Spring 2012 Section Co-Chairs’ Corner

2012 pr i ng S 3 ssue 7, I o l u m e v

The Boston Health Law Reporter

a publication of the boston bar association health law section

Volume 7, Issue 3 Spring 2012 Section Co-Chairs’ Corner

We are pleased to present to you the Spring ing health reform in our state, Aron Boros, the 2012 Edition of the Health Law Section’s Commissioner of the Massachusetts Division Health Law Reporter. Our Health Law Report- of Health Care Finance and Policy. er provides BBA members with cutting-edge and unique perspectives on the fast-changing We also have a contribution discussing the field of health law. pending lawsuits in the U.S. Supreme Court regarding the federal Affordable Care Act. For the past several years, Massachusetts This is just a preview of what is to come, as has played a leading role in national health we will address the outcome of those Su- reform, with our models for mandated indi- preme Court lawsuits in our next edition of vidual insurance coverage, health insurance the Health Law Reporter, so stay tuned! One exchanges and other concepts winning ac- of the best ways to keep abreast of these is- ceptance and adoption at the national level. sues is through the BBA Health Law Section. This edition of the Health Law Reporter ad- We invite the involvement of anyone who dresses several of these important aspects of wishes to join our section, and welcome the health reform. addition of your time, talents and ideas. The Health Law Section has several committees We are pleased and honored to begin this is- to choose from (CLE, Communications, Mem- sue with a contribution from Governor Deval bership, Legislative Update, Social Action); Patrick. This is followed by discussion of the or you can volunteer as a participant at one extension of health insurance to legal immi- of our CLE programs or Brown Bag lunches. grants in Massachusetts, and a discussion of Your ideas for new programs, events or new some of the unique impacts of national health approaches to making our Section better are reform on Massachusetts. We also profile one welcome. of the key individuals involved in implement-

Section Co-Chairs 2011-2012

Colin J. Zick, Esq. Leslie Joseph, Esq. Foaley Hoag LLP Mount Auburn Hospital Seaport West 330 Mount Auburn Street 155 Seaport Boulevard Cambridge, MA 02138 Boston, MA 02210 (617) 499-5752 (617) 832-1275 [email protected] [email protected]

2 Spring 2012 Volume 7, Issue 3 Inside this Issue

Healthcare in Massachusetts 2012: The Way I See It Page 4

Restoring Legal Immigrants’ State Health Insurance – The Finch Cases Page 6

National Health Care Reform Comes Home: Massachusetts’ Implementation of the Affordable Care Act Page 11

Guardianship Proceedings in Massachusetts Probate Courts for Health Care Facilities: The Not-so-Uniform Probate Court Page 17

Boston University Law Class Files Affordable Care Act Amicus Briefs With the U.S. Supreme Court Page 25

Obtaining an OIG Advisory Opinion: The General Counsel’s Perspective - Interview of Daniel Orenstein, General Counsel, athenahealth, Inc. Page 29

Policymaker Profile - Interview of Áron Boros, Commissioner, Massachusetts Division of Health Care Finance & Policy Page 32

Health Law Brief: Board of Registration in Medicine v. Sturdy Memorial Hospital Page 35

Health Law Brief: Gauthier v. Director of the Office of Medicaid Page 37

Health Law Brief: U.S. ex. rel. Christopher Drennen v. Fresenius Medical Care Holdings, Inc. Page 40

Health Law Brief: Guardianship of Mary Moe Page 42 Editors Page 44 Contributors Page 45

Volume 7, Issue 3 spring 2012 3 Health Care in Massachusetts 2012: The Way I See It

by Governor Deval Patrick

This month, we celebrate the young woman named Jaclyn Mi- future generations with the ser- sixth anniversary of Massachu- chalos, a cancer survivor who got vices we have enjoyed. setts health care reform. Our the care she needed through the reforms are an expression of val- Commonwealth Connector, our Just as we in Massachusetts have ues, a codifying of our belief that version of the Exchange. She had provided the national model for health is a public good and that no affordable way to receive the universal access, I believe we are everyone deserves access to af- care she needed before Massa- on track to crack the code on cost fordable, high-quality care. chusetts’ health care reform – it control. saved her life. People no longer Like President Obama’s Afford- have to fear having their insur- We have already seen significant able Care Act, we took a hybrid ance cancelled when they get progress. Two years ago, I direct- approach, relying mainly on pri- very sick and need it most, or that ed the state’s Commissioner of vate insurance provided through a serious illness will leave them Insurance to disapprove exces- the workplace, with varying de- bankrupt. Health care reform in sive premium hikes. While an grees of public subsidy, depend- Massachusetts is helping people admittedly blunt tactic and not ing on a person’s ability to afford in profound ways. in and of itself a long-term solu- private insurance. tion, it was a necessary step to Our next challenge is slowing the galvanize the market to act. Mas- It’s working. Today, more than growth in health care premiums. sachusetts is home to an innova- 98% of Massachusetts residents This is a national problem, one tive, world-class health care com- have health care coverage, in- neither caused by our reform nor munity and they have responded cluding 99.8% of children. No unique to Massachusetts. Spend- with real solutions. other state in America can touch ing on health care makes up 18% that. More companies offer their of all spending in the United Hospitals and insurance carriers employees insurance today than States and is projected to reach have reopened their contracts before the bill was passed. More 34% by 2040 if costs continue to and cut rate increases, in some than 90% of our residents have a grow at historic rates. In recent cases by more than half. We’ve primary care physician and four years, growth in health care costs created limited network health out of five have seen their pri- has outstripped growth in GDP plans to give consumers opportu- mary care doctor in the last year. even as the share of Americans nities to get great care in neigh- Emergency room visits for prima- with health insurance has fallen. borhood settings at lower cost. ry care are down and spending on In many ways, this will be harder There are new plans coming out the uninsured and underinsured to solve than universal access. tailored for small businesses that has dropped by nearly half. But we need to solve it. promise to be as much as 20% cheaper than current rates. Our We’re healthier, too. For exam- As spending on health care pro- new Wellness Track program of- ple, because of access to screen- grams and emergency care fers a 15% rebate for certain ings, we’ve seen a 36% decrease grows, it weakens our ability to small business owners who take in cervical cancer in women. compete and slows job growth. In part in the wellness program. We budgets everywhere – families, are also ending administrative All of this while adding about 1% businesses and governments duplication by requiring common to state spending on health care. alike – spending on health care codes and forms from insurers comes at the expense of spend- and providers. And with the help Those are the numbers; but poli- ing on education and other basic of the Affordable Care Act, more cy matters most when it touches needs. Left unchecked, health and more providers are piloting people. And this policy touches care costs threaten our fiscal in- medical home or accountable people. I remember meeting a tegrity and our ability to provide care models that manage well-

4 Spring 2012 Volume 7, Issue 3 Health Care in Massachusetts 2012: The Way I See It by Governor Deval Patrick ness for the whole person, and this country, solving the health deliver both better care and more care challenge has everything to cost-effective care. do with fulfilling our generational responsibility – that old-fashioned All of this is making a difference. idea that each of us in our time In the last two years, average must do all we can to leave things premium increases have since better for those who come behind dropped from over 16% to less us. This challenge belongs to all than 2% today. Our focus now is of us, from whatever party or no on making these gains last. party. We owe it to our future to get this right. There are a number of strategies we are pursuing, including putting an end to the “fee-for-service” model wherever practicable, to stop paying for the amount of care and start paying instead for the quality of care. We need to empower doctors to coordinate patient care and to focus on wellness rather than sickness.

We are working with our health care community to accelerate this transition to innovative models for delivering health care, in which incentives are realigned to reward integrated care that emphasizes wellness and lowers costs for everyone. For example, Blue Cross Blue Shield has per- suaded some of the state’s big- gest hospitals and thousands of doctors to accept a fixed amount each month per patient rather than receive payment for each individual procedure.

In state government, by using these new tools and new approaches to how we pay for care, we will avoid nearly a billion dollars in cost increases in this fiscal year and another several hundred million more next year. Our goal is for integrated, cost-efficient care- giving to predominate throughout Massachusetts by 2015.

This is a complex challenge but we are making great progress and will be successful in the end. We have no choice. For us, and for

Volume 7, Issue 3 spring 2012 5 Restoring Legal Immigrants’ State Health Insurance – The Finch Cases

by Lorianne M. Sainsbury-Wong and Wendy E. Parmet

“In light of their particularly vul- Section 31(a) - The Fiscally Mo- federally-eligible aliens.13 The nerable status, it thus remains tivated Law legislature therefore felt that this necessary to exercise heightened class was “more expensive for the In 2006 the legislature passed vigilance to ensure that the full state to insure” than other mem- and Governor Romney signed panoply of constitutional protec- bers of Commonwealth Care.14 landmark health care reform5 tions are afforded to the Com- And, of course, immigrants could requiring nearly every state resi- monwealth’s resident aliens.”1 not vote to voice their displeasure dent to have comprehensive with their expulsion from Com- Introduction health insurance so long as it is monwealth Care. affordable.6 To support that re- Last January in Finch v. Common- quirement, the state established wealth Health Insurance Con- In order to mitigate the hardship the Commonwealth Care Health nector Authority.2 (“Finch II”), the caused by § 31(a), the legislature Insurance Program (“Common- Massachusetts Supreme Judicial appropriated $40 million to create wealth Care”) which provides slid- Court held that section 31(a) of the Commonwealth Care Bridge ing scale premium subsidies for chapter 65 of the Acts of 2009 (“§ Program (“Bridge”).15 Bridge pro- low and moderate income resi- 31(a)”),3 violated the state Consti- vided less comprehensive cover- dents who otherwise lack access tution. The decision in Finch II, age, with higher cost sharing to to insurance.7 When Common- which followed the Court’s earlier legal immigrants who had been wealth Care was established,8 Finch I4 decision determining that on Commonwealth Care prior to legal immigrants were eligible to § 31(a) discriminated on the ba- July 2009, but were excluded participate on the same basis as sis of alienage or national origin due to § 31(a). Bridge, however, other residents.9 and was subject to strict scrutiny, was never available to those who paved the way for approximately would have otherwise become In 2009 the state faced a severe 40,000 low-income legal immi- eligible for Commonwealth Care budget shortfall. Looking to save grants to receive state-subsidized after July 31, 2009, had § 31(a) money, the legislature enacted health insurance. By so ruling, not been enacted.16 For example, § 31(a),10 which was expected to the Court effectively reaffirmed legal immigrants who lost access save over $80 million by eliminat- the state’s commitment to near to employer-sponsored insurance ing Commonwealth Care for legal universal health insurance. The after July 2009 could not join immigrants who were ineligible two decisions also clarified that Bridge and were left uninsured. for federal means-tested public legal immigrants are a protected benefits under the Personal Re- Health Law Advocate’s Role class under the state Constitution sponsibility and Work Opportu- and that in Massachusetts, strict We work on behalf of Health Law nity Reconciliation Act of 1996 scrutiny is indeed strict. Advocates (“HLA”), a not-for-profit (“PRWORA”).11 This class was law firm affiliated with Health Care comprised of individuals with a This Article presents our unique For All (“HCFA”). HLA provides le- variety of immigration statuses, perspective as plaintiffs’ counsel. gal services to low–income, vul- including individuals who had We focus on the pragmatic issues nerable individuals and families green cards for less than five affecting the cases rather than that have difficulty accessing or years.12 Under PRWORA the state the constitutional questions that paying for health care. After le- did not receive partial federal re- were before the Court. gal immigrants were excluded imbursement for enrolling this from Commonwealth Care, HLA class in Commonwealth Care, al- was inundated with calls pre- though it did receive federal sup- senting similar scenarios: “I’m port under a Medicaid waiver for afraid I won’t be able to pay for enrolling U.S. citizens and other

6 Spring 2012 Volume 7, Issue 3 Restoring Legal Immigrants’ State Health Insurance – The Finch Cases by Lorianne M. Sainsbury-Wong and Wendy E. Parmet specialty care services,” or “I was also provided law students and a in challenging § 31(a) as violating denied state insurance and am legal fellow. With their help, we the state Constitution’s protec- now uninsured.” Hearing these researched the viability of a con- tions against discrimination. concerns, we became convinced stitutional claim against § 31(a). we needed to do something. We As our research progressed, we Once we decided to bring a also believed that § 31(a) un- became convinced that § 31(a) state constitutional challenge, dermined the promise of univer- was unconstitutional. numerous questions remained, sal access to care made by the including the identity of class state’s health insurance reform. During this period we also spoke representatives. Although many If legal immigrants could be de- with immigrant advocates around legal immigrants sought our help, nied health care when times got the country. Some believed that some were reluctant to be class tough, so could other politically § 31(a) would withstand judicial representatives. Given the anti- vulnerable groups. In this way, scrutiny on the basis of Doe v. immigration movement that was the fundamental commitment Commissioner of Transitional sweeping the country (for exam- that the state made in 2006 was Assistance.17 In Doe, the Su- ple, Arizona was about to pass broken but not irretrievably lost. preme Judicial Court appeared to the nation’s harshest anti-immi- affirm a state law excluding the gration law),19 their hesitancy was Litigation was not our first choice. same class affected by § 31(a) understandable. We knew it would be time con- from the state’s federally-created suming and expensive. Constitu- transitional assistance program Eventually, four clients20 who tional challenges to state laws are and establishing a separate cash were harmed by § 31(a) agreed never easy; courts are reluctant program for that class which con- to be class representatives. Dor- to second-guess the legislature’s tained a six month durational res- othy Ann Finch is a permanent fiscal decisions. Our clients also idency requirement.18 However, resident who had to stop working preferred less adversarial meth- as we studied Doe, we realized it due to a medical condition. Al- ods. Thus in the fall of 2009, supported our position. The dura- though initially approved for Com- along with HCFA, HLA contacted tional residency requirement was monwealth Care, she was denied other organizations committed to upheld precisely because the pro- coverage because of § 31(a). health reform, local health care gram to which it was attached did Lacking insurance, she incurred providers, and community orga- not discriminate against legal im- medical debt and faced a collec- nizations. In addition, HCFA met migrants; it benefitted them. The tion action. Roxanne S. Prince is a with legislators. Although some immigrants’ exclusion from the single parent with a family-based expressed concern for the well- transitional assistance program, visa. Her employer did not offer being of the excluded class, it however, was not actually before health insurance. She had been soon became apparent that the the Court. In dicta the Court enrolled in Commonwealth Care legislature would not revisit its suggested that legal immigrants before being placed in Bridge. decision. We therefore began to were a protected class in Massa- As a result, she lost the conti- focus on litigation. chusetts and that their exclusion nuity of care with her providers. from the cash assistance pro- Another plaintiff, a domestic vio- As a small not-for-profit, HLA has gram was constitutional only be- lence victim, is a political asylum very limited financial resources. cause as a federal means-tested applicant and mother of two U.S. But it does have a dedicated staff public benefit, the state was ob- citizen children. In 2006, she and a rich network of committed ligated to follow PRWORA. Com- started receiving Commonwealth volunteers. Chief among the lat- paring Doe with § 31(a), we be- Care. When § 31(a) struck, she ter was HLA’s Volunteer Legal Ad- lieved that Commonwealth Care was placed in Bridge where she visor, Stephen Rosenfeld. Invalu- was not a federal public benefit was unable to access culturally able support was also provided by and the state was not required and linguistically appropriate Lauren Barnes of Hagens Berman to adhere to PRWORA’s eligibility care. A fourth class representa- Sobel Shapiro LLP, and Jack Cush- requirements. Thus, the very fac- tive had been living and working man, who was initially practicing tors that led the Court to find for in the U.S. for more than eight solo but later joined Stern Shap- the state in Doe would lead the years under a visa based on her iro Weissberg & Garin LLP. North- Court to find for our clients. As a employer’s petition for an alien eastern University School of Law result, we decided to rely on Doe worker. She later became a law-

Volume 7, Issue 3 spring 2012 7 Restoring Legal Immigrants’ State Health Insurance – The Finch Cases by Lorianne M. Sainsbury-Wong and Wendy E. Parmet

ful permanent resident but held issued by a trial court was likely to case should be sent to Superior her green card for less than five be appealed, and possibly stayed, Court. On July 21, 2010, Justice years. Because her employer did pending appeal. After consulta- Cordy reported four questions of not offer insurance, she was en- tion with our clients, we therefore law to the Full Court but also re- rolled in Commonwealth Care be- decided that initial review by the quired the parties to agree upon fore being transferred to Bridge. full Supreme Judicial Court of- a statement of material facts When she was diagnosed with fered the best chance of speedy about the funding and operation cancer, she had difficulty access- relief. On February 25, 2010, of Commonwealth Care pre- and ing oncologists and related pro- we filed a declaratory judgment post-§ 31(a). During the sum- viders in her area. The latter two action before the Single Justice mer of 2010, we developed that class representatives insisted on (Cordy, J.) asking him to report statement of material facts with 23 anonymity because they feared the case to the Full Court. In the Connector Authority through retaliatory harm to themselves or addition, because we challenged its legal counsel, Carl Valvo, Cos- 21 their children. the constitutionality of a legisla- grove, Eisenberg & Kiley, P.C., and tive appropriation, we served the Ken Salinger, the Massachusetts 24 As in any litigation, we also had to Attorney General, who had the Attorney General’s Office, which consider who to sue, the specific right to intervene. had intervened. claims we would raise, and where we would seek relief. We deter- Finch I – On and Off the Path The four questions reported fo- mined the appropriate defen- to the Massachusetts Su- cused on the appropriate stan- dants were the Commonwealth preme Judicial Court dard of review for judging the Health Insurance Connector Au- constitutionality of § 31(a). Two thority (“Connector Authority”), As we probably should have antic- issues were critical: (1) are legal which administers Common- ipated, our path to the Supreme aliens a protected class under the wealth Care, and its then Execu- Judicial Court was not swift. After state Constitution?; and (2) even tive Director, Jon Kingsdale. De- filing its answer, the Connector if they are, should the less strin- ciding upon the specific claims Authority removed the case to fed- gent rational basis test be ap- required more analysis. As noted eral court. Although we could plied because § 31(a) borrowed above, because we believed that have remained in federal court, its classification from PRWORA? the case concerned a program we believed that federal litigation We began working on our brief. unique to Massachusetts and would be delayed by a likely cer- that Doe supported our clients’ tification of questions to the Su- HLA’s arguments were quite sim- claims, we focused on the state preme Judicial Court and eventu- ple. First, the Massachusetts Constitution’s commitment to al appeal to the First Circuit. On Constitution either under Article equal protection. However, we the other hand, if we dropped our 106’s explicit protection against believed that § 31(a) also violat- federal claims, thereby forfeiting discrimination on the basis of na- 27 ed the federal Constitution and attorneys’ fees, the federal court tional origin, or under general knew that federal law allows for would have been able to exercise principles of equal protection, reasonable attorneys’ fees to the judicial discretion to return the recognizes legal immigrants as prevailing party.22 We therefore case to state court. Concluding a discrete and insular, suspect added a federal civil rights claim. the latter was in our clients’ best class. Second, PRWORA does interests, we exercised our right not require the state to discrimi- The choice of forum and relief to delete the federal claims25 and nate in the provision of Common- sought proved to be challenging. asked Judge Young to remand the wealth Care. As a result, under We considered filing in a superior case to Justice Cordy. 26 In June Doe, the discrimination effected court, asking for a temporary re- 2010, he agreed. by § 31(a) could not be saved by straining order and preliminary PRWORA; it had to be subject to injunction. Doing so might have Once the case returned to Justice strict scrutiny. provided our clients relatively Cordy, we requested a reservation swift relief, but courts are gener- and report to the Full Court. In In making these arguments, we ally reluctant to issue preliminary response, the Connector Author- were generously supported by injunctions against public enti- ity argued that there were unre- several amicus briefs28 that ex- ties. We also knew that any order solved factual issues so that the panded upon our arguments and

8 Spring 2012 Volume 7, Issue 3 Restoring Legal Immigrants’ State Health Insurance – The Finch Cases by Lorianne M. Sainsbury-Wong and Wendy E. Parmet offered valuable background in- to further a compelling state in- was narrowly tailored to further formation to the Court. terest in advancing federal immi- the self-sufficiency of legal aliens gration policies. Specifically, the in the Commonwealth. The mere Although we had hoped for a defendants relied on PRWORA’s fact that § 31(a) referenced speedy ruling, that was not to be. preamble which identifies federal PRWORA did not justify the dis- However, on May 6, 2011, in a 3-2 policy as promoting the self-suf- crimination against plaintiff class decision, the Supreme Judicial ficiency of aliens, and the denial members. According to the Court, Court held that § 31(a) discrimi- of public benefits so that they do “the conclusory method does not nated on the basis of alienage or not serve as an incentive to im- satisfy strict scrutiny.”39 national origin and was subject to migration.36 Defendants also Conclusion strict scrutiny.29 Writing for the argued that the merits of this de- Court, Justice Spina rejected our fense should be decided by the In March 2012, the Connector argument that legal immigrants Full Court. Justice Cordy agreed Authority began restoring state- were protected by the national or- that the case should be reported subsidized Commonwealth Care igin provision in Article 106.30 He to the Full Court. So in the fall coverage to our plaintiff class. agreed, however, that legal immi- of 2011, more than two years af- Complete restoration is expected grants were a suspect class under ter our clients had lost Common- as of May 1, 2012.40 Because of the state Constitution.31 He also wealth Care, we were back before the Massachusetts Constitution found that Commonwealth Care the Supreme Judicial Court. Once and strict judicial scrutiny, our cli- is a state public benefit and that again, we were supported by pow- ents are now able to receive the Congress was indifferent about erful amicus curiae briefs.37 state health insurance they were whether it included or excluded wrongfully denied. Once again legal immigrants.32 As a result, Our arguments were straightfor- Massachusetts has lived up to the state’s actions would be sub- ward. First, if strict scrutiny was the commitment of equality in its jected to strict judicial scrutiny.33 to be strict, the Court had to con- Constitution and the promise of The Court ordered the case be sider the actual, not a hypotheti- universal health insurance made remanded to the Single Justice to cal motive for § 31(a). If it did so, in 2006. determine whether § 31(a) could the answer would be clear: the ap- survive strict scrutiny. propriation was designed simply (Endnotes) to save money. Second, further- Finch I - The Restoration of 1 Finch v. Commonwealth Health Ins. Coverage Nears ing national immigration policy is Connector Auth., 459 Mass. 655, 675 not a compelling state interest. (2011) (declining to apply the rational basis After receiving the Court’s deci- Finally, even if furthering national review of aliens excluded from political Finch I functions to the plaintiff class of legal sion in , our clients were immigration policy were an actual immigrants)(“Finch I”). grateful. In its opinion, the Court purpose for § 31(a), and even if it 2 Finch v. Commonwealth Health recited the well-settled rule that a were a compelling state interest, Ins. Connector Auth., 461 Mass. 232 statute cannot survive strict scru- the appropriations bill was not (2012)(Finch II). 3 An Act Making Appropriations tiny unless it is “narrowly tailored narrowly tailored to further that for the Fiscal Year 2010 to Provide to further a legitimate and com- interest. for Supplementing Certain Existing pelling governmental interest and Appropriations and for Certain Other [is] the least restrictive means On January 5, 2012, in a unani- Activities and Projects, 2009 Mass. Acts ch. 65, § 31(a). The legislative available to vindicate that inter- mous opinion written by Justice appropriation provides that individuals est.”34 Because saving money is Cordy, the Supreme Judicial Court eligible for Commonwealth Care “shall not a compelling state interest35 ruled that § 31(a) was unconsti- not include persons who cannot receive and the state had always justi- tutional.38 The Court noted that federally-funded benefits, under sections 401, 402, and 403 of the Personal fied § 31(a) as a fiscal measure, the state’s articulated purpose Responsibility and Work Opportunity we assumed that Justice Cordy for its discrimination against our Reconciliation Act of 1996.” As part would find § 31(a) unconstitution- class of legal immigrants was fis- of an outside appropriations bill, § 31(a) al. On May 23, 2011, we filed a cal; indeed, the record contained was in effect for only one year. In 2010 and 2011 the legislature reenacted the motion for partial summary judg- no evidence that the legislature exclusion. 2010 Mass. Acts ch. 131, § ment. We were surprised by what thought about national immigra- 136; 2011 Mass. Acts ch. 68, § 166. In happened next. The defendants tion policy, nor had the legisla- the discussion that follows, references to argued that § 31(a) was designed ture considered whether § 31(a) § 31(a) should be read to include, where

Volume 7, Issue 3 spring 2012 9 Restoring Legal Immigrants’ State Health Insurance – The Finch Cases by Lorianne M. Sainsbury-Wong and Wendy E. Parmet

appropriate, references to these subsequent distinction between subgroups of aliens. (represented by Anthony D. Mirenda, Ara appropriations. If that classification were a suspect one B. Gershengorn, Thomas Ayres, Katie 4 Finch I, 459 Mass. at 655. such as race, gender, or national origin, we Marie Perry, and John Reinstein). 5 An Act Providing Access to Affordable, would apply a strict scrutiny analysis.”) 29 459 Mass. at 675. Quality, Accountable Health Care, 2006 18 Id. 30 Id. at 663. Justice Duffly disagreed with Mass. Acts ch. 58, § 12. See also M.G.L. 19 The Arizona law, S.B. 1070, 49th Leg., this conclusion. Id. at 690 (Duffly, J., ch. 111M, § 2 (2006). 2d Reg. Sess. (Ariz. 2010), modified by concurring in part and dissenting in part). 6 Id. H.B. 2162 (Ariz. 2010), has been the 31 Id. at 675-77. 7 Id. subject of federal challenges, with the 32 Id.. 8 Commonwealth Care was created distinct most recent decision issued by the Ninth 33 Id. at 677-78. Not all the justices from MassHealth, which is defined as Circuit in U.S. v. Arizona, 641 F.3d 339 agreed. Concurring in part and dissenting a welfare program pursuant to federal (9th Cir. 2011), which has subsequently in part, Justice Gants, joined by Justice law. See M.G.L. ch. 118E, § 9 and § 9A been appealed and is scheduled to be heard Cordy, argued that § 31(a) was consistent (2007). In fact, in order to be eligible for before the U.S. Supreme Court on April 25, with Congress policy in PRWORA and that Commonwealth Care, a resident must not 2012. See Arizona v. U.S. no. 11-182. as a result, the rational basis test should be be eligible for MassHealth. M.G.L. ch. 20 After filing the complaint, HLA was applied. Id. at 684-86. 118H, § 3(a). contacted by other legal immigrants who 34 Id. at 669. 9 For example, a ‘[r]esident’ eligible offered to provide further testimonies 35 Graham v. Richardson, 403 U.S. 365, for Commonwealth Care was defined or affidavits in support of class action 375 (1971). under the law as “a person living in the certification. See Chelsea Conaboy and 36 See 8 U.S.C. § 1601. PRWORA, commonwealth, . . . including a qualified Martin Finucane, SJC Orders State to however, does permit states to exercise alien, as defined by section 431 of Cover Legal Immigrants, Boston Globe, independent decision-making with respect the Personal Responsibility and Work Jan. 6, 2012, at 1.)(interviewing the parents to alien eligibility for state public benefits Opportunity Reconciliation Act of 1996 of legal immigrant Samuel Goncalves). which may be provided at the state’s cost. . . . or a person who is not a citizen of 21 HLA succeeded in obtaining a Court 8 U.S.C. §§ 1621-1624. the United States but who is otherwise Order allowing two class representatives to 37 The following organizations permanently residing in the United States proceed under the pseudonyms Jane Doe 1 submitted amici curiae briefs on behalf under color of law; provided, however, and Jane Doe 2. of the plaintiffs in Finch II: the Asian that the person has not moved into the 22 42 U.S.C. § 1988. Pacific American Legal Center et al. commonwealth for the sole purpose of 23 This process is permitted pursuant to (represented by Doreena Wong, Justin securing health insurance under this chapter M.G.L. ch. 214, § 1 and M.G.L. ch. 231A, Ma, Daniel S. Floyd, Minae Yu, Jordan . . .” M.G.L. ch. 118H, § 1. See also § 1. Bekier, Christopher Punongbayan, and M.G.L. ch. 118H, § 3; 956 C.M.R. 3.04 24 Plaintiffs gave notice to the Attorney Kimberly Lewis, Andrew Kang, Miriam (2008); 956 C.M.R. 3.09 (2008). General initially pursuant to M.G.L. ch. Yeung, Erin E. Oshiro, Jessica S. Chia, 10 See An Act Making Appropriations 231A, § 8 and subsequently under Fed .R. and Priscilla Huang, and Jacinta S. Ma); for the Fiscal Year 2010 to Provide Civ. P. 5.1. the Massachusetts Law Reform Institute, for Supplementing Certain Existing 25 Fed .R. Civ. P. 15(a)(1). See Carnegie Health Care For All and the Massachusetts Appropriations and for Certain Other Mellon Univ. v. Cohill, 484 U.S. 343 Immigrant and Refugee Advocacy Activities and Projects, 2009 Mass. Acts (1988)(a remand is within the discretion Coalition (represented by Victoria Pulos); 65, § 31(a). of the judger and is the preferred course of the American Civil Liberties Union of 11 Personal Responsibility and Work action when no federal claims remain and Massachusetts (represented by Ara B. Opportunity Reconciliation Act of 1996 the federal court not invested substantial Gershengorn, Katie Marie Perry, John (PRWORA), Pub. L. 104-193, 110 Stat. resources on the dispute.) Reinstein, and Laura Rotolo); and the 2105 (1996). 26 In hindsight it is quite plausible that we Chinese Progressive Association et al. 12 8 U.S.C. § 1613 (1996). would have succeeded on the federal claim; (represented by Sarah F. Anderson, Nancy 13 Under PRWORA certain aliens are however, our clients’ needs directed us to a J. Lorenz, and Jan M. Stiefel). not eligible for federal welfare benefits. more expedient process in state court. 38 461 Mass. at 238-42. States may voluntarily provide benefits for 27 Mass. Const. art. , as amended by Mass. 39 Id. at 244. alien residents but may not receive federal Const. amend. art. 106. 40 In addition, under the Patient Protection reimbursement. See Pub. L. 104-193, §§ 28 The following organizations submitted and Affordable Care Act, Pub. L. No. 401-403 (1996) (codified as amended at 8 amici curiae briefs on behalf of the 111-148, §§ 1312(f), 1411, 124 Stat. 119, U.S.C. § 1601 and 8 U.S.C. §§ 1611-1612 plaintiffs in Finch I: the Irish Immigration 183-84, 224-26 (2010), in 2014, lawfully (1996)). Center (represented by Mary M. Calkins, residing individuals, such as our plaintiff 14 461 Mass. at 239-40 (quoting Senator W. Keith Robinson, and Vid Mohan–Ram, class, will be eligible for federal subsidies Steven Panagiotakos). and Michael J. Tuteur ); the Asian Pacific to support the purchase of health insurance 15 See 2009 Mass. Acts 65, § 31(b). American Legal Center, Asian American under the state exchanges, regardless of 16 459 Mass. at 660 n.5 (noting that legal Justice Center, and Asian American PRWORA. immigrants whose household income Institute (represented by Julie A. Su, declined after August 31, 2009 to at or Justin Ma, Daniel S. Floyd, Elaine Ki below 300% of the Federal Poverty Level Jin Kim, Minae Yu, Meredith Higashi, were left without state coverage.) and Ami Gandhi); Massachusetts Law 17 Doe v. Commissioner of Transitional Reform Institute, Health Care For All Assistance, 437 Mass. 521, 533-34 and the Massachusetts Immigrant and (2002)(concluding that the appropriate Refugee Advocacy Coalition (represented standard of review “depends on the nature by Victoria Pulos); and the American of the classification that creates the Civil Liberties Union of Massachusetts

10 Spring 2012 Volume 7, Issue 3 by Michael T. Caljouw and Sarah G. Gordon

Introduction dized private insurance programs, the following article examines five 4 On March 23, 2010, President and insurance market reforms. key features of ACA that must be Obama signed the Patient Protec- This expansion of coverage was addressed during Massachusetts tion and Affordable Care Act (here- financed through an individual implementation: inafter the “ACA”).1 The law has mandate to purchase health cover- 1. The Individual Mandate to been characterized as the most age, redirected Uncompensated Purchase Health Insurance sweeping reform act since the Care Pool and Disproportionate Coverage; implementation of Medicare and Share Hospital funds, and require- Medicaid. ACA goes beyond these ments that employers either make 2. Employer Responsibilities; historical areas of federal involve- a “fair share contribution” to their employees’ health insurance or 3. Individual and Employer Subsi- ment in health care and impacts dies; how insurance products are sold pay a “free rider surcharge.” Since to employers and consumers. enactment of Massachusetts 4. Essential Health Benefits and health care reform, over 98% of Minimum Credible Coverage At a very basic level, ACA increases the Commonwealth’s residents Requirements; and have health insurance coverage, access to health insurance cover- 5. Medicaid Expansions and Basic including 99.8% of children.2 age through broadened Medicaid Health Plan Coverage Options. eligibility, the Children’s Health ACA follows the Massachusetts 1. The Individual Mandate Insurance Program (“CHIP”), and model in many important ways. subsidized premium assistance for While many have noted that The major expansion and reform certain lower-income individuals. both pieces of legislation include provisions under ACA occur in These costs are intended to be individual mandates to purchase 2014. Beginning that year, ACA met by increased insurer, em- health insurance, there are many mandates that individuals must ployer, and pharmaceutical taxes; other similarities, ranging from purchase insurance coverage if reduced Medicare and Medicaid insurance exchange structures to they can afford it – meaning that spending; and other revenues. new rules for insurers and employ- there are affordability exemptions The law also includes important from ACA’s individual mandate ers. Despite these thematic paral- 5 measures designed to enhance lels, Massachusetts policymakers based on limitations in income. the delivery and quality of health have much work to do implement- Otherwise, a qualifying individual care. While some provisions of ing the thousands of pages of must demonstrate that cover- ACA became effective shortly after federal laws and regulations within age exists (through either private passage in 2010, most provisions an existing state framework.3 or public insurance programs), do not take effect until 2014, and Harmonizing the two laws will be or face a federal penalty. This others will be phased in over the a painstaking, multi-year process penalty gradually increases over next few years. involving every major health care a three-year period, from a maxi- stakeholder: Massachusetts and mum of $285 per family (or 1% Four years earlier, in the Spring of federal governments, employers, of family income, whichever is 2006, Massachusetts enacted its insurers, consumers and health greater) in 2014 to a maximum of own version of health care reform care providers. While some states $2,085 per family (or 2.5% of fam- when then-Governor Mitt Romney have chosen to challenge ACA pro- ily income, whichever is greater) in signed Chapter 58 of the Acts of visions, Massachusetts policymak- 2016. The penalty will be prorated 2006 (“Chapter 58”). Chapter ers and stakeholders have instead by the number of months without 58 increased health insurance already commenced the imple- coverage, and post-2016 penalty coverage through a combination mentation process. Accordingly, amounts will increase annually by of Medicaid expansions, subsi- the cost of living.

Volume 7, Issue 3 spring 2012 11 National Health Care Reform Comes Home: Massachusetts’ Implementation of the Affordable Care Act by Michael T. Caljouw and Sarah G. Gordon

Chapter 58 includes a conceptu- action is likely required to prevent o Percent of Full-Time Employees ally similar mandate. Massachu- uninsured Massachusetts resi- Enrolled: Are at least 25% of setts residents are required to dents from facing both state and “full-time” employees enrolled obtain health insurance coverage federal penalties.6 To illustrate in a qualifying employer-spon- only if affordable coverage is avail- the real conflict between the laws, sored health plan? able. The Massachusetts Health in 2016 and beyond, uninsured o Premium Contribution Levels: Connector (the “Health Connec- people who earn less than 250% Does the business pay at least tor”) annually sets a schedule of of FPL are subject to higher penal- 33% of the cost of individual affordability based on income lev- ties under ACA than under Chapter 7 coverage for its “full-time” els and defines the minimum level 58. Meanwhile, individuals with employees who have been of required or creditable cover- more moderate income levels are employed for at least ninety age. The affordability schedule is penalized less under ACA than days?10 progressive, with the percentages under Chapter 58. Indeed, unless of income people are expected reconciled, uninsured individuals As of 2009, Massachusetts busi- to pay for coverage rising over may face both state and federal nesses with fifty or fewer employ- time. Individuals with incomes mandate penalties for the same ees needed to meet only one of under 150% of the federal poverty period of time. these two prongs. Larger employ- level (“FPL”) and those with valid ers (those with at least fifty-one 2. Employer Responsibilities religious exemptions are exempt employees) automatically comply from the Massachusetts individual ACA, like Chapter 58, relies on the if 75% of their “full-time” employ- mandate. Otherwise, Chapter central premise that the major- ees are enrolled in a qualifying 58 establishes fiscal penalties ity of individuals will obtain their employer-sponsored health plan. for qualifying adults who do not insurance through employer-based Larger employers with less than purchase health insurance that coverage. Accordingly, employer 75% enrollment must meet both meets the standards of minimum responsibilities are central to the prongs of the test to be exempt creditable coverage. Penalties success of both statutes. from the assessment. Chapter are assessed through the Massa- 58 also establishes a Free Rider chusetts Department of Revenue Under ACA, businesses with fifty Surcharge on businesses.11 This tax filing process and are based or more employees must offer surcharge is different from the on the affordability and premium coverage that meets minimum state’s fair share contribution. schedules. As a general matter, standards beginning in 2014, or 8 The surcharge is applied when a penalties are lowest for those face two types of penalties. First, qualifying employer (with eleven or ages 18–26 and for anyone with businesses that do not offer cover- more employees) does not arrange income below 300% of FPL. While age are fined $2,000 per full-time for a pre-tax payroll deduction sys- the penalty was phased in over employee (after the first thirty em- tem for health insurance and has time, the penalty for non-compli- ployees). Second, businesses that employees who receive care paid ance can now reach up to half the offer coverage to employees who for by the Health Safety Net.12 cost of the lowest available yearly receive a public subsidy based on premium. affordability are fined the lesser Massachusetts officials are cur- of $3,000 per employee receiving rently working to reconcile many In light of the operational dif- the subsidy or $2,000 multiplied differences between the state and ferences between the Massa- by the total number of employees. federal health care reform laws chusetts and federal mandates, relating to employer obligations. Massachusetts policymakers Chapter 58 establishes a sepa- At a basic level, ACA imposes sig- must resolve certain key issues. rate set of standards, requiring nificantly higher penalties but also First, different income exemp- that businesses with more than exempts more businesses. ACA tion standards mean that there ten full-time-equivalent employ- exempts all small employers (with are different standards of who is ees bear a “fair and reasonable” fifty and fewer employees) while subject to being penalized. There contribution to the insurance the state law applies to business- is also conflict in the amount of premiums of their employees. The es with eleven or more full-time the penalty and how it is phased annual assessment is $295 per employees. The state and the in over time. Because the federal employee (verified by prorated 9 federal laws also use different defi- individual mandate has somewhat quarterly filings). Compliance nitions of “full-time” employment.13 different provisions and does not with the so-called “fair share con- Another key difference between appear to preempt the state man- tribution” is determined through the state and federal rules is that date, Massachusetts legislative two tests: under ACA, full-time equivalent

12 Spring 2012 Volume 7, Issue 3 National Health Care Reform Comes Home: Massachusetts’ Implementation of the Affordable Care Act by Michael T. Caljouw and Sarah G. Gordon employees (FTEs) are used only to While ACA grants the Secretary of non-Medicaid HMO operating in determine if the employer has a HHS broad authority to define the the state. 23 sufficient number of employees to EHB requirements, ACA establish- be subject to the coverage require- es ten categories of benefits that HHS intends to assess the bench- ments while Chapter 58 uses must be included within any final mark plan selection process and employee thresholds to calculate EHB rule. These include emer- is expected to issue subsequent the assessment as well. Since the gency services, maternity care, guidance for EHB for years 2016 federal law becomes effective in prescription drugs, preventive care and beyond. This later approach 2014, Massachusetts legislative and pediatric services.19 ACA also may ultimately exclude some state action is needed in 2012 or early caps total annual out-of-pocket mandated benefits from inclusion 2013 to allow adequate time for costs for these plans (equal to the in the EHB package. administrative agency and busi- out-of-pocket limit in Health Sav- ness operational compliance. ings Account qualified plans), and The interplay between state and sets annual limits on deductibles federal mandated benefits and the 3. Essential Health Benefits and for employer-sponsored health state selection of a benchmark Massachusetts Minimum plans.20 plan will be key implementation Creditable Coverage issues. Currently, Massachusetts ACA, like Chapter 58, sets baseline has 58 mandated benefit laws on requirements in order to ensure the books, none of which are pre- B. Benchmark Plans and State 24 that individuals receive access empted by ACA, and ACA requires Implementation of EHB to (and health insurers offer) a states to defray the costs associat- comprehensive set of benefits and In order to provide the states with ed with coverage of any state-man- services. The federal baseline cov- flexibility to implement ACA EHB dated benefit that is in excess of provisions, HHS issued a bulletin the EHB for individuals enrolled in erage requirements are called Es- 25 sential Health Benefits (“EHB”),14 on December 16, 2011.21 ACA a qualified health plan (“QHP”). while the state baseline coverage requires that the scope of EHB At the same time, of the plans that requirements are called Minimum benefits be equal to the scope of could potentially be selected as Creditable Coverage (“MCC”).15 benefits covered under a typical the “benchmark” plan in Mas- While both laws set forth basic small group employer plan avail- sachusetts, only the health plans requirements for coverage of ben- able in the state. Rather than offered in the small group market efits and services as well as cost set forth a prescriptive regulatory and by HMOs are required to cover sharing, the laws differ in both scheme for the initial years of all of the state mandated benefits. scope and applicability.16 implementation (2014 and 2015), This is important because, if the HHS offers states broad flexibility state selects one of the State A. Federal Essential Health in selecting a “benchmark” plan, Employee Health Benefit plans or Benefits (“EHB”) which will define the benefits (but the FEHBP, only those mandated The federal EHB requirement not the cost-sharing requirements) benefits that are included as part applies to all individual and small that each individual and small of that “benchmark” plan become group coverage offered in a state’s group health plan must provide.22 part of the EHB package. The commercial health insurance The bulletin provides four alterna- state would then become respon- market. Fully insured large group tive benchmark plan options: sible for funding coverage associ- health plans, grandfathered health ated with the remaining benefits plans, and certain self-insured o The largest plan by enrollment mandated by state law. Finally, health plans17 are exempt from the in any of the three largest small the guidance further clarifies requirements to provide EHB. group insurance products in the that if a state enacts additional state’s small group market; mandated benefit legislation after Health plans subject to the federal December 31, 2011, and those EHB requirement must provide an o Any of the largest three state new mandated benefits are not in- “Essential Benefit Package” (which employee health benefit plans cluded as a covered benefit within must include EHB as defined by by enrollment; the benchmark plan, the state is the Secretary of Health and Hu- responsible for the cost of cover- o Any of the largest three national man Services (“HHS”)), annual ing those benefits as well. Federal Employee Health Ben- limitations on cost sharing, and of- efits Plan (“FEHBP”) options by fer coverage in one of the “tiers” – As part of the state implementa- enrollment; and Bronze, Silver, Gold, or Platinum — tion activities in Massachusetts, 18 the Division of Insurance and the available through the exchange. o The largest insured commercial

Volume 7, Issue 3 spring 2012 13 National Health Care Reform Comes Home: Massachusetts’ Implementation of the Affordable Care Act by Michael T. Caljouw and Sarah G. Gordon

Health Connector are examining in Massachusetts provide cover- sections discuss the intersection the implications of each potential age that is consistent with these between the Federal assistance benchmark plan on the state’s requirements. provided to individuals and em- commercial market. The Division ployers and the subsidies provided By contrast, EHBs apply to non- of Insurance is collecting data through Massachusetts health grandfathered plans in the indi- on the benefits and services care reform. vidual and small group markets provided by health plans within both inside and outside of the A. Individual Premium Credits each category. While meaning- Exchanges, Medicaid benchmark ful similarities exist between the ACA provides individuals without and benchmark-equivalent, and Ba- health benefit plans offered in the access to Medicare, Medicaid, or sic Health Programs.29 Large group small group and the largest HMO affordable employer-sponsored (both fully- and self-insured), and plan, there are important differ- insurance the opportunity to grandfathered health plans in exis- ences between these offerings purchase coverage through the tence as of the effective date of the and the state employee health Exchange with premium and cost federal law, are exempted from the benefit plans in terms of covered sharing assistance, provided that EHB requirements. While Massa- 30 benefits.26 The most striking dif- certain income criteria are met. chusetts law does not reach those ferences however are between the The ACA premium credit program employers subject to ERISA, most FEHBP and the state plans. The provides refundable and advance- Massachusetts employers never- FEHBP does not cover some of the able premium credits to eligible in- theless offer coverage that enables state’s mandated health benefits, dividuals and families with house- their employees to comply with the including those mandates that are hold incomes between 100% and requirements of the Massachusetts the most expensive.27 The federal 400% of FPL. Individuals seeking mandate. There is some concern guidance recommends that states premium credits are restricted that if Massachusetts eliminates its select a benchmark plan by the to purchasing a QHP through the own requirements for comprehen- third quarter of 2012, and Mas- state’s exchange. At the time sive coverage, individuals employed sachusetts is expected to make its an individual seeking assistance by large employers will lose access decision by this fall. enrolls in coverage through the to MCC-compliant coverage. state exchange, the exchange is C. EHB and Minimum Creditable required to determine the indi- Coverage (“MCC”) Massachusetts individual mandate vidual’s eligibility for advanced tax and MCC requirements are not credit.31 The expected individual Finally, many questions have preempted by ACA. Massachusetts been raised regarding the in- premium contribution will be set is therefore permitted to continue on a sliding scale, ranging from tersection between the federal to enforce its own individual man- EHB requirements and Chapter 2% of income for individuals earn- date and baseline requirements for ing up to 122% FPL and 9.5% of 58’s requirement that individuals coverage. This will continue to be purchase coverage meeting MCC income for individuals earning an important discussion during the between 300%-400% FPL. requirements - and whether Mas- forthcoming year as the state con- sachusetts will eliminate or modify siders legislation designed to bring ACA makes the premium credit ad- Chapter 58’s MCC rule. The Board the state into compliance with ACA. vanceable and paid directly to the of the Health Connector has health plan in which the individual promulgated regulations requiring 4. Individual and Employer Subsidies enrolls. However, the state ex- that an MCC-compliant health plan ACA expands access to health change is required to annually rec- cover a broad range of medical insurance coverage through the oncile these advanced payments services, include limits on the out- establishment of premium credits, against the actual credit for the of-pocket costs for individuals and available to both individuals and to taxable year. Unlike the structure families, and not include limits or small employers purchasing cover- of the Massachusetts premium caps on certain benefits.28 Unlike age through the exchange. Massa- assistance models, individuals ob- EHB, the Massachusetts rules gov- chusetts health care reform took a taining ACA premium credits could ern out-of-pocket spending such similar approach through subsidies receive additional credits over the as deductibles and co-payments, for individuals below a set income course of the year should their and set a basic actuarial value threshold who purchase coverage income status change (through as a floor for minimum cover- through the Health Connector; a loss of employment or wages); age. While the requirements for however, Massachusetts did not conversely, such a scheme could obtaining MCC-compliant health provide corresponding subsidies potentially result in individuals care coverage apply to individu- for small employers. The upcoming owing additional income tax li- als, health plans writing coverage

14 Spring 2012 Volume 7, Issue 3 National Health Care Reform Comes Home: Massachusetts’ Implementation of the Affordable Care Act by Michael T. Caljouw and Sarah G. Gordon

ability should their income status ees is contained in subsequent subsidies for small employers improve mid-year.32 In addition to sections. with between two and fifty FTEs, premium credits, ACA provides provided that the employer offers cost-sharing subsidies to eligible State fiscal considerations may comprehensive coverage to em- individuals and families to assist resolve many of the questions ployees and contributes at least in payment of an individual or concerning restructuring state 50% of the costs of the premi- family’s out-of-pocket costs, in- programs, and the Commonwealth ums.36 MassHealth is authorized cluding co-payments and deduct- is in the process of conducting an to provide as much as $1,000 per ibles. analysis of different options for year for each qualified employee.37 restructuring the programs and In Massachusetts, the most the impact on the state budget go- An open question remains as to significant aspect of Chapter 58 ing forward. However, if the Health the fate of the Insurance Part- was arguably the eligibility expan- Connector does not provide for nership Program, given the new sion of the publicly-subsidized additional “wrap” subsidies, Com- insurance tax credits made avail- MassHealth and the establish- monwealth Care enrollees could able by ACA for small businesses ment of the publicly-subsidized have to pay higher premiums and that are in effect today. Much will Commonwealth Care program. out-of-pocket expenses than they be contingent upon the status of Commonwealth Care provides in- do now. the Massachusetts Section 1115 dividuals earning up to 300% FPL federal Medicaid waiver and avail- with access to comprehensive B. Employer Subsidies ability of state and federal dollars and affordable coverage. Unlike ACA created a new premium tax as the current public insurance the federal premium tax credits, credit to enable small businesses programs are reorganized to however, individuals enrolling to purchase health insurance cov- satisfy the new coverage require- in Commonwealth Care enroll erage for their employees.34 This ments contained within ACA and in one of the four “Plan Types” credit, unlike the individual pre- maximize new federal matching and pay a discounted monthly mium credit, became effective im- funds. premium on a sliding scale that mediately upon enactment of ACA is based on income. There is no in 2010. For years 2010 through 5. Medicaid Expansion and the reconciliation at the end of the 2013, the tax credit is worth up Basic Health Plan year, thus no opportunity to either to 35% of a taxable eligible small One of the centerpieces to Chapter receive additional subsidies or be employer’s premium payments. 58 was its expansion of Medic- responsible for tax liability. How- During those years for eligible aid eligibility and the creation of ever, the Health Connector does small employers, the maximum subsidized coverage through the conduct regular reconciliations to amount is 25% of the employer’s Commonwealth Care program – redetermine eligibility. premium payments. That amount and these will be impacted by the increases to 50% in 2014. In mandatory Medicaid expansion By 2014, federal premium tax order to qualify for the credit, an included within ACA. In particular, credits will become available and employer is required to meet three Massachusetts will likely need could replace state subsidies qualifications. The first is to have to reorganize several existing for current Commonwealth Care fewer than twenty-five FTEs during public programs due to changes members who earn between the taxable year. Second, the an- in eligibility criteria created by 133% and 300% FPL.33 These nual average wage for all employ- ACA. Although by no means an federal subsidies will provide less ees during the taxable year must exhaustive list, the analysis below assistance to individuals than is be less than $50,000. Finally, illustrates just a few ways in which currently provided by Common- the employer must have in place a the Massachusetts landscape may wealth Care. Critical decisions “qualifying arrangement.”35 change in the coming year. still need to be made by Mas- sachusetts officials as to how to Currently, Massachusetts of- First, ACA expands mandatory address this overlap and whether fers an assistance program for coverage of Medicaid eligibility to continue to provide state as- eligible small employers and self- to individuals who earn up to sistance to individuals who are employed individuals to provide 133% FPL.38 This change will now enrolled in this program at health insurance coverage for allow most legal residents with the amount currently available. A employees. Similar to ACA’s small incomes up to 133% FPL to qualify discussion of current options for employer tax credits, the Mas- for MassHealth. One of the key providing continued assistance sachusetts Insurance Partner- features of ACA is that it simplified for Commonwealth Care enroll- ship Program provides premium Medicaid eligibility by removing

Volume 7, Issue 3 spring 2012 15 National Health Care Reform Comes Home: Massachusetts’ Implementation of the Affordable Care Act by Michael T. Caljouw and Sarah G. Gordon

categorical eligibility requirements. determine how to cover those important ways – differs from its Coverage provided to expansion individuals who currently receive older sister in Massachusetts. population is not required to insurance or subsidies through comply with the Medicaid benefit Commonwealth Care and earn Massachusetts has convened a requirements that are required for 200% -300% FPL along with those dedicated workgroup to address other mandatory populations; how- earning up to 400% FPL. The these and the many other issues ever coverage must at least equal Patrick Administration has an- presented by ACA. The group benchmark or benchmark equiva- nounced recommendations to has met several times since lent coverage.39 ACA allows states provide individuals with incomes September 2010, and consists the option of developing a Basic between 200% and 300% FPL of state officials from the Execu- Health Plan, which covers eligible who receive a premium tax credit tive Office of Health and Human individuals with incomes between with additional state subsidies.43 Services, the Massachusetts 133% and 200% FPL and allows This population will be transitioned Health Connector, the Massa- legal immigrants with incomes up to the ACA-mandated exchange chusetts Division of Insurance, to 133% FPL to receive coverage and receive premium tax credits. the Massachusetts Department through this plan.40 However, premium tax credits and of Public Health, MassHealth, cost sharing subsidies will not pro- other relevant state agencies, In Massachusetts many of these vide the same level subsidies that health plans, providers, em- individuals within the manda- individuals within this population ployer groups, consumer groups tory expansion population may receive through Commonwealth and other interested parties.45 already be covered through the Care today. The Patrick Admin- In addition, smaller state-led MassHealth Basic, MassHealth istration further announced its workgroups have commenced Essential or Commonwealth Care recommendation to provide addi- more focused discussions with programs.41 Members enrolled in tional assistance to those between stakeholders.46 Led by the Mas- either the Commonwealth Care 200% and 300% FPL with “wrap” sachusetts Division of Insurance program or MassHealth experi- coverage. The amount is currently and the Massachusetts Health ence significant churn between estimated to cost the Common- Connector, these groups have programs as their individual wealth $187 million.44 Both ACA included the so-called “Three R’s” eligibility status changes. Moving and Massachusetts health care Workgroup addressing implemen- these individuals into MassHealth reform contain provisions that tation issues centering on rein- will simplify the program and expand affordable health care surance, risk adjustment and risk reduce churn. However, as with options for the state’s most vul- corridors. The separate Insur- all of the new federal rules, ACA’s nerable populations. Important ance Market Reform Workgroup Medicaid expansion provisions decisions need to be made at the has focused on essential health bring about new and important state level as to how best to transi- benefits, catastrophic health policy considerations that the tion this population in a manner plans, child-only health plans, state will have to address. During that maintains coverage for this group market size and rating the coming months, Massachu- population and ensures that Mas- issues and enrollment matters. setts will need to sort through the sachusetts is in full compliance As of April 2012, no workgroup existing state coverage programs with the new federal rules. sessions have begun to address and determine how to incorporate the many issues presented by the the new classification of eligible Conclusion individual mandate or employer individuals and how to fully take Much of the public’s attention responsibility issues. advantage of opportunities to re- on national health care reform, ceive enhanced federal matching including much legal analysis, This article illustrates that there dollars. The Patrick Administra- has been focused on Washing- are difficult legal, policy and tion has announced its recommen- ton, D.C. With a United States operational issues to face from dation to establish a Basic Health Supreme Court challenge and a ACA’s implementation in Mas- Plan within MassHealth for this national election in which health sachusetts. Much of the work population.42 Many of the individ- reform is center stage, that is quite has already begun in earnest. uals who will become eligible for understandable. However, there are However, with many of the major the Basic Health Plan are currently very significant challenges related to provisions effective in 2014, state enrolled in Commonwealth Care federal health reform facing Mas- lawmakers and agency officials today, including legal immigrants. sachusetts today. Policymakers are will need to continue with careful confronting the hard task of reconcil- deliberation and timely legislative Finally, Massachusetts must ing a federal law which – in many and regulatory actions.

16 Spring 2012 Volume 7, Issue 3 Guardianship Proceedings in Massachusetts Probate Courts for Health Care Facilities: The Not-so-Uniform Probate Code by William A. Mandell and Suzanne M. Fuchs

Introduction are often limiting the authority of existing guardianship to authorize guardians to give consent for treat- transfer to a skilled nursing facility, On January 15, 2009, Massachu- ments unless further court review which is specifically required under setts joined 18 other states in and approval are secured. the new law.5 This new aspect of adopting the Uniform Probate Code the law results in extended stays 1 (“UPC”). Article V of the UPC went The UPC instructs Probate Court in acute settings for extra weeks or into effect on July 1, 2009, making judges not to confer more authority months, exposing patients to great- sweeping substantive and proce- over a person than is necessary.3 er risk of infection and relapse, often dural changes to guardianship law, The balance between an incapaci- without access to needed rehabilita- aiming to grant greater protections tated patient’s civil rights and the tion and long term care services. to the civil rights of incapacitated altruistic discretion of hospitals and This occurs while the hospital coun- 2 persons. Further changes to the other treating facilities has been sel or family attorney navigates the UPC were adopted in April of 2012, fundamentally altered by the UPC as various courts’ processes, subject to mostly relative to intestate succes- Probate Court judges are now clearly the courts’ overburdened schedules sion and estate administration. required to make orders only to the and lack of personnel. extent necessitated by the protected In theory, Article V of the UPC was de- person’s limitations and other con- Additionally, health care institutions signed to streamline procedural re- ditions.4 pursuing guardianships will often en- quirements for appointing surrogate counter the challenge of being in the decision makers while protecting Furthermore, the variability of the middle of a dispute with or among the civil rights of the incapacitated Massachusetts Probate Courts in the incapacitated individual’s family by crafting decrees and orders spe- applying the UPC often adds delay members about whether a guardian cifically tailored to address particu- and unnecessary cost for health is needed, who will serve as guard- lar areas of incompetency. In prac- care institutions and consequently ian, and decisions as to treatment tice, however, so far the UPC has led their ability to efficiently and effec- or treatment discontinuation. More to a significant increase in petitions, tively treat the very individuals that often than not, a facility facing ad- motions and return appearances the UPC was intended to protect. For versarial family members especially being filed by health care facilities example, the cost-effective health needs to petition for guardianship to for incompetent patients at a time of care system is designed to move pa- secure a court order approving the diminished Probate Court system re- tients out of an acute care setting as recommended treatment plan. The sources. Under the UPC, health care quickly as possible when sub-acute facility is forced to bear the financial facilities are more frequently secur- level care is more appropriate and burden of pursuing a guardianship ing the appointment of guardians a bed placement has opened up for that is significantly delayed by the and seeking specific and modified the patient. In order to authorize the objecting family members. court orders for admission to skilled transfer of an incompetent patient, nursing facilities, treatment plans who has no involved family mem- Venue limitations under the UPC and for patients unable to give informed bers and never appointed a health inconsistent guardianship proceed- consent, non-routine medical deci- care agent before becoming incom- ings among Massachusetts Pro- sions and end-of-life decisions. They petent, Massachusetts acute care bate Courts also challenge health are doing so for a broader scope hospitals are often forced to keep care facility petitioners who must of medical conditions and transfer such a patient in the acute care set- obtain guardians and court orders situations, and finding that Probate ting pending the appointment of a for treatment and transfers for the Court judges, in applying the UPC, guardian or the modification of the growing number of incapacitated

Volume 7, Issue 3 spring 2012 17 Guardianship Proceedings in Massachusetts Probate Courts for Health Care Facilities: The Not-so-Uniform Probate Code by William A. Mandell and Suzanne M. Fuchs

patients lacking duly appointed sur- care, education, health and welfare question. Extraordinary medical rogate decision makers and/or any . . . and the guardian shall act in the procedures generally fall into two involved family members. Clearly, incapacitated person’s best inter- categories: (1) administration of the demographic trends of people in est and exercise reasonable care, antipsychotic medication, known the U.S. living longer are impacting diligence, and prudence.”6 Such “or- as “Rogers authority;”10 and, (2) all the number of patients in Massa- dinary decision making” authority other invasive treatments. For both chusetts who need a legal surrogate generally gives consent to treatment types of extraordinary medical pro- to make health care decisions. The and arranging appropriate medical cedures, probate courts apply the current backlog of cases pending in inpatient or outpatient care that “substituted judgment” standard, the underfunded and overburdened does not involve any antipsychotic whereby the Court weighs various Probate Courts across the Common- medications. A guardian need not factors in order to determine the wealth further delays guardianship seek explicit orders for each “ordi- decision that the incapacitated in- proceedings and can lead to great nary care” decision, so long as the dividual would have made if com- variation of process among the Pro- guardian is appointed by the court petent.11 The drafters of the UPC bate Courts. and is acting in the incapacitated in- did not specify an exhaustive list of General Overview Of Guardianship dividual’s best interest. Also, guard- such extraordinary authorities, ac- Law and Procedure Under The UPC ians are the duly appointed legal counting for and leaving flexibility surrogates who have authority over to adapt to evolving medical tech- A. Understanding Guardianship Sub- the use and disclosure of the health niques and standards.12 The UPC stantive Requirements: information7 for the “person in need has, however, codified the following of services.”8 common examples of extraordinary Under the UPC, a guardian may be treatment: “[t]reatment with anti- granted an array of general powers The second category, placement au- psychotic medication, sterilization, that effectuate the guardian’s ability thority, requires an explicit court or- abortion, electroconvulsive therapy, to act as a medical decision maker der allowing the guardian to consent psychosurgery and removal of aron behalf of an incapacitated per- to placement in a skilled nursing tificial maintenance of nutrition or son. The guardian’s powers fall into facility or other health care facility.9 hydration.”13 The UPC is not clear as three general categories, and each The court, rather than the guardian, to whether a guardian may consent category necessitates distinct proce- after a hearing on the matter, will to a “Do Not Resuscitate”, “Do Not dural and substantive requirements apply the “best interest” standard Intubate” or “Do Not Hospitalize” under the Code. Generally, the first in determining whether such author- order without specific court author- category is known to practitioners as ity, and thereby placement, is ap- ity. Prior to the adoption of the UPC, “ordinary medical decision making,” propriate. This authority is required Massachusetts courts suggested the second is “placement authority,” for admission of any person under that a substituted judgment finding and the third is commonly referred guardianship to any facility licensed is required for the guardian to enter to as “extraordinary medical deci- as a skilled nursing facility, whether a DNR/DNI order.14 An exception to sion making” or “substituted judg- for long term care or any short term this requirement may exist when the ment” proceedings, which neces- rehabilitation, even if only for several patient is in acute medical distress, sitate the appointment of a public days. The requirement also applies the guardian/family/physician all defender paid by the Committee for regardless of who the guardian is, agree that there is no choice to be Public Counsel Services who is spe- including those who are spouses, made, and avoiding resuscitation or cifically trained to advocate for the children or other family members as lifesaving measures will not hasten patient in these types of cases. opposed to professional or institu- death.15 tional guardians. Issues also arise With regard to the first category, regarding persons from out of state B. Understanding Guardianship a guardian appointed without any and whether the foreign decrees au- Procedural Requirements additional authority is generally authorize admissions to skilled nursing thorized to make decisions about facilities in the Commonwealth. Any person “interested in the wel- routine, non-invasive medical proce- fare of the incapacitated” may peti- dures. Once appointed by the court, Finally, a guardian can only make tion for a determination of incapacity such a guardian may have the au- “extraordinary medical decisions” and/or the appointment of a guard- thority to “make decisions regarding upon an explicit court order au- ian over the incapacitated person the incapacitated person’s support, thorizing the specific treatment in (hereinafter “Respondent”).16 The

18 Spring 2012 Volume 7, Issue 3 Guardianship Proceedings in Massachusetts Probate Courts for Health Care Facilities: The Not-so-Uniform Probate Code by William A. Mandell and Suzanne M. Fuchs

UPC contains venue rules that re- es.”19 A temporary guardian ap- on the hours that the Courts are quire the petitioner to file in the Pro- pointment is effective for 90 days, open to consider petitions and mo- bate Court of the county where the at which time it will be reviewed and tions.26 This contraction of service is Respondent resides at the time the new medical documentation will be happening at the same time that the proceeding is commenced.17 Pre- required.20 On a temporary motion, UPC is requiring the Probate Courts UPC guardianship procedure was the Petitioner must give seven days to adapt to entirely new rules and more lenient in permitting Massa- in-hand notice to the Respondent process on estate administration chusetts health care facilities to file and the same by mail to any heirs while still handling the normal work petitions of permanent appointment at law.21 If the Court finds that an load. The increasing amount of inca- and motions for temporary appoint- immediate emergency exists requir- pacitated patients is also resulting ment in the Probate Court located ing the appointment of a guardian, in significantly more demands on in the County where the facility was it may waive or shorten the notice the Probate Courts with more guard- located. requirements, provided that the Re- ianship case filings. spondent is notified of the proceed- Upon receiving a petition for guard- ing as directed by the Court, and the A. Venue Requirements ianship, the Probate Court issues Respondent and heirs at law receive a citation, which is to be served notice after the proceeding instruct- The UPC provides that a guardian- in hand upon the Respondent as ing them that they may vacate the ship petition shall be filed where well as the heirs at law at least two order. 22, 23 the Respondent resided prior to weeks prior to the return date listed hospitalization.27 This venue require- on the citation.18 Where there are no If a petitioner requests ordinary au- ment seems warranted if the patient heirs at law or the interested parties thority or skilled nursing home au- has family or friends residing in the do not receive notice, a publication thority, the court must determine same County who are involved with must occur in the County where the whether such placement is in the the patient’s care and can provide proceeding is pending at least seven best interest of the Respondent.24 information about the patient’s days prior to the return date. G.L. c. The Court may appoint counsel to preferences prior to his incapacity. 190B §1-401(3). The “return date” represent the interests of the inca- However, a growing number of pa- is, in effect, a deadline by which in- pacitated person, or a guardian ad li- tients are homeless or have resided terested persons to the case may tem (GAL) to investigate and provide alone without any known heirs or file an objection. This date is usually a report to the Court.25 If a petitioner acquaintances prior to hospitaliza- about 4-6 weeks from the date of seeks extraordinary authority or au- tion. Requiring health care facility filing of the petition with the Court. thority to consent to administration petitioners to file in a Court that may A permanent guardianship cannot of antipsychotic medication (“Rog- be a long distance from the facility, be completed until this date passes ers authority”), the courts will always causes undue delay, burdens the and proof of service upon all inter- appoint counsel for the Respondent. facility, the guardian, the court ap- ested parties and/or publication is pointed counsel, and testifying phy- Variability of Guardianship Pro- filed with the Court. ceedings Among Massachusetts sicians. Further, an incapacitated Probate Courts individual has the right to attend any While the permanent petition is hearing, and in Rogers cases, must pending, a petitioner may file a veri- After a new guardianship petition attend a hearing absent extraordi- fied motion for the appointment of a and motion for temporary guardian nary circumstances.28 As written, temporary guardian if “an incapaci- is filed it can take two weeks to sev- the UPC does not acknowledge ex- tated person has no guardian, and eral months to have the first hearing ceptions to the venue rule where the the court finds that waiting during date depending on which Probate patient has no ties to his previous the longer time frame to secure a Court the guardianship petition is residence. permanent appointment under UPC filed. This length of time, particu- procedures will likely result in imme- larly for petitions filed by acute care For example, a Boston tertiary care diate and substantial harm to the hospitals, is extremely problematic, hospital that must seek a guardian- health, safety or welfare of the per- costly, and can pose imminent harm ship appointment to secure an order son alleged to be incapacitated oc- to Respondents. The lack of suffi- to approve a discharge plan to a curring prior to the return date, and cient funding for the Massachusetts sub-acute facility for a patient found no other person appears to have au- Probate Courts has caused cuts to homeless in Barnstable County is thority to act in the circumstanc- staff and most recently, a limitation expected to file the matter in Barn-

Volume 7, Issue 3 spring 2012 19 Guardianship Proceedings in Massachusetts Probate Courts for Health Care Facilities: The Not-so-Uniform Probate Code by William A. Mandell and Suzanne M. Fuchs

stable County Probate Court. Previ- hurdles, the method for docketing ences in the time it takes to secure ously, such a case could have been a file and obtaining a hearing sig- the requisite legal authority to imple- filed in Suffolk County Probate Court, nificantly varies with each Probate ment a discharge and/or treatment nearer to the patient, the physicians, Court and presents further delays plan. Patients needing rehabilitation and attorneys who may be involved and expense. One common trend or long term care services and treat- with the case. To require a patient, is that few of the Probate Courts ment can remain unnecessarily in who likely already has limitations will now process a file and assign it acute care settings. and requires hospital transport, a docket number and hearing date to travel long distances makes no on the day of filing. In the best case As previously mentioned, all Probate sense and adds unnecessary cost scenario, new matters are dock- Court judges will appoint Rogers to the health care system. eted within a few days and hearing counsel or counsel for the Respon- dates are generally being scheduled dent when consent to treat with anti- There is great variation among the ten days from filing. Guardianship psychotics or extraordinary authority Probate Courts on the strict adher- cases, even those including motions is sought. Counsel must be notified ence to this venue rule. As applied, for temporary appointments, will of their appointment, accept the courts vary as to permitting filing languish in some Probate Courts. court appointment and have the opin the venue where the health care If not pushed as life-or death emer- portunity to visit with the Respondent facility is located. More troubling, gencies, these cases will be placed prior to the hearing on a proposed it seems that a Probate Court’s fi- in a pile of back-logged cases and treatment plan. There is a limited nancial constraints and perceptions not processed for several weeks, nor list of Committee for Public Coun- about other Counties’ practices heard for several months. sel Services (“CPCS”) attorneys who drive judicial decisions to reject fil- can accept Rogers appointments. ings. Anecdotally, it has been re- In other cases, the court will not as- Again, due to the courts’ backlog, ported among regular guardian- sign a case a court date. Instead, counsels are often not appointed ship petitioner counsels that some the petitioner must determine which until days or even weeks after the judges have stated that because Judge will hear the matter and when filing of the petition. Often the ap- another County will not accept cases that Judge is available, and then at- pointed counsel for the patient does involving their residents, they will not tempt to contact the Probate Court not receive notice of appointment in waive the venue rule for a petitioning to obtain a court date. A date ob- time for a hearing, cannot visit the local health care facility and accept tained in this manner is often times patient in time, or cannot accept the a case involving an incapacitated weeks out, at best. appointment at all. In such instanc- person whose last known residence es, the initial hearing date on a mo- is from the other County. C. Appointment of Counsel tion for a temporary guardian and immediate approval of a treatment There clearly needs to be greater Even if a petitioner is successful in plan is continued. discretion granted to Judges to have docketing within a few days of filing, legal authority to waive venue re- most of the Probate Courts will not Additionally complicating matters quirements and allow filings in the mark-up a hearing date until ap- are the inconsistencies among County where the petitioning facility proximately seven to ten days from judges in appointing counsels and is located if circumstances warrant, filing, which is consistent with prop- GALs in non-Rogers cases. Where a for patient and family convenience er notice under Mass. G.L. c. 190B guardian is needed to authorize the and/or to realize economy in the §1-401(3). Although judges hold transfer out of an acute care hospi- use of resources of an already over- weekly motion days, clerks in many tal to a home care or non-acute facil- burdened health care system. of the busiest Probate Courts are ity setting, currently there are huge unable or unwilling to schedule new and unpredictable variances in the B. Docketing the Petition cases less than a few weeks after process among the Probate Courts the docketing of the case, if at all. and even the judges within each Once a petitioner overcomes the County. Because the UPC calls for ju- venue obstacle, the petitioner must When an expeditious hearing date dicial discretion for counsel appoint- file the paperwork, have it docketed, can be obtained, inconsistencies ment, some judges routinely choose and obtain a hearing date for the among the Probate Courts in coun- to appoint counsel, or even a GAL, temporary guardianship motion. sel appointment can further delay while others do not. Without know- Like most guardianship procedural the process and lead to vast differ- ing judicial preference beforehand,

20 Spring 2012 Volume 7, Issue 3 Guardianship Proceedings in Massachusetts Probate Courts for Health Care Facilities: The Not-so-Uniform Probate Code by William A. Mandell and Suzanne M. Fuchs clerks may fail to appoint counsel, adjustment must be authorized by care agents without the need for and the petitioners may prepare for the Court on an annual basis, and court intervention, M. G.L. c. 201D a hearing date only to receive an or- it is a mechanism that precious few §7 makes it easier for the patient der requiring a counsel appointment attorneys will tolerate to serve as who executed a proxy when com- on the day of the hearing. guardians. This is a situation that petent to render it unreliable for will get worse and warrants a sys- the health care provider by refusing D. Shortage of Guardians tematic fix. treatment or to undergo a procedure authorized by the agent. M. G.L. c. In guardianship cases involving pa- E. Process to Affirm Health 201D §7 states that “[a] principal tients who have no living or involved Care Agents may revoke a health care proxy by family members and never appoint- notifying the agent or a health care ed a health care agent while com- As currently written, the UPC pro- provider orally or in writing or by any petent, petitioning health care facili- vides that a properly designated other act evidencing a specific in- ties need to identify and secure the health care agent’s authority under tent to revoke the proxy.”33 In such services of some suitable person to M.G.L. c. 201D takes priority over circumstances, this section of the serve as guardian. Overburdened the authority of a guardian, and can- Massachusetts Health Care Proxy 30 Probate Court clerks and judges are not be revoked absent court order. Law requires a physician who is in- unlikely to find a willing attorney or Further, the comments to M. G.L. formed of or provided with a revoca- social worker to serve as a guardian c. 190B §5308, state that the lan- tion of a health care proxy to imme- in patient care cases filed by hospi- guage of the revised UPC “should diately record the revocation in the tals and nursing homes. The involve- aid in preventing the mere institu- principal’s medical record and to ment of the Courts in helping secure tion of a guardianship proceeding notify orally, and in writing, the agent guardians varies greatly from County from upsetting an arrangement for and any health care providers known to County. By separating the guard- care under a health care proxy.” Ac- by the physician to be involved in the ianship function over health care cordingly, it is clear that the drafters principal’s care of the revocation. decisions from the conservator func- of the UPC intended to prioritize des- tions over financial affairs into two ignated health care agents and re- Thus, hospitals encountering pa- separate legal proceedings, the UPC spect an individual’s right to prepare tients who refuse treatment over the makes it difficult to find willing volun- an advance directive. authority of their agents often have teers to serve as guardians in cases no choice but to file a guardianship involving incompetent patients with Under M. G.L. c. 201D §5, a health no involved family or friends who care agent has broader decision petition or seek a court order af- are willing to serve as guardian. For making authority than a court ap- firming the authority of the agent in hospitals and other facilities that pointed guardian. “The agent has order to secure the requisite legal regularly seek guardianship appoint- authority to make any and all health authority over treatment decisions. ments it has become a constant care decisions on the principal’s be- The UPC does not provide for any challenge to secure the services of half that the principal could make, in- process to resolve such cases. The guardians for incompetent patients. cluding decisions about life-sustain- Health Care Proxy Law does provide The shrinking pool of guardians is in ing treatment, subject, however, to a process through which a petition- part attributable to the increasingly any express limitations in the health er, including a hospital or health complex annual reporting required care proxy.”31 An agent’s powers care facility, may “commence a spe- under the UPC, coupled with the are not limited to non-antipsychotic cial proceeding in a court of com- convoluted manner in which profes- treatment plans or consenting to petent jurisdiction, with respect to sional guardians are compensated non-extraordinary authority, as are any dispute arising under [M. G.L. c. for indigent patients. Under the cur- the guardians. Further, an agent 201D].”34 This language suggests rent scheme, a professional guard- may admit an incapacitated individ- that a petitioner may seek to affirm ian can only seek payment for serv- ual to a locked psychiatric facility,32 the powers of the agent, but neither ing a MassHealth patient by seeking whereas the under G.L. c. 190B §5- M. G.L. c. 201D nor the UPC provide approval from the Court to order 309, a guardian explicitly lacks such any further guidance on when affir- MassHealth to adjust the amount authority. mation of a proxy is appropriate or of the patient’s contribution for her any procedural guidelines regarding care from external income sources Despite the UPC’s clear intent to up- affirming an agent’s continuing au- (social security or pension).29 This hold the broad authority of health thority under a proxy despite a pa-

Volume 7, Issue 3 spring 2012 21 Guardianship Proceedings in Massachusetts Probate Courts for Health Care Facilities: The Not-so-Uniform Probate Code by William A. Mandell and Suzanne M. Fuchs

tient’s refusal to voluntarily submit it burdens an already strained sys- leaves a major question of jurisdic- to treatment. tem. Emergency motions are now tion and applicable law. Clearly, a almost always met with scrutiny and Massachusetts hospital cannot Some hospitals have been suc- some push back. treat and discharge such a patient cessful in petitioning Probate Court on a non-emergency basis without judges to affirm an agent’s authority Moreover, each County differs on its seeking the appointment of a guard- on the basis of the Probate Court’s procedure to expedite appointment ian and would need to do so by filing general authority. Other hospitals of counsel for matters that may be a petition in a Massachusetts Pro- have adopted the practice of seek- marked up more quickly. Some bate Court. Many Probate Courts, ing a guardianship appointment of judges permit petitioner’s coun- however, will not accept such peti- the agent in such cases. Currently, sel to propose CPCS counsel who tions and instruct Massachusetts there is a lack of uniformity on how to is available on short notice. Other health facility counsels to seek an most expeditiously secure the mini- Judges forbid proposing counsel in a appointment in the state court of mum necessary judicial interven- motion and instruct that counsel is the patient’s residence. tional while protecting the patient’s appointed “off the list” where too of- rights. Arguably the patient’s rights ten counsel is not appointed in time In other situations, a patient does would be best served by honoring for the scheduled hearing. In some have a surrogate in place from an- the prior broad agency appointment. Counties, depending on the nature other state but additional questions But if there is evidence of unfitness of the circumstances, temporary come up as to that out-of-state sur- of the agent or a question of suffi- guardianship appointment may be rogate’s authority to consent to anti- cient competency by the patient to made without appointment of coun- psychotic treatment and other inva- have the informed capacity to refuse sel, and subsequent appointment sive treatments being rendered in the treatment, then some level of an is made with a short review date in Massachusetts. evidentiary hearing may be required order to reassess the emergency in many of these cases to sufficiently order. A broader adoption of this ap- The American Bar Association has adjudicate the matter. proach among more Counties would proposed adoption by the states be helpful. of the Uniform Adult Guardianship F. Short Order on Notice and Protective Proceedings Jurisdic- G. Out-of-State Patients/Juris- tion Act (“UAGPPJA”). This Act would One mechanism that can be at- dictional Questions address jurisdictional issues such as tempted by health care facility peti- transfer, out of state jurisdiction, and tioners, and should be more widely Another major challenge many multi-jurisdictional guardianships.35 accepted by all Massachusetts Pro- Massachusetts health care facili- Massachusetts could resolve many bate Court clerks and judges, is to ties face now under the UPC is with of these jurisdictional issues by join- file motions for short orders of notice out-of-state incompetent patients. ing the 30 other states that adopted due to an exigent medical situation Facilities located near the border of the Act. and the necessity of expediting the neighboring states, as well as Mas- proceedings. A short order of notice sachusetts teaching hospitals and H. Consequences of the Vari- allows the moving party to be heard centers of excellence, regularly treat ability in Procedure Among Pro- on its motion within a period of time out-of-state patients and inevitably bate Courts shorter than the required 7 days no- many of them are not competent tice. Further, it allows a motion to be to make informed health care deci- The increasing length of time under heard on a day that may otherwise sions. Many Massachusetts hospi- current UPC Probate Court practice be blacked out by those who sched- tals and sub-acute facilities have before a temporary or permanent ule motions for the Judge due to the service areas that include large guardianship is heard is problematic number of already marked up mat- portions of Rhode Island, Connecti- and does not serve the interests of ters. There is a great variance cur- cut, New York, New Hampshire and the incapacitated individuals that rently among the Probate Courts as Maine. the UPC was drafted to protect. It is to their willingness to permit short important to understand that most orders of notice. In all venues, Court Many out-of-state incompetent pa- cases initiated by health care facili- staff and case managers alike are tients present without having made ties are, by their very nature, urgent understandably resistant toward any out an advance directive recognized situations. For patients who do not cases filed on emergency status, as by their state of residence. This have a surrogate decision-maker but

22 Spring 2012 Volume 7, Issue 3 Guardianship Proceedings in Massachusetts Probate Courts for Health Care Facilities: The Not-so-Uniform Probate Code by William A. Mandell and Suzanne M. Fuchs are medically stable and ready for the UPC as applied by the Probate judgment” standard in order to determine discharge, the current Probate Court Courts and the handling of all health whether an incapacitated individual would have refused treatment if he were not system is causing acute care hospi- care intervention matters is due and incapacitated. tals longer than is medically advis- should be undertaken by the Chief 11Brophy v. New England Sinai Hospital, able to discharge. These patients Administrative Justice of the Mas- 398 Mass. 417, 427 (1986) (At least six factors are weighed in making substituted are often at greater risk of acquiring sachusetts Probate Courts. Such judgment: the individual’s express healthcare-associated infections, a process could hopefully result in preferences regarding treatment; the also referred to as nosocomial, hos- more efficient, fair standardized strength of the individual’s convictions in pital-acquired or hospital-onset in- procedural rules to ensure that the relation to their refusal of treatment; the impact of the decision on the individual’s fections. These patients also remain UPC’s intent to create uniformity of family; the probability of adverse side unable to obtain appropriate reha- procedure and greater rights for the effects; the prognosis with and without bilitation or post-acute care, facing incapacitated is effectively carried treatment; and any other relevant factors); the likelihood that his or her condi- out in practice. Mass. G.L. c. 190B § 5306A. 12 The Massachusetts Comment to Mass. tion will deteriorate. Further, proper (Endnotes) G.L. c. 190B §5-306A states that: “The placements cannot be held indefi- 1 Mass. G.L. c. 190B §§1-101 -1-507. types of treatment for which a substituted nitely and are often lost by the time 2 The UPC defines an “incapacitated judgment procedure may be required are a temporary guardian appointment person” as “an individual who for reasons not listed as they may vary depending on the invasiveness of the particular proposed with the discharge approved by the other than advanced age or minority, has a clinically diagnosed condition procedure or because of advancements Court can be secured. Patients who that results in an inability to receive which reduce side effects, etc., see In must wait one month for a guardian- and evaluate information or make or Matter of Spring, 380 Mass. 629, 405 ship order often will not be accepted communicate decisions to such an extent N.E.2d 115 (1980).” 13 Massachusetts Comment to Mass. G.L. by the originally available post-acute that the individual lacks the ability to meet essential requirements for physical health, c. 190B §5-303. care facility or program as the bed safety, or self care, even with appropriate 14 See In re Saikewicz, 373 Mass. 728 or placement has been filled. More- technological assistance.” Mass. G.L. c. (1977). over, the patient in a locked- psychi- 190B 521 § 5-101(9). 15See In re Dinnerstein, 6 Mass.App.Ct. 466; 380 N.E.2d 134 (1978). atric facility awaiting a guardianship 3 Mass. G.L. c. 190B, § 5-306. Under the UPC guardians no longer have any 16 Mass. G.L. c. 190B §5-303 (A). appointment and an order approv- authority over the funds or estate of a 17 Mass. G.L. c. 190B §5-105. ing a treatment plan must remain in person, but rather no have authority only 18 Mass. G.L. c. 190B §5-303, citing to the most restrictive setting, suffering over the person’s personal/health care G.L. c. 190B §1-401. 19 Mass. G.L. c. 190B § 5308 (A). the symptoms of a psychiatric illness decisions. Court appointed surrogate authority over the financial affairs of 20 Id. without the ability to commence an an incapacitated person is limited to 21 Mass. G.L. c. 190B § 5308 (c). antipsychotic treatment plan. a conservator, who must be appointed 22 Mass. G.L. c. 190 § 5308 (d). through a separate legal process from a 23 Often urgent and potentially life- Conclusion guardianship under the UPC. threatening circumstances call for even 4 Mass. G.L. c. 190B, § 5-407 (a), (d). more immediate court intervention which The variability of Massachusetts 5 Mass. G.L. c. 190B § 5-309 (g). “No can be availed through the Emergency Probate Courts in applying UPC guardian shall have the authority admit an Judicial Response System. requirements is currently causing incapacitated person to a nursing facility 24 Mass. G.L. c. 190B 521 § 5309 (g). except upon a specific finding by the court 25 Mass. G.L. c. 190B 521 § 5106; Mass. unnecessary financial costs to the that such admission is in the incapacitated G. L. c. 190B 521 § 5309 (d). Massachusetts health care system, person’s best interest.” According to 26 The current hours for Massachusetts inconvenience and uncertainty to the note for § 5-309(g), the requirement Probate Courts are 8:30am – 3:30pm. litigants and their counsel, and most of specific authority for admission to 27 Mass. G.L. c. 190B §5-105. a nursing facility is an important new 28 Mass. G.L. c. 190B 521 §§ 5-106, 5- importantly, is not serving the inter- protection for the elderly. 306A (d). ests of the incapacitated. Some of 6 Mass. G.L. c. 190B §5-309 (A). 29 See 130 C.M.R. 520.026 (E)(3). the current challenges stem from 7 45 C.F.R. §164.502 (g)(1) and (2); Mass. 30 Mass. G.L. c. 190B §5-309 (e). the financial shortfalls and lack of G.L. C 111, §70; Mass. G.L. C 112, §12C 31 Mass. G.L. c. 201D §5 8 The UPC replaces the reference of “ward” 32 Cohen v. Bolduc, 435 Mass. 608, 609 resources in the system. Many, how- to “person in need of services” for adult (2002). ever, could be easily rectified by UPC incapacitated individuals. 33 Mass. G.L. c. 201D §7 (emphasis amendments and/or more consis- 9 Mass. G.L. c. 190B § 5309 (g). added). tent application of procedural steps 10 The Court in Rogers et al v. 34 Mass. G.L. c. 201D § 17. Commissioner of the Department of Mental 35 The National Guardianship Association by all of the Massachusetts Probate Health et al., 390 Mass. 489 (1983) held describes UAGPPJA on their website, Courts in handling guardianship pe- that specific court authority must be sought http://www.guardianship.org/uagppja.htm titions and motions filed by health to administer antipsychotic medication, care facilities. A re-examination of whereby the court applies a “substituted

Volume 7, Issue 3 spring 2012 23 Guardianship Proceedings in Massachusetts Probate Courts for Health Care Facilities: The Not-so-Uniform Probate Code by William A. Mandell and Suzanne M. Fuchs

(Endnotes) 20. Limitations on annual cost sharing are capped 35. To be considered a qualifying arrangement, 1. All references in this article to ACA are derived at Section 223(c)(2)(A)(ii) of the Internal Revenue generally the employer must pay health insurance from ACA’s two statutes: the Patient Protection Code of 1986 (Currently $6,050 for an individual premiums for each employee enrolled in the and Affordable Care Act (P.L. 111-148) and the and $12,100 for a family). Section 1302(c)(1) employer-sponsored coverage, and that employer Health Care and Education Reconciliation Act of (A). Annual limits on deductibles are capped at contribution must be at least 50% of the cost of the 2010 (P.L. 111-152). All references to Chapter 58 are derived from Chapter 58 of Acts of 2006. $2,000 for an individual and $4,000 for a family. premium. See IRS Guidance – Section 45R- Tax For ease of reading, we have not footnoted every Section 1302(c)(2)(A). ACA contains provisions Credit for Employee Health Insurance Expenses of instance when the law is referenced. for indexing of annual limits. Small Employers. Notice 2010-44. 2. See BCBSMA Foundation, Massachusetts 21. CMS, Center for Consumer Information and 36. Insurance Partnership Program; G.L. c. 118E§ Health Reform: A Five-Year Progress Report Insurance Oversight, “Essential Health Benefits 9C, 130 CMR 650. Bulletin,” Dec. 16, 2011, at 2. (Nov. 2011). 37. See 130 CMR 650.022 for definition of 3. See, e.g., State Affordable Care Act Implemen- 22. Cost sharing requirements are defined in a “Qualified Employee”. tation Stakeholder Meetings at www.mass.gov/ separate bulletin, Actuarial Value and Cost-Shar- 38. ACA § 2001(a)(1)(C) (Title II – Role of eohhs/provider/guidelines-resources/services-plan- ing Reductions (Feb. 24, 2012). Public Programs, Subtitle A – Improved Access to ning/national-health-care-reform-plan/stakeholder- 23. Should a state not select a benchmark plan, Medicaid). meetings. the default benchmark plan for the state will be 39. ACA, § 2001(a)(2)(A) . For definition of 4. Implementation of many other features of ACA, the small group plan with the largest enrollment “Benchmark” coverage see ACA § 1937(b)(1) or including the development of Exchange rules in the state. “benchmark equivalent” ACA § 1937(b)(2). vis-à-vis the Massachusetts Health Connector, 24. DOI: http://www.mass.gov/ocabr/consumer/ tax changes, and insurance market rules, are well 40. Legal Immigrants currently receive coverage worth consideration. These five categories were insurance/health-insurance/consumer-guides/ mandatory-benefits-guide.html through Commonwealth Care. This program is chosen in light of their broad application to a wide fully funded by the state with no federal matching variety of stakeholders and the public. 25. ACA, § 1311(d)(3)(B). dollars available. 5. ACA provides a limited number of exceptions, 26. See DOI presentation on results of survey 41. MassHealth programs cover adults that do not for instance, on the basis of immigration status, of potential benchmark plans presented to ACA have dependent children, earn up to 100% FPL, religious beliefs, or membership in an Indian tribe. Stakeholder Working Group. March 12, 2012. and have been unemployed for longer than 12 6. Such legislative action will not be necessary if Examples of differences between the small group months. See MassHealth eligibility 130 C.M.R. the United States Supreme Court strikes down the plans include routine eye care exams, dental 519. The Connector’s Commonwealth Care individual mandate in Department of Health and services, physical and occupational therapy program provides coverage for adults within this Human Servs. v. Florida, Supreme Court Docket coverage, and speech generating devices. Differ- income cohort that do not meet MassHealth eli- No. 11-398. ences between the small group coverage and the gibility requirements. See Comm. Care eligibility state employees’ Group Insurance Commission rules 955 C.M.R. 3.00. 7. Compare ACA with Chapter 58 of the Acts (GIC) include: skilled nursing and rehabilitation of 2006. See Long, Health Insurance Coverage therapy, private duty nursing, assisted reproduc- 42. See Connector Board Presentation: “National and Access to Care in Massachusetts: Detailed tive technology, early intervention, hearing aids, Health Care Reform Update: Subsidized Health Tabulations Based on the 2009 Massachusetts chiropractic therapy, and physical and occupa- Insurance.” April 12, 2012. Health Insurance Survey, Massachusetts Division tional therapy. Most differences relate to number 43. See Connector Board Presentation: “National of Health Care Finance and Policy, Nov. 2009. of visit limits. Health Care Reform Update: Subsidized Health See also Seifert and Cohen, Reforming Reform, Insurance.” April 12, 2012. University of Massachusetts Medical School 27. See id. Massachusetts’s mandates on Autism Center for Health Law and Economics at 12 (table Coverage and Infertility not part of FEHBP. 44. See id. 2) (June 21, 2010). 28. 956 CMR 5.00: Minimum Creditable Cover- 45. See http://www.mass.gov/eohhs/provider/ 8. See ACA, at §1513 and §10106. age guidelines-resources/services-planning/national- 29. CMS, Center for Consumer Information and health-care-reform-plan/stakeholder-meetings/ 9. See Id. See also Chapter 302, sections 18 and previous-quarterly-stakeholder-meetings.html. 19 of the Acts of 2008 (establishing quarterly test- Insurance Oversight, “Essential Health Benefits ing instead of annual). Bulletin,” Dec. 16, 2011, at 1. 46. See id. 10. See id. See also 114.5 CMR 16.00 et seq. 30. Subtitle E – Affordable Coverage Choices for All Americans; Part I – Premium Tax Credits and 11. See id. See also 114.5 CMR 17.00 et seq. Cost Sharing Reductions; Section 1401 – Refund- 12. See id. See also 114.5 CMR 17.00 et seq. able Tax Credit Providing Premium Assistance for Coverage Under a Qualified Health Plan.Amends 13. For instance, the Chapter 58 defines “full- Subpart C of IV of Subchapter A of Chapter 1 of time” as a 35-hour work week, whereas ACA uses the Internal Revenue Code of 1986 by adding a a definition of a30-hour work week. See supra. new Section 36B. 14. ACA, § 2707 (a). 31. See Department of the Treasury, Proposed Rule on Health Insurance Premium Tax Credit. 15. Chapter 58 of the Acts of 2006 required 26 CFR Part 1, 76 Fed. Reg. 50931 (Aug. 17, individuals to purchase coverage that meets 2011). The monthly credit amount is equal to the minimum requirements in order to avoid paying lesser of either the premium for the month for one a tax penalty to the Massachusetts Department of or more QHPs covering the individual or family, Revenue pursuant to M.G.L. c. 111M, Section 2. or the excess of the adjusted monthly premium The Connector Authority defined the requirements for the “benchmark” plan offered through the for MCC, see 956 C.M.R. 5.00 exchange. See Proposed 26 CFR 1. 36B-1. 16. Subtitle D – Available Coverage Choices for 32. 76 Fed. Reg. 50933 (August 17. 2011). All Americans, Part I, Establishment of Qualified Health Plans, Section 1302. Chapter 58 of the 33. Provided of course that the state does not Acts of 2006. [specific statutory citation required] implement a Basic Health Program, which provides coverage to individuals earning between 17. Self-insured plans that are not subject to state 133% and 200% FPL. insurance regulation pursuant to Section 514 of the Employee Retirement Income and Security Act 34. ACA §1421- Small Business Tax Credit. (ERISA) are exempt. Credit for Employee Health Insurance Expenses of Small Businesses. Amending Subpart D of Part 18. ACA, § 1302 (a) (1-3). IV of Subchapter A of Chapter 1 of the Internal 19. ACA, § 1302 (b). Revenue Code of 1986 by adding a new Section 45R.

24 Spring 2012 Volume 7, Issue 3 Boston University Law Class Files Affordable Care Act Amicus Briefs With the U.S. Supreme Court by Valerie Moore and Frederick Thide

Introduction Act bars jurisdiction.3 Second, craft arguments before the Court assuming the Anti-Injunction Act to place them within the broader On March 23, 2010, following does not apply, the Court heard context of the ACA litigation and nearly a year of congressional argument on whether the indi- the recent oral arguments debate, President Obama signed vidual mandate exceeded con- I. Structure of the Act the Patient Protection and Afford- gressional power under Article able Care Act (the “ACA” or “Act”) I of the Constitution. Third, the The ACA’s primary focus is expand- into law.1 The Act is the most sig- Court considered severability: if ing access to health care cover- nificant piece of social welfare the Court were to hold that the age. The Act achieves this objec- legislation since the Great So- individual mandate is unconsti- tive through several mechanisms. ciety, redefining the boundaries tutional, should any part of the First, the Act reforms the small- between the federal government 4 ACA be left standing? Finally, group health insurance market and the states in the regulation the Court considered whether the by greatly restricting medical un- and finance of health insurance.2 Act’s Medicaid expansion uncon- derwriting.7 In its place, the Act Congress relied on the Commerce 5 stitutionally coerces the states. establishes a system of adjusted Clause, the Taxing and Spending community rating coupled with Clause, and the Necessary and This high-profile litigation has guaranteed issue and renewabil- Proper Clause to enact various sparked public interest across ity reforms.8 To compensate for pieces of this comprehensive so- the nation, including at Boston the influx of riskier individuals into lution to the nation’s health care University School of Law, where private health insurance markets, crisis. Professors Kevin Outterson and the Act mandates that qualifying Abigail Moncrieff created a spe- individuals maintain “minimum The ensuing litigation over this cial class, Constitutional Health essential coverage” or pay a so- landmark law may redefine the Care Litigation. Law students called “penalty.”9 In addition, the reach of Congress’s regulatory from both Boston University and Act eliminates certain health in- powers. On March 26-28, 2012, Boston College participated and surance industry practices identi- the Supreme Court heard six submitted several amicus curiae fied as unfriendly to consumers, hours of oral arguments on four 6 briefs to the Court. Outterson including rescissions and caps issues briefed by the parties and and Moncrieff were joined by pro- on coverage.10 Second, the Act amici. First, the Court considered fessors from other law schools in provides tax incentives to encour- the threshold question whether Boston and across the nation. age small businesses to provide the minimum essential coverage coverage to their employees and provision in Section 1501 (the so- This Article examines the nearly mandates that certain large em- called “individual mandate”) was yearlong effort in this class to ployers provide coverage.11 Thus, a tax for the purposes of the Anti- craft arguments to aid the Court the Act builds upon the existing Injunction Act. If so, federal juris- in adjudicating a wide-ranging system of employer-sponsored diction over the individual man- dispute about the proper role health insurance. Third, the Act date will be deferred until at least of the federal government in expands eligibility for Medicaid, 2015, when individuals who have health care. In Part I, this Article thereby creating a uniform health paid the penalty may sue for a re- sketches the basic structure of care entitlement for more of the fund. The Respondents and the the ACA. Part II provides a brief poor.12 Congress provided that Government both argued against procedural history of ACA-related the federal government would this result; however, the Court ap- ligation. Part III and IV then ex- shoulder all expansion costs ini- pointed an amicus to brief and amine the law students’ efforts to tially, requiring the states to grad- argue that the Anti-Injunction

Volume 7, Issue 3 spring 2012 25 Boston University Law Class Files Affordable Care Act Amicus Briefs With the U.S. Supreme Court by Valerie Moore and Frederick Thide

ually assume a maximum of ten the states with reasonable notice percent of the costs associated The Eleventh Circuit held that to adjust their budgets and, if with the newly eligible population the individual mandate imper- required, to raise additional rev- by 2020.13 missibly regulates individuals by enue to support the expansion.23 forcing market entry.15 Accord- The court took pains to note that The balance of the ACA contains ingly, the court concluded that the states would not be required an assortment of health care pol- the mandate is an exercise of the to provide any funding for the ex- icy provisions, including public re- general police power, which is pansion until nearly seven years porting of company payments to expressly reserved to the states after enactment, in 2017.24 Fur- physicians, longer data exclusivity by the Constitution.16 The court ther, the court reasoned that the for large molecular weight drugs, further held that the mandate states were left with ample time and many attempts to control the was not essential (i.e., necessary to arrange for an orderly exit from increasing costs of health care. and proper) to implementation the federal-state Medicaid part- Although these provisions were of Congress’s broader regulatory nership by devising alternative not directly challenged in the liti- scheme.17 Rather, the Eleventh healthcare programs.25 Finally, gation, their fate will nonetheless Circuit reasoned that the numer- the court observed that the Med- hang in the balance as the Court ous exemptions and exceptions icaid Act provides the Secretary considers whether, in light of any to the individual mandate and the with discretion regarding funding constitutional infirmities, the bulk associated penalty would, in fact, decisions related to non-compli- of the Act can be salvaged under frustrate Congress’s objective of ance, and thus deeply discounted the doctrine of severability. growing the insurance risk pool.18 petitioners’ claim that all Medic- Thus, the court opined that Con- aid funding would automatically II. Taking the Battle to the Courts gress included the mandate be lost for failure to comply with merely to compensate insurance the expansion.26 Therefore, con- On March 24, 2010, only a day companies for their compliance sistent with all prior court chal- after President Obama signed the with the new federal regulatory lenges to Medicaid amendments, Act, fourteen states filed a lawsuit scheme.19 the Eleventh Circuit found the in federal district court in Florida. states’ claim that the ACA’s Med- Among other things, the states al- As to the Medicaid expansion, icaid expansion would leave the leged that the minimum essential the Eleventh Circuit held that al- states without a real choice un- coverage provision exceeded the though the Supreme Court has persuasive.27 yet to formulate an administrable Article I powers of Congress and III. Briefing the Issues that the Medicaid expansions test for coercion, the ACA’s expan- were coercively unconstitutional. sion of Medicaid falls short of the The goal of making an original Numerous lawsuits followed in point where “‘pressure turns into contribution drove the search for various federal district courts, compulsion.’”20 In reaching its amicus brief topics in our class. challenging everything from the holding, the Eleventh Circuit found Over 150 briefs were filed with the constitutionality of Medicaid it- several factors particularly com- Supreme Court in this case, many self to whether President Obama pelling. First, the court reasoned reiterating similar points on the was a citizen born in the United that the states impliedly waived issues. In such a crowded field, States. Constitutional challenges such challenges because, prior we wanted to avoid repeating ar- to the minimum essential cover- to joining the optional Medicaid guments made by the parties or age provision have garnered the program, the states were placed other amici. The topic that gar- most attention, as opponents of on notice that Congress reserved nered the most attention in the the Act have attacked this “pay or the right to alter, amend, or re- media and in the quantity of am- play” provision as a mandate that peal the Medicaid Act.21 Second, icus briefs filed below was the in- invades personal liberty.14 While the court found that the states’ dividual mandate. The Supreme these cases were litigated across coercion claims were belied by Court surprised most observers the country, the case that ulti- the federal government’s deci- when it also granted certiorari on mately made it to the Supreme sion to shoulder nearly all costs the challenge to the Medicaid ex- Court originated in Florida and associated with the ACA’s Medic- pansion because there had been was heard on appeal at the Elev- aid expansion.22 Third, the court no circuit split on this issue. Ac- enth Circuit Court of Appeals. noted that Congress had provided cordingly, fewer amicus briefs ad-

26 Spring 2012 Volume 7, Issue 3 Boston University Law Class Files Affordable Care Act Amicus Briefs With the U.S. Supreme Court by Valerie Moore and Frederick Thide dressed this topic. The granting factual distortions of the pro- would make. We also wanted to of certiorari on the Medicaid ex- gram, a major focus of our brief avoid unknowingly undermining pansion also raised concerns for became a factual statement of arguments made by the Respon- many Medicaid scholars, as there the history of the Medicaid pro- dents, who had to file their brief would be no reason for the Court gram, together with the legal only a week before ours. By the to accept the challenge unless it precedents for Medicaid expan- time their Merits Brief was filed, was seriously considering invali- sion. We decided not to respond it was too late to make any chang- dating the expansion. to some of the more provocative es to our brief, except for small and extreme amici, as this could changes at the margin. When the Supreme Court set the only give more traction to some of briefing schedule for the chal- their more audacious claims. After many drafts, our nearly fi- lenge to the ACA, it set the dead- nal brief was circulated to health line for Petitioners to brief the Because many other ideas were policy scholars across the coun- challenge to the individual man- floating around, the approach we try in the first week of February. date in early January, followed by took was to have various teams More than 50 signed on to the severability in early February, and write up short 2,000 to 3,000 brief, which was filed on February the Medicaid expansion in mid word sections on various ideas 17, 2012. At oral arguments on February.28 Three teams from our as to what should be in the brief, March 28, 2012, several ques- class wrote individual mandate and then to decide which ones tions seemed directly taken from briefs; our team settled on Medic- were the most important points our brief, although the Justices aid. Professor Outterson reached to get across and then tie them did not mention it by name. out to several Medicaid scholars together. With a strict word limit IV. Oral Argument and formed a group of profes- of 9,000 words, many excellent sors who wanted to work with us pages were cut. The provision of the Social Securi- on the brief. They were eager to ty Act which gives the Secretary of provide an amicus brief on this is- One section that survived the ed- Health and Human Services the sue because Medicaid has a long iting process looked carefully at discretion to withdraw some or history of being expanded by Con- the text of the Medicaid expan- all of a state’s Medicaid funding gress and upheld by the courts sions in the ACA. This section if the state does not comply with without any constitutional con- focused on the structure of the the program requirements re- troversy at all, which is precisely amendments, looking at the way ceived a lot of attention from the the point that we chose to make the law was written to try to parse Justices.30 Justice Breyer ques- in the brief. out exactly what part of the stat- tioned the Petitioners on how the ute the states objected to. Be- provision could be an issue when All of the Medicaid briefs filed on cause the states did not identify it had been in the Social Security behalf of the Petitioner states fo- which precise part of the Title II Act since 1965, while Chief Jus- cused on the financial burdens of expansion was coercive, part of tice Roberts and Justice Kagan Medicaid and general complaints the brief walks through the ele- questioned the Respondents on about the program.29 Few offered ments of the expansion they do how the Secretary had exercised any substantive legal argument mention and explains why each that discretion in the past and or direct attack on any particular provision is not coercive. how the Secretary might use it section of the ACA. In writing an in the future.31 Justice Ginsburg appellate brief, one is inherently Throughout assembling the brief, asked the Petitioners whether torn between writing to advance the group informally consulted it mattered that some states the argument one wants to make, with other groups who were writ- liked the Medicaid expansion and responding to the arguments ing amicus briefs in support of and wanted to keep it, an argu- made by the other side. Because Respondents, as well as attorneys ment that we made in our brief.32 our brief was in support of the at the Department of Justice. Some of the material from our Government as Respondents, we While we were solely responsible brief also appeared in a question had the advantage of filing after for writing our brief, coordinating by Justice Breyer, when he asked the Petitioner states’ Merits Brief with other groups was essential how the current expansion could and their amici. After reading to make sure that we were not be found unconstitutionally coer- what we considered to be gross repeating arguments that they cive without jeopardizing the past

Volume 7, Issue 3 spring 2012 27 Boston University Law Class Files Affordable Care Act Amicus Briefs With the U.S. Supreme Court by Valerie Moore and Frederick Thide

expansions.33 Justice Kennedy statute is capable of functioning without 2011). questioned the Respondents on the severed provision. See Tom Campbell, 17 See id. at 1309-11. Severability of Statutes, 62 Hastings L.J. 18 See id. the Maintenance of Effort provi- 1495, 1505-06 & n.51 (2011). 19 Id. 1310. sion, which we had discussed at 5 Although the Court has paid lip service 20 See id.at 1265-68 (quoting Steward some length.34 to the concept of coercion, it has never Mach. Co., 301 U.S. at 590). invalidated a federal law on this ground. 21See id. at 1267 (citing 42 U.S.C. § 1304); V. Conclusion See, e.g., South Dakota v. Dole, 483 U.S. see also Harris v. McRae, 448 U.S. 297, 301 203, 211-12 (1987); Steward Mach. Co. v. (1980). From the months of heated de- Davis, 301 U.S. 548, 590 (1937). 22 Florida,648 F.3d at 1267-68. bate leading up to its passage, 6 E.g., Brief of Jewish Alliance for Law 23 Id at 1268. & Social Action et al. as Amici Curiae 24 See id. to the challenges to the ACA filed Supporting Petitioners, Dep’t of Health 25 Id. immediately after the legislation and Human Servs. v. Florida, No. 11-398 26 Id. (citing 42 U.S.C. § 1396c). was passed, to the extraordinary (U.S. Jan. 13, 2012) (Individual Mandate), 27 See id. (“These factors convince us volume of amici the case has at- available at http://aca-litigation.wikispaces. that the Medicaid-participating states have com/file/view/Jewish+Alliance+amic a real choice—not just in theory but in tracted at every stage of litigation, us+%2811-398%29.pdf; Brief of Health Law fact—to participate in the Act’s Medicaid the story of healthcare reform & Policy Scholars et al. as Amici Curiae expansion.”);see also Wilder v. Virginia is replete with voices from every Supporting Respondents, Florida, 11-400 Hosp. Ass’n, 496 U.S. 498, 502 (1990) (U.S. Feb. 17, 2012) (Medicaid Expansion), (noting that participation in Medicaid is part of the ideological spectrum. available at http://aca-litigation.wikispaces. voluntary but subject to conditions). Our brief is one voice in a discus- com/file/view/Health+Law+%26+Policy+S 28 Brad Joondeph, A Tentative Briefing sion that will continue long after cholars+amicus+%2811-400+Medicaid%29. Schedule, ACA Litigation Blog (November the Supreme Court hands down pdf. 14, 2011), http://acalitigationblog.blogspot. 7 See 42 U.S.C.A. § 18091. com/2011/11/timing.html. its opinion in June and will hope- 8 See id.§§ 300gg-1(a), 300gg-3, 300gg- 29 E.g., Brief of Indiana State Legislators, fully inspire others to engage in 4(a). the James Madison Institute, and a conversation that affects every 9 26 U.S.C.A. § 5000A (West 2011) Christopher Conover, No. 11-400 (U.S. resident of the United States. We (effective Jan. 1, 2014). The individual Jan. 17, 2012), available athttp://www. mandate ensures that the cost of covering americanbar.org/content/dam/aba/ are grateful that Boston Univer- higher-risk individuals (e.g., the elderly and publications/supreme_court_preview/ sity School of Law offered this chronically ill) is subsidized by lower-risk briefs/11-400_petitioner_amcu_isl. unique class this year. individuals (e.g., the young). See Roger authcheckdam.pdf L. Pupp, Community Rating and Cross 30 42 USC §1396(c), see generally Subsidies in Health Insurance, 48 J. Risk & Transcript of Oral Argument, Florida v. U.S. (Endnotes) Ins. 610, 610–11 (1981). Dep’t of Health and Human Services (No. 1 Patient Protection and Affordable Care 10 See, e.g., 42 U.S.C.A. § 300gg-12 (ban 11-400). Act, Pub. L. No. 111-148, 124 Stat. 119 on rescissions); id.§ 300gg-11 (no lifetime 31 Transcript of Oral Argument at 12, 49, (2010), amended by Healthcare and or annual limits). Florida v. U.S. Dep’t of Health and Human Education Reconciliation Act of 2010, Pub. 11 26 U.S.C.A. §§ 45R, 4980H (West 2011). Services (No. 11-400). L. No. 111-152, 124 Stat. 1029 (2010). 12 See 42 U.S.C.A. § 1396a(a)(10)(A)(i) 32 Id. at 20. 2 See Abbe R. Gluck, Intrastatutory (VIII) (West 2003 & Supp. 2011); Sara 33 Id. at 24. Federalism and Statutory Interpretation: Rosenbaum, Realigning the Social Order: 34 Id. at 52. State Implementation of Federal Law in The Patient Protection and Affordable Care Health Reform and Beyond, 121 Yale L.J. Act and the U.S. Health Insurance System, 7 534, 582-94 (2011). J. Health & Biomedical L. 1, 16–17 (2011). 3 For a thoughtful critique of the Court’s 13 See 42 U.S.C. § 1396d(y)(1). To practice of appointing amici to defend permit the states adequate time to plan orphaned arguments, see Brian P. Goldman, for shouldering their relatively modest Note, Should the Supreme Court Stop share of implementation costs, the federal Inviting Amici Curiae to Defend Abandoned government will pay all expansion costs Lower Court Decisions?, 63 Stan. L. Rev. between 2014 and 2016. Id. Thereafter, the 907 (2011). states’ share will gradually increase before 4 Severability is often described as a reaching a capped contribution of 10 percent doctrine of judicial restraint. See Adrian in 2020 and subsequent years. Id. Vermeule, Saving Constructions, 85 14See Abigail Moncrieff, The Freedom of Geo. L.J. 1945, 1946 (1997) (describing Health, 159 U. Pa. L. Rev. 2209 (2011). severability as “a norm of legislative 15 See generally Comment, In Search of supremacy positing that statutes should take Limiting Principles: The Eleventh Circuit effect to the full extent the Constitution Invalidates the Individual Mandate in permits”). When a court finds that part of Florida v. U.S. Department of Health and a statute is unconstitutional, it seeks to Human Services, 53 B.C. L. Rev. 359 preserve the legislative bargain so long as (2012). (1) Congress would have passed the statute 16 Florida v. U.S. Dep’t of Health & Human but for the constitutional defect and (2) the Servs., 648 F.3d 1235, 1311-13 (11th Cir.

28 Spring 2012 Volume 7, Issue 3 Obtaining an OIG Advisory Opinion: The General Counsel’s Perspective - Interview of Daniel Orenstein, General Counsel, athenahealth, Inc.

By Julia R. Hesse

As many of you may know, athena- It’s a “chicken and egg” question. Actually, we started influencing health, Inc. recently received a fa- I was called into a meeting with the development of the business vorable Advisory Opinion from the the CEO and our head of Business model so that it would be con- Office of Inspector General (Advis. Development, who were discuss- sistent with what we thought the Op. 11-18, December 7, 2011). ing this business idea. They knew request was going to be – that Athenahealth is best known for that it raised some potential anti- process began months before we its Internet based practice and kickback issues and they raised initiated the request and was on- revenue cycle management, and the issue of a potential advisory going throughout the time the re- electronic health record services. opinion with me because we had quest was being made. You have Athenahealth also offers patient already discussed seeking advi- to continue to be vigilant about communications, and care co- sory opinions in other situations. the approach you are taking be- ordination services on the same The anti-kickback analysis was cause the product development integrated technology platform. often part of the initial conversa- concepts are changing all the The favorable Advisory Opinion tion on a major initiative. time. By the time we contacted relates to athenahealth’s care co- outside counsel, we were well ordination service. The Advisory What was different about this on the way to internally reinforc- Opinion itself has been discussed project that made you decide ing the model based on what we in the press and also by trade to go forward with the Advisory thought we would be submitting associations like the American Opinion process? as the model under the advisory Health Lawyers Association, and opinion. is interesting in its own right. This was a new planned service offering in the “drawing board” Did you have the opportunity The purpose of this interview is stage and where we had the to discuss the idea informally not to discuss the substance of strategic opportunity to get the with the OIG before the formal the Advisory Opinion, though. In- security of the opinion. It wasn’t request was made? stead, I recently sat down with a “must-have” because it is a Daniel Orenstein, the General complimentary service offering No. The OIG has a set process Counsel of athenahealth, Inc., to – while it was a highly strategic where they wanted the written discuss the process of obtaining initiative, if we got some nega- request and then they take some the Advisory Opinion. The ques- tive feedback we could work with time and ask for more informa- tions are all mine; Daniel provid- it … and the prospect of getting tion. That’s when you kind of ed all answers. positive feedback outweighed get into more of a dialogue. But the negative. Also, because it is the OIG is clear; they wanted the Is this is the first Advisory Opin- a new service offering – essen- initial request in writing. We did ion your company had sought? tially creating a new market for explore with outside counsel, information exchange outside of though, whether it was possible Yes. the usual paradigms – getting an to withdraw the advisory opinion advisory opinion could give us a request if the OIG reacted very Who within the organization competitive advantage. negatively to the concept. started the conversation with regard to getting an advisory What was the process once you Did you have any ability to di- opinion? decided to seek an advisory rect your advisory opinion re- opinion? quest to a particular person

Volume 7, Issue 3 spring 2012 29 Obtaining an OIG Advisory Opinion: The General Counsel’s Perspective - Interview of Daniel Orenstein, General Counsel, athenahealth, Inc. by Julia R. Hesse

within OIG (i.e., someone who We received two requests for ad- may have been known in the ditional information, and there We submitted it in May or June community as being more fo- were a couple of questions which (of 2011) and we had the opinion cused on Health IT issues)? we answered verbally. We also in December. I was pleased that had to submit a factual certifica- we had it within the year. The No. We were assigned an attor- tion at the end prior to issuance OIG responded very quickly, as ney who turned out to be very of the opinion, and there was a compared to a number of other engaged and very good and easy round of back-and-forth on the agencies that we work with. Also, to work with and responsive. We factual certification. some of that time was spent on were very concerned, though, our side, with internal process- when we got the OIG’s initial re- Did some of their requests for ing of responses back and forth. quest for additional information, information make it clear that The OIG responded efficiently – because the tone of the request perhaps they didn’t understand which is great because pressure seemed to indicate that maybe the model in the way that you started mounting towards the there were some things about would want to present it? Were end of the year to roll the service the model that they didn’t un- you surprised at all by the con- offering in general availability at derstand, or we didn’t commu- tent or the depth of their re- the beginning of 2012. I was a nicate adequately enough. But quests for information? little surprised that the OIG was when we started engaging with so responsive. I had the “Plan the OIG about their questions, we The OIG’s requests were pretty B” starting to formulate just in got through that and the OIG felt much what we anticipated. We case we didn’t have the Advisory that we were able to respond ad- knew we would get some ques- Opinion in hand before that sales equately. tions and we would probably have meeting in February. a little work to do to respond. The Did you send all of your informa- OIG had a lot of questions around When you think about it from tion to the OIG only in writing? the economic model. I think they the OIG’s perspective, though, Or did you have an opportunity were correct to push us on that, they must love getting the advi- to present the vision of the proj- because we hadn’t articulated it sory opinion requests because ect to them, either in person or as clearly as we should have and that’s where they get to do the over the phone? it forced us to go back and spend big policy-level thinking, right? some significant time internally. We didn’t do any communications We revised the pricing model to Yes. When we received the work directly. All of the communica- make it simpler. I, personally, was product back from the law firm, tions were through our outside on a crusade to make the model we felt it needed more of the counsel. We suggested meeting simpler. We needed to make the policy argument in it because we in person as a possibility and we pricing model simpler – not only wanted to appeal to that bigger would have done that. The OIG for the OIG, but we needed to picture thinking. We think there wanted our first response in writ- make it simpler for the market to are some really strong public ing; we offered to do a “demo” of understand this. If we can’t com- policy arguments in favor of this the product but the OIG decided municate it adequately to a so- model because it facilitates care they did not need a demo. We did phisticated government agency, coordination. There are a lot of provide some charts and graphi- just think about communicating it folks in the government who are cal representations of what we to a two or three doctor practice interested in that now because were doing as exhibits that I think that doesn’t have a lot of time. I of the challenges with making were very helpful. In one of the think that was probably the most health exchange work properly. rounds of responses we tried to salutary part of the process. We So, we worked to include the pub- make it simpler and easier to un- actually got to a simpler econom- lic policy argument and I think, at derstand than some of the narra- ic model out of the process. the end of the day, that was an tive that we had given previously. important factor in the decision How long did the advisory opin- making. How many rounds of back-and- ion process take? And how forth did you have with the OIG? long did you think it was going I can see why you would want to take? to put the request in context

30 Spring 2012 Volume 7, Issue 3 Obtaining an OIG Advisory Opinion: The General Counsel’s Perspective - Interview of Daniel Orenstein, General Counsel, athenahealth, Inc. by Julia R. Hesse and explain not only why it matters for the business, but also who it benefits and why?

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

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

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

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

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

Volume 7, Issue 3 spring 2012 31 Policymaker Profile: Interview ofÁron Boros, Commissioner, Massachusetts Division Of Health Care Finance & Policy

by Phillip Rakhunov

Introduction Interview teractions between federal and state policy at the systematic level. On August 22, 2011, the Patrick-Mur- Mr. Boros, please tell me about ray Administration announced the how you became interested in pub- I want to ask you a few questions appointment of Áron Boros as Com- lic health? about your background, going missioner of the Division of Health back to your years at Amherst Col- Care Finance and Policy. Since My dad is a doctor. He is an oncolo- lege. During your time at Amherst, 2008, Mr. Boros has served as Direc- gist, and oncology plays a particularly were you already considering go- tor of Federal Finance for state’s Of- important role in our society. It’s ex- ing into public service? fice of Medicaid. citing medicine, it’s challenging medicine, and for many reasons: not just I was. I always knew that there was In his capacity as Director of Federal the science of it, but also the human an underlying social mission for me Finance at MassHealth, Mr. Boros aspect of it. I always knew, however, that was going to be more than, for has been engaged in key initiatives, that I did not want to spend fifteen example, investment banking. But, including MassHealth and federal years in [medical] school after high back then, I certainly didn’t know expenditures. Over the last several school, so ultimately I did not think what that was going to be. My first years, he has been deeply involved that medicine was the direction I job out of college was at a graphic de- in a variety of health care payment wanted to go in. sign firm, but I always had that sense initiatives, including the MassHealth that giving back is important. I’ve Section 1115 Medicaid waiver and What really inspired me to go back been given a lot of opportunities and and Health Safety Net programs. to graduate school was– and this will I’ve been blessed with certain advan- date me a little bit – it was the Su- tages in life, and I felt that there was Mr. Boros is also an attorney and re- preme Court election case of Bush v. a responsibility that came along with ceived his J.D. and Masters in Public Gore. Yes, Bush v. Gore drove me to that. I can’t say that I knew, when I Policy from the University of Michigan. law school. Even then, I knew I didn’t was graduating from Amherst, exact- Prior to joining the Office of Medicaid, really want to be a lawyer in the long ly how that would play out - but it’s no Mr. Boros worked as an Associate in term, but I also knew I wanted more surprise to me that I ended up in this Foley Hoag’s Boston Office, where he tools than a policy degree would kind of role. researched and implemented strate- give. So, I went to the University of gic initiatives for health care industry Michigan for a joint program in Law Tell me how your legal education clients. His work included initiatives and Public Policy, hoping to develop a at the University of Michigan im- related to chronic disease manage- career in healthcare policy and policy pacted your career. ment, health information technology, making. So fast forward, and this and evidence-based medicine. In is a dream job for me. The Division While I was in law school, I did two re- this role, Boros became an expert on of Health Care Finance & Policy really meaningful things that influenced Medicaid and Medicare regulatory ally straddles both those worlds. It’s my career path. First, I worked for the issues, including national coverage deep in the weeds on data analysis, General Counsel’s office at the Trinity decisions, coding and payment con- data collection, and ultimately in re- Health’s Saint Joseph Mercy Hospital cerns. Mr. Boros also has experience ally drawing a story out of the data at in Michigan. It was a really interest- in a hospital setting, having served as the lowest level. At the same time we ing look into what healthcare law a Law Clerk at Trinity Health’s Saint are involved in helping shape Mas- really is. I think that a lot of law stu- Joseph Mercy Hospital in Michigan. sachusetts state policy and the in- dents don’t understand how much

32 Spring 2012 Volume 7, Issue 3 Policymaker Profile: Interview of Aron Boras, Commissioner, Massachusetts Division Of Health Care Finance & Policy by Phillip Rakhunof of healthcare law is transactional, Yes. For several years after law textbook law; in policy school, I as opposed to things like end of life school I worked at Foley Hoag LLP, learned textbook economics and sta- decisions, or policy about minimum in their government strategies group. tistics; at the Hospital, I learned what credible coverage. When you look There, I got my education from Nick health law really was; and with the at what hospitals are actually doing Littlefield and his team about how union, I started my education in poli- day-to-day and what they need legal the world really works with respect to tics and learned about power of ne- advice about, you realize that most policy making and the way things get gotiation and bargaining; then, I went health law is transactional. done in Washington. I also did a lot to work for Nick [Littlefield at Foley] of pricing work, working with payers. and learned how policy making and Take a big, integrated health care For example, some of our clients had politics happen in the real world at system: hospitals, physician groups, medical products of one kind or an- the State and Federal level; and then and other sites of care like commu- other, and we worked with Medicare went to work for the State and really nity health centers. Because they and Medicaid about how those prod- got to understand how the sausage are big employer, they have a lot of ucts would get paid for. After Foley, I gets made. labor and employment issues. They left to go work for the Patrick Admin- What led you to begin your public are land-owners, so they have real istration in the Medicaid office. service with the State Medicaid estate and capital assets issues. Of Tell me about your work with the Office? course mergers and acquisitions Medicaid Office. and contracting have unique health law concerns, such as compliance Primarily, it was that Massachusetts with self-referral and antitrust laws. At the Medicaid Office, I worked on continues to be a leader in taking a hard look at the health care system Contracting also involves increasingly the financial aspects of the federal/ state relationship. and making it better. Governor Pat- complicated relationships between rick is upholding a long tradition of hospitals, physician groups, and oth- And, is that the program known as leadership on health care issues that er kinds of ambulatory care providers the MassHealth? stretches back for at least 20 years. and long term care providers, not to Lots of people deserve credit for lay- mention health plans. Other indus- So, you can decide how much you ing the foundation that the Governor tries aren’t regulated to the same want to get into the weeds on this, but is building on, including Governor extent as health care. Here we have it’s probably good for people to un- Dukakis, Senator Kennedy, and Mitt special rules surrounding health care derstand that MassHealth is a specif- Romney (whether he acknowledges arrangements because of Medicare ic state program that provides health it or not). and Medicaid, for example. So, every care services. Medicaid is the state- merger, every contract, has another federal partnership that overlaps I want to ask you about a couple layer of complexity. The legal clerk- most, but not all of what MassHealth of the initiatives that I understand ship that I did at the Mercy Hospital does. For example, Commonwealth you worked on while you were at was the first time I heard about Stark Care it is also part of the Medicaid Of- the Medicaid Office and which I laws; first time I heard about anti- fice. So is the Health Safety Net that believe are now a part of your ar- kickback laws. we run here at the Division of Health eas of responsibility. One that you Care Finance & Policy and the Medi- mentioned earlier is the Health The other really important thing that cal Security Program run by Division Safety Net. I did when I was in law school is that of Unemployment Assistance. The I worked for the graduate employees Office of Medicaid is bigger than just The Health Safety Net is a program union. I was on the bargaining team MassHealth. run by my office that pays hospitals that represented graduate employ- and community health centers for ees in a couple different roles. And It is clear that you have had quite a care that otherwise would be uncom- that was also a really an important diverse education and professional pensated. This covers people who ei- part of my career development. experiences; please tell me how ther are uninsured or under-insured these experiences have come to- for the services provided by the hos- After law school, you spent some gether for you. pital. time in the private sector at the law firm of Foley Hoag? It all comes together as kind of build- Federal Health Reform (the Afford- ing blocks: in law school, I learned able Care Act) will have a significant

Volume 7, Issue 3 spring 2012 33 Policymaker Profile: Interview of Aron Boras, Commissioner, Massachusetts Division Of Health Care Finance & Policy by Phillip Rakhunof

impact on the Health Safety Net be- about it – but it’s hard to do in prac- That said, the choices and challenges cause of the way it changes the cov- tice. will only get harder and I encourage erage market. Over the next couple people who are thinking about this to of years, until those federal rules If you know nothing else about the continue to be bold while maintaining come into effect, we will be taking a big picture of health care policy, civil discourse, in order to push the hard look at how the Safety Net fits take this: the [Centers for Medicare envelope of what we can accomplish. into everything else that is going on & Medicaid Services] just released with the implementation of the ACA in data showing that in Massachusetts, As you know, we are coming into Massachusetts. per capita healthcare expenditures what is anticipated to be a very for every man, women and child are heated election year, and I’m Is the Safety Net program unique $9,278 per year. That means that, wondering whether the political to Massachusetts? on average, my family of three is pay- climate impairs your ability to do ing almost $30,000 a year for health your job of analyzing the data and Yes. It’s a claims-based system for care expenditures. trying to make decisions based on paying for uncompensated care, the numbers and economics, as opposed to politics. which I believe is unique among This figure includes Medicare, Medic- states. aid, out of pocket, and insured costs that either you or your employer are The Division has, and deserves, a What is your take on the recent paying in premiums, distributed strong reputation for providing objec- conversations about cost contain- among the population. This is the tive analysis. I don’t see that chang- ment and payment reform? highest per capita cost of all of the ing. We can’t control what different states, in the highest per capita cost people try do with our analysis, but country in the world. We can reduce our reputation speaks for itself: we The Patrick administration, from those costs. It will be hard, it will re- stick to our best understanding of the Governor and the Secretary [of ally take change to accomplish this, what the data tells us. Health and Human Services], down but it is possible and there is no rea- to agencies like ours, has proposed son for us to be the most expensive Is there one issue that you would an approach that achieves cost con- health care system in the world. like to bring to the forefront of the tainment by promoting integration readers’ minds? of the delivery system and improve- You’ve been in this job now for six ment of the experience of care and months or so. What has surprised No matter what happens, there is go- the delivery of care. Instead of a hos- you the most coming into this paring to be a lot of change in the health pital and a physician never speaking ticular position of the Common- care system in the next few years. to each other and having their own wealth? Your clients are going to need to in- isolated connections to the patient, vest in understanding value. What I we want to build those connections. There are a lot of hard choices to be mean by that is that they are going That way, the physician knows when made about lowering costs and im- to be asked more and more to prove a patient goes to the hospital and proving quality, and there are lots of that their piece of the heath system manages some of their care in the complex interactions between vari- provides high-quality care that actu- hospital; for its part, the hospital ous stakeholders inside and outside ally makes people healthier and hap- communicates about discharge back of government. What has surprised pier at a reasonable price. Attorneys to the physician and helps coordinate me the most is the high level of colle- who understand that communicating follow-up care to ensure the patient giality in the face of those hard choic- about value is going to drive a suc- doesn’t end up back in the hospital. es and difficult tradeoffs. I expected cessful business model will be posi- there to be more contentiousness be- tioned to best support their health The goal is to use the transformation tween the parties. When push comes care clients. To be a little bit more of the delivery system to drive higher- to shove with the cost containment concrete, right now we are talking value care – better quality, and lower legislation, that may change. But I about cost and payment systems, cost – by taking advantage of the have been really impressed by the integrated care. The conversation improvements that you can get by level of discourse inside and outside of tomorrow will be quality measure- breaking down some of these walls. the Statehouse, and how everybody ment, outcome measurement, and The idea is appealing, and it’s easy really is taking this problem seriously. really proving that the money spent is to string together some sentences delivering results. I anticipate that at-

34 Spring 2012 Volume 7, Issue 3 Health Law Brief: Board of Registration in Medicine v. Sturdy Memorial Hospital, 2011 WL 7102574 (Mass. Super. Dec. 12, 2011) by Leda Tabaie with credit to Jennifer Gallop, Esq. and Anthony J. Cichello, Esq

In December of 2011, the Superior to “foster aggressive critiquing per Section 204(a), the Notes were Court of Massachusetts enforced of medical care by the provider’s not then subject to production to an investigative subpoena issued peers.” 2 G.L. c. 111, § 204(a) the Board, which had not yet com- by the Massachusetts Board of protects so-called “core materi- menced an adjudicatory proceed- Registration in Medicine (“Board”) als,” i.e., the proceedings, reports, ing. In contrast, the Board argued to Sturdy Memorial Hospital, Inc. and records of a medical peer re- that the Notes were only protected (“Sturdy”), compelling the disclo- view committee. Section 205(b) by Section 205(b) which allows the sure of materials claimed by Sturdy protects from disclosure the “raw Board to inspect, maintain, and uti- to be privileged core materials of materials” of a peer review com- lize such raw materials prior to the medical peer review committee. mittee, specifically, “[i]nformation commencement of formal adjudi- The subpoena at issue sought to and records which are necessary catory proceedings. compel the production of certain to comply with risk management handwritten notes (“Notes”) cre- and quality assurance programs… In finding that the Notes at issue ated by Sturdy’s Medical Director and which are necessary to the constituted raw materials, the Stur- concerning a physician, Dr. Doe, work product of medical peer re- dy court relied heavily on the analy- about whom complaints had been view committees.” Both catego- sis of the Supreme Judicial Court lodged. The Board sought all docu- ries of peer review material are (“SJC”) in its 2009 case, Hallmark, ments pertaining to Dr. Doe, includ- protected from disclosure to third in which the SJC distinguished peer ing documents relating to incident parties except the Board of Regis- review core materials protected un- reports referencing the physician tration, which can obtain the Sec- der Section 204(a) from Section and the investigation thereof, such tion 205(b) materials upon request 205(b) raw materials. In Hallmark, as the Notes. Sturdy objected to but can only obtain Section 204(a) the SJC recounted the statutory producing the Notes, claiming they core materials after the institution history of the peer review privi- were protected by the medical peer of a formal adjudicatory proceed- lege, noting that, in 1987, it had review privilege under G.L. c. 111, ing. 3 held that Section 204(a) did not § 204(a). The Board asserted that protect “raw materials” relied on the Notes are protected under G.L. In the Sturdy case, the medical by a peer review committee if they c. 111, § 205(b), which would allow director, Dr. Pietro, served as the were obtained from other sourc- for the production of such materials coordinator of the hospital’s Pa- es.4 In response to that decision, to the Board prior to the institution tient Care Assessment Program the Massachusetts Legislature of a formal administrative proceed- (“PCAP”) and as chairman of its enacted Section 205(b) to extend ing under G.L. c. 30A. The Superior Clinical Risk Management Com- the medical peer review privilege Court agreed with the Board, hold- mittee (“CRMC”). Both of these to documents that might otherwise ing that the Notes constituted raw programs operated as peer review fall outside the scope of Section materials protected only by Section functions under the hospital’s by- 204(a), but that are nonetheless 205(b) and were therefore immedi- laws. To support its claim that necessary to risk management ately discoverable by the Board.1 the Notes were protected under and quality assurance programs. Section 204(a), Sturdy introduced The Hallmark court pointed out The fundamental purpose of the an affidavit from Dr. Pietro which that while both sections shield in- medical peer review privilege is claimed that the Notes were core formation from the general public to achieve quality health care by materials made pursuant to his and other third parties, Section promoting candor and confidential- duties as coordinator of PCAP and 204(a) shields information from ity in the peer review process and CRMC. Thus, Sturdy argued that, the Board only until the Board com-

Volume 7, Issue 3 spring 2012 35 Health Law Brief: Board of Registration in Medicine v. Sturdy Memorial Hospital, 2011 WL 7102574 (Mass. Super. Dec. 12, 2011) by Leda Tabaie

mences formal proceedings under This case takes a very narrow view that a more restrictive definition of G.L. c. 30A, whereas raw materials of the materials protected by Sec- the core peer review protection of protected under Section 205(b) tion 204(a) from disclosure to the Section 204(a) and the heightened may be inspected, maintained, and Board during the investigatory possibility of early-stage disclosure utilized by the Board upon request. stage. While Hallmark and Beth of materials to the Board of Reg- Israel both held that raw materials istration disciplinary unit, particu- The SJC found this distinction to be obtained from other sources were larly notes created by the Medical consistent with the overarching ob- subject to production to the Board Director or another physician peer jectives of the medical peer review during this stage, neither required review committee, could under- privilege because only the Board, the production of the work product mine the candor and openness and not the general public, would of the hospital’s Medical Director that is necessary for an effective gain access to the materials and in the course of his duties as the peer review process. they would remain confidential. coordinator and chairman of the The Board, the court reasoned, hospital’s designated peer review (Endnotes) is part of the regulatory scheme committees. In analyzing contest- 1 Board of Registration in Medicine v. intended to protect the public in- ed materials regarding privilege, Sturdy Memorial Hospital, No. MICV2011- terest by promoting the highest the Sturdy court seemed to em- 04006-C, 2011 WL 7102574, *4 (Mass. quality medical services through phasize form over substance in a Super. Dec. 12, 2011). 2 Board of Registration in Medicine v. conducting disciplinary proceed- way that favors Board access. The Hallmark Health Corporation, 454 Mass. ings. In its analysis, the Hallmark Court gave little credence to the 498 (2009). court also explained that the prop- Medical Director’s affidavit explain- 3 G.L. c. 111, §§204(a), 205(b). er inquiry for determining what ing the purpose for which the Notes 4 Beth Israel Hosp. Ass’n. v. Board of Registration in Medicine, 401 Mass. 172, protective status the Notes would were created. Instead, it focused 183 (1987). receive involved analyzing “the way on timing and the fact that a peer 5 Sturdy, 2011 WL at *2, citing Hallmark, in which a document was created review committee had not yet con- 454 Mass. at 509. 6 See Beth Israel Hospital Association v. and the purpose for which it was vened. Indeed, the court observed Board of Registration in Medicine, 401 5 used, not…its content.” that the “Notes may, at some point Mass. 172, 183 (1987) (“Section 204 be necessary work product of a does not protect information generated by The court rejected Sturdy’s conten- medical peer review committee” other components of the QPCAP system or the ‘raw materials’ relied on by a [peer tion that the Notes were created and presumably then would be pro- review committee] if obtained from other 7 by, for, or otherwise as a result of tected from Board review. sources.”); Carr v. Howard, 426 Mass. 514, a medical peer review committee, 522 n.7 (1998) (holding that protection noting that, at best, the materials This ruling, if followed by other under Section 204(a) only applies to documents which are themselves a product were created “for” a peer review courts, could have practical im- of the proceedings, reports, and records of committee. Even if created “for” plications for health care provid- a peer review committee, and not merely such a committee, the court never- ers. The Notes were not specifi- materials made to be presented to such a theless found the Notes to be only cally designated as privileged peer committee). 7 Sturdy Memorial Hospital, 2011 WL at raw materials protected by Section medical review materials and the *4. 205(b). In making this finding, the Medical Director was not careful court placed particular emphasis about specifying in what capac- on the fact that the Notes were ity he was creating the Notes. At- not made in response to a specific torneys should consider advising request by a medical peer review healthcare clients to be mindful committee, but instead were made of the timing and process for pro- in anticipation of potential con- tecting materials under the medi- sideration by such a committee. cal peer review privilege. Further- The court reasoned that, because more, early on, clients may want to there was no evidence on record consider convening a formal review that a peer review committee ever committee meeting to preserve the convened, generated any record, confidentiality of materials made in or rendered any decision concern- connection with incident reports or ing Dr. Doe, the Notes were not pro- investigations of professional mis- tected under Section 204(a).6 conduct. Finally, there is a concern

36 Spring 2012 Volume 7, Issue 3 Health Law Brief: Gauthier v. Director of the Office of Medicaid, 80 Mass. App. Ct. 777 (2011) by Matthew S. Buehler

The Massachusetts Medicaid tent that the transaction does not The plaintiff suffered from Al- plan, MassHealth, pays for nurs- have an ascertainable fair-market zheimer’s disease. By Septem- ing home care received by individ- value or if the transaction is not ber 2004, when the plaintiff was uals who have less than $2,000 embodied in a valid contract that 79 years old, her condition had in assets and meet certain other is legally and reasonably enforce- reached the point where she criteria.1 This creates an incen- able by the applicant.”4 However, could no longer live alone and tive, however, for individuals to even if a disqualifying transfer she moved in with her son and give away their assets to friends has occurred, no ineligibility peri- his wife (the plaintiff’s daughter- and families in order to qualify for od will be imposed if the applicant in-law). The son and daughter- nursing home benefits. To mini- “demonstrates to the MassHealth in-law subsequently renovated mize this incentive, MassHealth agency’s satisfaction that (1) the their home and built a living area reviews asset transfers made by resources were transferred exclu- for the plaintiff. In March 2006, 2 an applicant. The Appeals Court sively for a purpose other than to the plaintiff entered into a Care Gauthier v. Director of the Of- in qualify for MassHealth; or (2) the Agreement (“the Agreement”) fice of Medicaid , 80 Mass. App. [applicant] intended to dispose of with her son. Under the Agree- Ct. 777 (2011), reviewed such the resource at either fair-market ment, the son agreed to provide an asset transfer in the form of a value or for other valuable con- the plaintiff with lodging, 3 meals care agreement. sideration. Valuable consider- a day and weekly houseclean- ing and laundry services. In re- ation is a tangible benefit equal Specifically, the plaintiff inGauth - turn, the plaintiff agreed to pay to at least the fair-market value of ier entered into a care agree- $225,000 up-front to her son. the transferred resource.”5 ment with her son whereby she transferred all of her assets to After 90 days, the son had the The ineligibility period (in months) him. The plaintiff applied to right to terminate the Agreement imposed for a disqualifying trans- MassHealth roughly two years for “good and sufficient cause” fer of assets is “equal to the to- later for nursing home benefits. and keep any payments. “Good MassHealth, however, found that tal, cumulative, uncompensated and sufficient cause” was de- the care agreement was a dis- value ... of all resources trans- fined to include if the plaintiff qualifying asset transfer. ferred ... divided by the average could no longer care for her per- monthly cost to a private patient sonal needs, including bathing or MassHealth reviews all asset receiving nursing-facility services dressing herself. The Agreement transfers made an applicant for in … Massachusetts at the time remained in effect over 2 years nursing home benefits within the of application, as determined by until the son terminated it in May 6 five years preceding the applica- the MassHealth agency.” The 2008 after he had back surgery tion. If MassHealth determines “uncompensated value” of a re- and could no longer lift the plain- that an applicant has made a source is defined as “the differ- tiff. At that time, the plaintiff had “disqualifying transfer” of assets ence between the fair-market paid $182,000 to her son and did during that period, it imposes a value of the resource ,,, at the not have any further assets. period of ineligibility before the time of transfer … and the actual applicant can receive benefits.3 A amount the individual received.”7 Upon termination of the Agree- contract for future care (such as Fair market value is “an esti- ment, the plaintiff moved into the agreement between the plain- mate of the value of a resource a nursing home and applied for tiff and her son) is “a disqualify- if sold at the prevailing price.” 8 MassHealth benefits. MassHealth ing transfer of assets to the ex- though denied her application on

Volume 7, Issue 3 spring 2012 37 Health Law Brief: Gauthier v. Director of the Office of Medicaid, 80 Mass. App. Ct. 777 (2011) by Matthew S. Beuhler

the ground that the Agreement it. The son further controlled how vide an exception for transfers was a disqualifying transfer. The long the plaintiff could live there where the applicant intended to plaintiff appealed the denial of as he could cancel the Agreement receive valuable consideration.16 MassHealth benefits with the Of- without having to make a refund. The Appeals Court noted that it fice of Medicaid Board of Hear- These factors provided sub- was possible that the son intend- ings. After a hearing, the agency stantial evidence to support the ed to give the plaintiff fair consid- Hearing Officer upheld the denial Hearing Officer’s finding that the eration, even if he believed that of benefits. Agreement did not, at the time of she would ultimately have to re- its execution, have an ascertain- ceive nursing home care. In fact, In particular, the Hearing Officer able fair market and hence was a the son did build a living area for found that the plaintiff’s payment disqualifying transfer.12 the plaintiff and cared for her un- of $182,000 to her son was a dis- der the Agreement for nearly two qualifying transfer as the Agree- The Appeals Court next reviewed years. The Appeals Court stated ment had no fair-market value. the Hearing Officer’s finding that that these facts could support a The Hearing Officer further found the plaintiff entered into the finding that the plaintiff did in- the payment was made at least Agreement at least in part in or- tend to receive fair consideration, in part to qualify for MassHealth. der to qualify for MassHealth. although the Hearing Officer did As a result, the plaintiff was in- MassHealth provides an excep- not make any separate findings eligible for nursing home benefits tion for transfers made solely for on this issue. The Appeals Court for 682 days ($182,000 divided another purpose than qualifying thus remanded the case for fur- 13 by a $267 average daily cost of for benefits. To qualify for this ther findings.17 a private nursing home in Massa- exception, an applicant must chusetts). provide more than verbal assur- In addition, the Appeals Court ances as to his or her intent. An addressed the calculation of In reviewing the Hearing Officer’s applicant must instead prove his the plaintiff’s ineligibility period. decision, the Appeals Court first or her intent through convincing The Hearing Officer based the upheld the finding that the Agree- evidence.14 The Appeals Court ineligibility period on the entire ment was a disqualifying trans- found that substantial evidence $182,000 transfer by the plain- fer.9 Fair-market value is deter- supported the finding that the tiff. This period is supposed to be mined by reviewing the value of plaintiff did not meet this burden. based on uncompensated value, what the applicant received at the time of transfer.10 At the time The plaintiff was already in fail- i.e., the difference between what of its execution, however, the ing health when she executed the the plaintiff paid under the Agree- 18 Agreement was ambiguous as to Agreement. The Agreement thus ment and what it was worth. how long the son would care for contemplated a possible future The plaintiff paid $182,000 un- the plaintiff and what care she where the plaintiff would need der the Agreement, although, as would receive. The Agreement more care than the son and his discussed above, it is difficult to did not have a set duration and wife could provide. At that time, determine the fair market value lacked benchmarks for care pro- the plaintiff would have no al- for what the plaintiff received. vided. The Agreement instead ternative but to go to a nursing The Hearing Officer appears to only required the son to care for home, and would have to apply for have treated the Agreement as the plaintiff as much he could for MassHealth. This supported the worthless based on its lack of val- as long as he could.11 conclusion that one purpose of ue when executed. The Hearing the Agreement was to enable the Officer also noted, though, that Moreover, the plaintiff was al- plaintiff to qualify for MassHealth the plaintiff received 22 months ready in failing health in March if and when her son could no lon- of care under the Agreement - 2006 due to Alzheimer’s and ger care for her.15 and that the average monthly needed one-on-one supervision. cost of nursing home care was As a result, the son literally could The Appeals Court found, how- $8,010. The plaintiff thus likely have terminated the Agreement ever, that these facts were in- would have paid nearly $182,000 at any time. The son did provide sufficient to end the inquiry into if she spent those 22 months in a a newly built living area to the the intent of the Agreement. nursing home instead. plaintiff but he retained title to MassHealth regulations also pro-

38 Spring 2012 Volume 7, Issue 3 Health Law Brief: Gauthier v. Director of the Office of Medicaid, 80 Mass. App. Ct. 777 (2011) by Matthew S. Beuhler

The Appeals Court noted that MassHealth regulations are un- clear whether uncompensated value is measured at the time of execution or by the services subsequently provided under a contract. The Court indicated that it preferred calculating the value of the contract based on the value of services actually provided but it declined to make a definitive ruling without more guidance from the agency. Instead, the case was remanded for further findings as to the intent and uncompensated value of the Agree- ment.19 Until then, the value of future care contracts will remain uncertain.

(Endnotes) 1 130 C.M.R. § 519.006. 2 130 C.M.R. §§ 520.018 & 520.019. 3 130 C.M.R. § 520.019. 4 130 C.M.R. § 520.007(J)(4). 5 130 C.M.R. § 520.019(F). 6 130 C.M.R. § 520.019(G)(1). 7 130 C.M.R. § 515.001. 8 130 C.M.R. § 515.001. 9 The plaintiff initially sought judicial review under G.L. c. 30A, § 14(7) of MassHealth’s decision. The Superior Court (Donovan, J.) upheld the denial of benefits and the plaintiff appealed this decision to the state Appeals Court. 10 Forman v. Director of Office of Medicaid, 79 Mass. App. Ct. 218, 224-25. 11 Gauthier, 80 Mass. App. Ct. at 784-85. 12 Gauthier, 80 Mass. App. Ct. at 784-85. 13 130 C.M.R. § 520.019(F)(1). 14 Gauthier, 80 Mass. App. Ct. at 785 (citing State Medicaid Manual). 15 Gauthier, 80 Mass. App. Ct. at 785-86. 16 130 C.M.R. § 520.019(F)(2). 17 Gauthier, 80 Mass. App. Ct. at 786-87. 18 130 C.M.R. § 520.019(G)(1). 19 Gauthier, 80 Mass. App. Ct. at 787-90.

Volume 7, Issue 3 spring 2012 39 Health Law Brief: Guardianship of Mary Moe, 81 Mass. App. Ct. 136 (2012)

by Margaretta Homsey Kroeger

In January 2012, the Massachu- that Moe’s parents be appointed termine not “what is necessarily setts Appeals Court reviewed an as her guardians for the purpose the best decision but rather what order of the Probate and Family of consenting to an abortion. A decision would be made by the Court appointing the parents of hearing on the petition was held incompetent person if he or she a mentally ill pregnant woman before a judge of the Probate and were competent.”8 as her guardians for the purpose Family Court in December 2011. of consenting to an abortion and At the hearing, Moe stated that The GAL submitted a report to a sterilization procedure. The she would not have an abortion. concluding that Moe would not Appeals Court determined that She also made several inaccurate choose to have an abortion if the order violated the woman’s assertions, including that she was she were competent. The record right to due process and did not not pregnant, that she had met revealed that Moe became “agi- comply with the requirements of the judge before, and that she tated and emotional” discussing the state’s substituted judgment had previously given birth to a her first pregnancy that ended in statute.1 Accordingly, the Appeals girl named Nancy, when she had an abortion.9 Moe had also stated Court reversed in part, vacated in in fact given birth to a boy. Based that she was “very Catholic” and part, and remanded the matter on these “substantial delusional would never have an abortion.10 for further proceedings. beliefs,” the judge found that However, her parents stated that Moe was incompetent to decide Moe was not an “active” Catholic At the time of the appeal, Mary whether to have an abortion.3 and they believed it was in her Moe2 was a 32-year-old pregnant best interest to have an abor- woman diagnosed with schizo- The judge appointed a guardian ad tion.11 phrenia and/or schizoaffective litem (“GAL”) to investigate wheth- disorder and bipolar disorder. She er, under a substituted judgment After considering the facts con- had suffered a psychotic break analysis,4 Moe would consent tained in the GAL report, the judge when she was in college and to an abortion if she were com- reached the opposite conclusion had been hospitalized numerous petent. In Massachusetts, court than the GAL. Without holding a times due to her mental illness. authorization is required before hearing, the judge found that Moe Moe had also been pregnant on a guardian may consent to cer- would choose to have an abortion two previous occasions. The first tain extraordinary medical proce- if she were competent and or- time she became pregnant she dures on behalf of a person who dered that Moe’s parents be ap- had an abortion, and the second has been found incompetent.5 In pointed as guardians to consent time she gave birth to a son who determining whether to authorize to the abortion. The judge further was placed in the custody of her a procedure, the court will apply ordered, sua sponte, that Moe be parents. Moe’s psychotic break the doctrine of substituted judg- sterilized by the medical facility occurred at some point after she ment, whereby it “substitutes it- that performed the abortion pro- had the abortion and before the self as nearly as possible for the cedure. Moe then appealed the birth of her son. individual in the decision making order. process.”6 In doing so, the court In October 2011, Moe had visited “seeks to maintain the integrity of In reviewing the order, the Appeals a hospital emergency room where the incompetent person” by pro- Court first observed that the deci- it was determined that she was viding an opportunity to exercise sion to bear or beget a child is a two or three months pregnant. his or her fundamental right to de- fundamental right of all people, The Department of Mental Health cide whether to consent to such including those who are incom- then filed a petition requesting a procedure.7 The court must de- petent. As a result, the court will

40 Spring 2012 Volume 7, Issue 3 Health Law Brief: Guardianship of Mary Moe, 81 Mass. App. Ct. 136 (2012) by Margaretta Homsey Kroeger

apply the doctrine of substitut- law. The court stated that, after 13 Id. at 140 (citing U.S. Const. amend. ed judgment when determining Moe was found incompetent, the XIV, § 1). 14 Id. whether a guardian can consent judge was legally required to hold 15 Id. (quoting Matter of Moe, 385 Mass. at to an abortion or sterilization on an evidentiary hearing to deter- 567-68). behalf of an incompetent person. mine whether she would have 16 Id. at 141 (quoting G.L. c. 190B, § 5- an abortion if she were compe- 306A(d)). 17 Id. Turning to the portion of the order tent, unless the judge found “ex- 18 Id. requiring sterilization, the court traordinary circumstances” that 19 Id. at 141-42. stated that, “[b]ecause steriliza- required her to be absent from tion is the deprivation of the right the hearing.16 Alternatively, the to procreate, it is axiomatic that judge could have based the sub- an incompetent person must be stituted judgment determination given adequate notice of the pro- exclusively on affidavits and doc- ceedings,” along with an opportu- umentary evidence if the judge nity to be heard on the issue of had made “an additional finding, the ability to give informed con- based on representation of coun- sent and, if unable to consent, a sel,” that there were no contested substituted judgment determina- issues of fact.17 Because the judge tion.12 The court noted that none did not hold a hearing or make of these procedural requirements the required additional findings, were met when the judge ordered the court vacated the portion of Moe’s sterilization sua sponte the order requiring the abortion, and without notice. It held that and remanded the case for “a the required level of due process proper evidentiary inquiry and de- had not been provided, and it re- cision on the issue of substituted versed that part of the order.13 judgment.”18 Finally, the court vacated the portion of the order The Appeals Court then consid- appointing Moe’s parents as her ered the portion of the order re- guardians to the extent that it quiring an abortion. It first deter- was conditioned on the need for mined that the judge’s decision them to consent to the abortion, that Moe was incompetent to de- and the court directed that the cide whether to have an abortion order be modified to appoint her was supported by evidence in the parents as guardians for general record, namely that Moe denied purposes related to routine medi- that she was pregnant.14 Howev- cal care.19 er, the court noted that the other evidence on which the judge re- (Endnotes) lied, that Moe believed that she 1 Guardianship of Mary Moe, 81 Mass. App. had met the judge before and Ct. 136, 139-42 (2012). had given birth to a girl, did not 2 “Mary Moe” is a pseudonym used to maintain the confidentiality of the lower support a determination that she court proceedings. See G.L. c. 112 § 12S. was incompetent with respect to 3 Guardianship of Moe, 81 Mass. App. Ct. the abortion issue, given that “[a] at 137. person may be adjudicated le- 4 See G.L. c. 190B, § 5-306A. 5 See id.; see also Matter of Moe, 385 Mass. gally incompetent to make some 555, 559 (1982). decisions but competent to make 6 Matter of Moe, 385 Mass. at 565. other decisions.”15 7 Id. 8 Id. 9 Guardianship of Moe, 81 Mass. App. Ct. The court next determined that at 138. the order requiring Moe to have 10 Id. an abortion did not comply with 11 Id. the state’s substituted judgment 12 Id. at 139.

Volume 7, Issue 3 spring 2012 41 Health Law Brief: U.S. ex. rel. Christopher Drennen v. Fresenius Medical Care Holdings, Inc.

by Meghan M. Cosgrove

On March 6th, the District Court in federal government under its “qui formed, and the cost billed. In addi- Massachusetts denied a motion tam” provisions.1 It is well-settled tion, Drennen provided the initials by Fresenius Medical Care Hold- case law that qui tam fraud actions of six (6) patients who received six- ings, Inc. d/b/a Fresenius Medical brought under the False Claims ty-four (64) unnecessary hepatitis Care North America (“Fresenius”) Act are subject to the heightened B or ferritin tests. The Court found to dismiss a qui tam complaint un- pleading requirements of Rule the information provided by Dren- der the False Claims Act, 31 U.S.C. 9(b).2 This rule requires that a nen sufficient to meet the Rule 9(b) §3730, filed by former employee plaintiff plead claims of fraud with pleading requirements. Christopher Drennen (“Drennen”). sufficient particularity such as “the In reaching its decision, the Court dates of the claims, the content Beyond the heightened pleading not only found that Drennen’s al- of the forms or bills submitted, requirement of Rule 9(b), qui tam legations of fraud were specific their identification numbers, the actions under the False Claims enough to meet the pleading re- amount of money charged to the Act are also subject to a dismissal quirements under Rule 9(b) of the government, the particular goods if the activity alleged has already Federal Rules of Civil Procedure or services for which the govern- been publicly disclosed (the “pub- (“Rule 9(b)”), but also held that the ment was billed, the individuals in- lic disclosure bar”).5 A relator can public disclosure bar did not pre- volved in the billing, and the length still overcome the public disclosure clude Drennen from filing his ac- of time between the alleged fraud- bar, however, if the relator is con- tion as the Court found him to be ulent practices and the submission sidered an “original source” of the an “original source” of the informa- of claims based on those practices information.6 To be considered an tion alleged. . . .”3 While the “time, place, and original source, the relator either content” factors are not used as must have voluntarily disclosed the Drennen, a former area manager a checklist, a relator must plead information on which the claims of Fresenius, the nation’s largest specific information with respect are based to the government prior dialysis provider, alleged that the to the claims for payment that are to public disclosure, or have direct company billed Medicare over a ten submitted to the government in or- and independent knowledge of the (10) year period for certain hepati- der to meet the Rule 9(b) pleading publicly disclosed claims and vol- tis B and ferritin tests that were not requirements.4 untarily provide this information medically necessary. Specifically, to the government prior to filing an he claimed that Fresenius billed In this case, Fresenius argued that action.7 With respect to the latter hepatitis B tests more frequently the information provided by Dren- category, a relator’s knowledge is than Medicare’s National Coverage nen did not meet the specificity considered direct and independent Decision allowed and without the requirement of Rule 9(b) because if it has been acquired through the required supporting documenta- he did not identify the names of relator’s own efforts and is not tion, including the physician orders. the Fresenius employees who sub- dependent upon the public disclo- Drennen made similar claims re- mitted the claims for the tests, the sure.8 If the information in the rela- garding Fresenius’ billing for ferritin physicians who ordered the tests, tor’s possession is not considered tests although provided less detail or the details about when the tests direct and independent, the rela- with respect to these tests. were billed to Medicare. In reject- tor is not considered an “original ing Fresenius’ argument, the Court source” and the public disclosure The False Claims Act (“FCA”) pro- noted that Drennen identified the bar prevents the relator’s action hibits the submission of false or location where the unnecessary from going forward. fraudulent claims to the federal tests were performed, the type of government and allows private in- test performed, the time period The Court found that all of the ele- dividuals to sue on behalf of the during which the tests were per- ments of the public disclosure bar

42 Spring 2012 Volume 7, Issue 3 Health Law Brief: U.S. ex. rel. Christopher Drennen v. Fresenius Medical Care Holdings, Inc. by Meghan M. Cosgrove

were met but that Drennen was an for allegations of FCA violations on “original source” of the informa- a nationwide level. tion he alleged in his complaint. In reaching its decision, the Court (Endnotes) rejected Fresenius’ argumentthat 1 31 U.S.C. §3729 et seq.; These private indi- Drennen needed to have direct viduals are often referred to as “whistleblow- and independent knowledge of the ers” or “relators.” billing practices of every Fresenius 2 U.S. ex rel. Karvelas v. Melrose-Wakefield clinic, the medical history of all pa- Hosp., 360 F.3d 220, 227 (1st Cir. 2004). tients, and every hepatitis B and 3 Id at 233. 4 Id at 226. ferritin test given from 2001 to the 5 31 U.S.C. §3730(e)(4)(A); The First present. Even though Drennen’s Circuit has applied the following analysis personal knowledge of Fresenius’ in determining whether the public disclo- alleged false and improper billings sure serves as a bar: (1) whether there has been public disclosure of the allegations or was limited to just the ten dialysis transactions in the relator’s complaint; (2) if clinics that Drennen supervised, so, whether the public disclosure occurred the Court found the information in the manner specified in the statute; (3) that Drennen provided with respect if so, whether the relator’s suit is “based upon” those publicly disclosed allegations or to these ten clinics in addition to transactions; and (4) if the answers to these his knowledge of Fresenius’ nation- questions are in the affirmative, whether wide computer system and Medi- the relator falls within the “original source” care billing system was sufficient exception as defined in 31 U.S.C. §3730(e) to establish Drennen’s direct and (4)(B). U.S. ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 728 (1st Cir. 2007). independent knowledge for all of the alleged medically unnecessary It is important to note that the Patient tests done on a nationwide level, Protection and Affordable Care Act, Pub. including those occurring in clinics L 111-148 (March 23, 2010) (“PPACA”) that Drennen did not supervise. significantly narrowed the use of the public disclosure bar as a defense in FCA cases. First, the bar is no longer jurisdictional in This case serves as a reminder to nature, rather it provides that a court “shall practitioners that the time, place, dismiss an action or claim under this section, and content factors used to es- unless opposed by the Government . . . “ In tablish specificity under Rule 9(b) addition, the categories of public disclosures are not a rigid checklist. A relator have been significantly narrowed post- may still meet the pleading require- PPACA as reflected in the italicized terms below. Information is considered “publicly ments of Rule 9(b) as long as the disclosed” and thus a qui tam action is information alleged is sufficiently barred if the allegations or transactions are specific with respect to the sub- contained in (i) a federal criminal, civil, mission of fraudulent claims to the or administrative hearing in which the government. In addition, this case government or its agentis a party; (ii) a suggests that a relator’s personal congressional, Government Accountability Office, or other federal report, hearing, audit, knowledge of a limited number of or investigation; or (iii) in the news media. improper billings can be extrapolat- 6 31 U.S.C. §3730(e)(4)(B). ed in certain circumstances such 7 31 U.S.C. §3730(e)(4)(B); PPACA also that the relator can be considered amended the definition of “original source” to remove the requirement that a relator have the “original source” for allegations “direct” knowledge of the allegations or of a nationwide practice of improp- transactions and instead allows a relator who er billing, even thought the relator simply has knowledge, whether direct or in- does not have personal knowledge direct, that “is independent of and materially of every possible alleged viola- adds to the publicly disclosed allegations or transactions” to be considered an “original tion. In short, it demonstrates that source.” whistleblowers can come from any 8 U.S. ex rel. O’Keefee v. Sverdup Corp., 131 level within an organization and F. Supp. 2d 87, 93 (D. Mass. 2001); U.S. ex need only limited knowledge of a rel. Ondis v. City of Woonsocket, 587 F.3d st company’s business practices to 49, 59 (1 Cir. 2009). be considered an “original source”

Volume 7, Issue 3 spring 2012 43

Editors

Julia R. Hesse, Esq. David Sontag, Esq.

Julia R. Hesse is a partner in the Healthcare Group David Sontag is Associate General Counsel at of Choate, Hall & Stewart LLP and formerly prac- Beth Israel Deaconess Medical Center, and for- ticed as Associate General Counsel at Tufts Medi- merly practiced as an associate at Choate, Hall & cal Center, Inc. and as an associate in the Health Stewart LLP. His current practice focuses on ne- Care practice group of Ropes & Gray LLP. Julia’s gotiating and drafting contracts, and advising and practice focuses on the full range of health care- resolving legal and compliance issues related to related regulatory issues and other business and mergers and acquisitions and other business re- transactional matters important to hospitals, aca- lationships with the medical center. David also demic medical centers and affiliated faculty and advises medical center clinicians regarding guard- community physicians, including the implementa- ianships, health care proxies and related informed tion of quality-related programs and systems, ne- consent issues, and oversees the process for ob- gotiating and implementing managed care agree- taining guardianships for medical center patients. ments that tie reimbursement to the achievement He is a graduate of Washington University and the of quality goals, and advising health care insti- University of Pennsylvania, where he received de- tutions and faculty practice plans on the devel- grees in both law and bioethics. opment and implementation of compensation systems that reward the achievement of quality- related goals. She is a graduate of Williams Col- lege and the University of Pennsylvania, where she received degrees in both law and bioethics.

44 Spring 2012 Volume 7, Issue 3

Contributors To This Issue

Matthew S. Buehler, Esq. Michael T. Caljouw, Esq. Meghan M. Cosgrove, Esq. Matthew S. Buehler is a contract Michael T. Caljouw is Vice Presi- Meghan M. Cosgrove is an associate Staff Attorney at DentaQuest, LLC. dent of Public Government and in the Health Care Department at Mr. Buehler’s practice focusses on Regulatory Affairs for Blue Cross Donoghue Barrett & Singal, P.C.. Pri- regulatory compliance and filings Blue Shield of Massachusetts. or to joining the firm, Ms. Cosgrove and representing the company in Mr. Caljouw directs the leading served at the Centers for Medicare administrative proceedings. Mr. Massachusetts-based health and Medicaid Services (CMS) in Buehler graduated from Suffolk Uni- plan’s activities in a wide range Boston and in Baltimore, Maryland versity Law School in 1995. Prior of policy, legislative and regu- as a Health Insurance Specialist in to joining DentaQuest, Mr. Buehler latory issues including major the Division of Medicare Financial worked primarily in the public sector, health care reform matters in Management and the Division of including the Office of Medicaid and Massachusetts. Prior to join- Technical Payment Policy, respec- the Office of the Attorney General, ing Blue Cross, he was Senior tively. During her tenure at CMS, Insurance Division. While at the Of- Counsel at a national law firm, she worked on the Stark Law Phase fice of Medicaid, Mr. Buehler brought Holland & Knight, within their III regulations, the Specialty Hospital enforcement actions under the ‘pay- Boston office. In this capac- Report to Congress, the EMTALA er-of-last-resort’ of the state and fed- ity, Mr. Caljouw represented Technical Advisory Group Report, eral Medicaid acts and represented national and local clients in the the Compliance Effectiveness Pilot the MassHealth program in court administrative law, regulatory project, as well as Medicare reim- proceeding. Mr. Buehler further de- compliance, licensing and insur- bursement and coverage issues. fended administrative appeals of ance law fields. Prior to law school, Ms. Cosgrove MassHealth audits. While at the At- was the Director of Project Develop- torney General’s Insurance Division, ment at the Federated Ambulatory Mr. Buehler brought enforcement ac- Surgery Association in Alexandria, tions under the consumer protection, VA. Ms. Cosgrove received a Juris healthcare and insurance statutes. Doctorate with a concentration in In addition, Mr. Buehler has worked Health and Biomedical Law with as an attorney for the Attorney Gen- Distinction from Suffolk University eral’s Civil Rights Division and the Law School, where she was one of Massachusetts Commission Against the Founding Editors of the Suffolk Discrimination. Journal of Health & Biomedical Law. She received her undergraduate degree in English from the College of the Holy Cross, and is licensed to practice law in the Commonwealth of Massachusetts.

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Suzanne M. Fuchs, Esq. Sarah G. Gordon, Esq. Margaretta Homsey- Suzanne M. Fuchs is an associate Sarah G. Gordon is Vice President Kroeger, Esq. with Pierce & Mandell, P.C. focusing of Legal Affairs for the Massachu- Margaretta Homsey Kroeger is a her practice on a variety of matters, setts Association of Health Plans. Skadden Fellow at Greater Bos- with a concentration in the areas Ms. Gordon joined MAHP in 2006, ton Legal Services in the Elder, of civil litigation, personal injury, shortly following passage of Mas- Health and Disability Unit, where insurance defense, and health care sachusetts Health Care Reform, she focuses on advocating for related legal proceedings, including Chapter 58 of the Acts of 2006. youth with physical and mental civil commitments and guardian- Sarah brought with her two years disabilities who are aging out ships. Suzanne is a graduate of of litigation experience in criminal, of the foster care system. She Cornell University (B.A. 2006) and financial, and insurance litigation. provides outreach, community Northeastern University School Since joining MAHP, Ms. Gordon was education, and direct legal rep- of Law. Prior to joining Pierce & extensively involved in implementa- resentation to youth who need Mandell, Suzanne interned as a law tion of Massachusetts Health Care assistance accessing disabil- clerk for the Honorable Judge Frank Reform, working with issues related ity benefits, health care, and Gaziano of the Massachusetts Su- to commercial, Medicaid and Con- related services. Prior to her perior Court. Suzanne also worked nector programs. Ms. Gordon is fellowship, Ms. Kroeger clerked for a state agency that provided responsible for coordinating MAHP’s for Justice William P. Robinson direct legal representation to indi- public policy agenda, including all III of the Rhode Island Supreme viduals with mental disabilities in issues related to Medicaid and Court. She received her law de- a variety of legal matters. She was MassHealth and MAHP’s payment gree from Boston College Law also employed as outside counsel reform and cost control policies. School, where she was a Public for a large insurance company. Su- Ms. Gordon is MAHP’s representa- Service Scholar and served as zanne is admitted to practice in the tive to the Advisory Committee to an articles editor of the Boston states of Massachusetts and Rhode the Health Care Quality and Cost College Law Review and as vice Island, as well as in the Federal Council, where she has served as president of the Public Interest District Court for the District of Mas- both Vice Chair and Chair for the Law Foundation. She received sachusetts. Committee. Ms. Gordon also serves her undergraduate degree from as MAHP’s general counsel and Harvard University with a con- advises MAHP on compliance with centration in History. state Ethics laws and regulations. Ms. Gordon currently serves on the MWPC PAC Board, and also serves as the co-chair for the MassGap Health and Human Services and Elder Affairs Task Force. Ms. Gordon received a BA, Honors, in Environ- mental Policy from the University of Kansas and holds a JD from Vermont Law School.

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William A. Mandell, Esq. Wendy E. Parmet, Esq. Phillip Rakhunov, Esq. William A. Mandell is a partner Wendy E. Parmet is George J. and Phillip Rakhunov is a business in the Boston law firm of Pierce Kathleen Waters Matthews Dis- litigator who represents health & Mandell, P.C. He has over 25 tinguished Professor of Law at care organizations, financial years of experience representing Northeastern University School institutions, investment profes- health care providers, medical of Law and Associate Dean for sionals, fiduciaries and vari- societies, biotech companies, Academic Affairs. A member of ous other business entities in and research and educational the Board of Directors of Health a broad array of business dis- companies, on all aspects of Law Advocates, in 2010 and putes, including securities fraud health and business law. He is 2011 she served as lead counsel litigation, enforcement of restric- also the author of several works along with Health Law Advocates tive covenants, and high stakes on legal compliance, including, in Finch v. Commonwealth Health contract litigation. Mr. Rakhunov Managing Relationships with In- Insurance Connector Authority, regularly appears in state and dustry A Physician’s Compliance in which the Massachusetts Su- federal courts, Manual; the Massachusetts preme Judicial Court found that as well as before arbitration Health and Hospital Law Manual a state law denying state subsi- and mediation tribunals. Fluent and Making Sense of the Stark dized health insurance to a class in Russian, Mr. Rakhunov also Law: Compliance for the Medical of legal immigrants violated the represents Russian-speaking cli- Practice. He is a member of the state constitution. She was also ents and other clients in need of American Health Lawyers Associ- co-counsel in Abbot v. Bragdon, his unique background and lan- ation, the American Bar Associa- in which the Supreme Court held guage. Mr. Rakhunov received tion and the Boston Bar Associa- that HIV was disability under the his law degree from Northeast- tion Health Law Section Steering Americans with Disabilities Act. ern University School of Law and Committee. She is the author of the Popu- his undergraduate degree from lations, Public Health, and the Tufts University (B.S.E.). Mr. Ra- Law, published by Georgetown khunov is admitted to the state University Press in 2009 and and federal bars of Massachu- with Professor Patricia Illing- setts and New Hampshire. worth, Ethical Health Care, published by Prentice Hall in 2005, as well as numerous articles in medical journals and law reviews on public health law, health law, and disability law. Prof. Parmet is also on the Board of Directors of Health Care for All, is special counsel to the ABA’s AIDS Coor- dinating Committee and is a fellow of the American Bar Founda- tion. She received her J.D. from Harvard Law School in 1982 and her B.A. from Cornell University in 1979.

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Lorainne M. Sainsbury- Valerie Moore Leda Tabaie Wong, Esq. Valerie Moore is a 2012 gradu- Leda Tabaie is a graduate of Lorianne M. Sainsbury-Wong is ate of Boston University School Northeastern University School the Litigation Director at Health of Law. During law school, Ms. of Law, class of 2012. Through- Law Advocates (HLA) where she Moore worked at the law firm of out her law school career, Leda serves as lead in-house coun- FerriterScobbo&Rodophele, PC, has interned with the Honorable sel and consulting counsel on Tufts Medical Center, and the Judge William G. Young of the complex and novel litigation, Access to Justice Initiative of the United States District Court for including class actions and Massachusetts Trial Court, in the District of Massachusetts, appeals related to health care addition to performing research the Reproductive Freedom Proj- access. She is former Senior on several public health law ect at the American Civil Liber- Staff Attorney at the law firm, issues for Professor Wendy Mari- ties Union, and Oxfam America. a position which she held for ner. Ms. Moore also served as a With this strong background in four years. Her work concen- Writing Fellow during her second public interest, Leda aspires to trates on health care reform and year of law school. She received advocate for reproductive justice consumer medical debt. She her undergraduate degree in in Boston. also serves as HLA counsel to political science and econom- representatives and members of ics summa cum laude from the approximately 40,000 lawfully University of Massachusetts at residing immigrants in the Com- Amherst in 2009. monwealth in two cases before the Massachusetts Supreme Judicial Court, entitled Finch v. Commonwealth Health Insur- ance Connector Authority. She is a graduate of Assumption College and New England Law | Boston. Her publications include “Protecting Consumers: The Elimination of Lifetime an Annual Limits on Health Insur- ance Benefits” (Massachusetts Lawyers Journal) and “The use- ful but overlooked Massachu- setts Equal Rights Amendment” (Massachusetts Lawyers Jour- nal). She has also presented on many topics, including “The Growing Problem of Consumer Medical Debt,” sponsored by the Boston Bar Association. She is proficient in Spanish and admitted to practice in Massachu- setts and New Hampshire state courts, the U.S. District Court for the District of Massachusetts, and the Supreme Court of the United States.

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Frederick Thide Peer Review Frederick Thide is a law student Coordinator: at Boston College Law School, where he serves as managing Michele Gerroir editor of the Boston College Law Review. Mr. Thide recently par- Peer Reviewers: ticipated in a class at BU Law, where he worked with a team of Brian Hachey students and professors to pre- Colleen Murphy Marticio pare an amicus brief defending Tad Heuer the Affordable Care Act’s historic expansion of Medicaid. He Claire Laporte served as an intern for the Hon- Kristina Kerwin orable William G. Young of the Chris Lim U.S. District Court for the District of Massachusetts and as a sum- Tovah Poster mer law intern with the FTC’s Bu- Sarah Walsh reau of Competition.

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Section Leadership 2011-2012

Section Co-Chairs Susan Brown Garrett Gillespie Tufts Medical Center CVS Corp Colin Zick Associate General Counsel One CVS Drive Foley Hoag LLP 800 Washington Street, Box 55 Woonsocket, RI 02895 Seaport World Trade Center West Boston, MA 02111 (401) 524-3918 155 Seaport Boulevard (617) 636-5398 [email protected] Boston, MA 02210 [email protected] (617) 832-1275 Donna Levin Massachusetts Department of [email protected] Communications Committee Public Health Leslie Joseph 250 Washington Street, 2nd Floor Julia Hesse Mount Auburn Hospital Boston, MA 02108 Choate Hall & Stewart LLP 330 Mount Auburn Street (617) 624-5220 Two International Place Cambridge, MA 02138 [email protected] Boston, MA 02110 (617) 499-5752 (617) 248-5006 [email protected] Lawrence Vernaglia [email protected] Foley & Lardner LLP 111 Huntington Ave. Education Committee David Sontag Boston, MA 02199 Beth Israel Deaconess Medical Center (617) 342-4079 David Abelman 330 Brookline Avenue [email protected] Tufts Health Plan-Watertown Boston MA 02215 705 Mount Auburn Street (617) 667-1875 Watertown, MA 02472 [email protected] Membership Committee (617) 923-5838 William Mandell [email protected] Legislative Committee Pierce & Mandell, P.C. Charles Buck III. 11 Beacon Street, Suite 800 Kimberly Haddad McDermott Will & Emery Boston, MA 02108 Office of Senator Richard Moore 28 State Street (617) 720-2444 State House, Room 111 Boston, MA 02109 [email protected] Boston, MA 02133 (617) 535-4151 (617) 216-1917 [email protected] Diane McCarthy [email protected] Children’s Hospital Boston Joel Goloskie 300 Longwood Avenue Karbert Ng 825 Chalkstone Ave Boston, MA 02115 Joint Committee on Health Care Financing Providence, RI 02908 (617) 355-4935 State House, Room 236 (401) 824-5157 [email protected] Boston, MA 02133 [email protected] vard.edu (617) 722-2430 [email protected] Thomas Barker M. Daria Niewenhous Foley Hoag LLP Mintz, Levin, Cohn, Ferris, Glovsky Barbara Anthony Seaport World Trade Center West and Popeo P.C. Massachusetts Office of Consumer 155 Seaport Boulevard One Financial Center Affairs and Business Regulation Boston, MA 02210 Boston, MA 02111 10 Park Plaza, Suite 5170 (617) 832-1111 (617) 348-4865 Boston, MA 02116 [email protected] [email protected] (617) 973-8700 [email protected]

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Sarah Anderson Members Greater Boston Legal Services 197 Friend Street Alan Einhorn Boston, MA 02114 Foley & Lardner LLP (617) 371-1234 111 Huntington Ave. [email protected] Boston, MA 02199 (617) 342-4040 Matthew Herndon [email protected] Boston Medical Center HealthNet Plan Eve Horwitz Two Copley Place, Suite 600 Archstone Law Group P.C. Boston, MA 02116 245 Winter Street, Suite 400 (617) 748-6383 Waltham, MA 02451 [email protected] (781) 314-0111 [email protected] Social Action Committee Robin Johnson Johnson & Aceto LLP Catherine Annas 67 Battery March St Harvard University - Health Sys- Suite 400 tems Improvement Boston, MA 02110 14 Story Street, 2nd Floor (617) 728-0888 Cambridge, MA 02138 [email protected] (617) 495-2966 [email protected] Stephanie Richardson Harvard Pilgrim Health Care Michael Beauvais Government Affairs & Programs Ropes & Gray LLP 93 Worcester Street Prudential Tower Wellesley, MA 02481 800 Boylston Street (617) 509-2108 Boston, MA 02199 [email protected] (617) 951-7601 [email protected] Christine Savage Choate Hall & Stewart LLP Michael Blau Two International Place Foley & Lardner LLP Boston, MA 02110 111 Huntington Ave. (617) 248-5000 Boston, MA 02199 [email protected] (617) 342-4040 [email protected] David Szabo Edwards Wildman Palmer LLP Samantha Morton 111 Huntington Avenue Medical Legal Partnership – Boston Boston, MA 02199 88 East Newton Street, Vose 5 (617) 239-0414 Boston, MA 02118 [email protected] (617) 414-6769 [email protected]

Volume 7, Issue 3 spring 2012 51 a publication of the boston bar association health law section

16 Beacon Street Boston, MA 02108 Phone (617) 742-0615 Fax (617) 523-0127 www.bostonbar.org

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