of Pub. Welfare, 583 N.E.2d 856 (1992))).

[5] Tartarini, 972 N.E.2d at 37, fn 5.

[6] Id. at 38; The Department initially argued that an IQ of 70 did not establish a ceiling for benefits eligibility.  However, once Department experts and hearing officers applied an IQ of 70 as a ceiling for benefits eligibility, the department changed it’s contention to conform with such application.

[7] Id.