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Pierce & Mandell Lawyers and Staff Run “Lawyers Have Heart 5K” in Support of the American Heart Association

Wednesday, May 23, 2018

Pierce & Mandell Lawyers and Staff Run “Lawyers Have Heart 5K” in Support of the American Heart Association

Pierce & Mandell, P.C., Boston, MA

Lena Finnerty Wins Summary Judgment on Negligence Case

Monday, May 21, 2018

Lena Finnerty, Pierce & Mandell, P.C., Boston, MAPierce & Mandell attorney Lena Finnerty recently won summary judgment for the firm’s architect client in a case involving a slip and fall at a local federal government facility.

The firm represented an international architectural firm in a case involving a federal government employee who fell in the indoor “winter garden” of her employer’s large facility. Plaintiff alleged that she fell on pea stones that had migrated from the garden area onto the walking paths. The allegation against the firm’s client was that it was negligent in designing the winter garden by including pea stones as a feature.

The basis for the summary judgment motion was that plaintiff did not offer an expert witness to testify that designing the winter garden using pea stones violated the standard of care.

Founding partner Bob Pierce was lead counsel on the case for the architect, but Lena Finnerty wrote and argued the summary judgment motion. “I am so proud of Lena having developed this basis for a summary judgment motion and winning this dismissal for the client. This was tremendous work by Lena on behalf of the client and Pierce & Mandell.”

Pierce & Mandell is well known for defending every type of product liability, personal injury and construction defect case.

Bill Mandell was Quoted in the May 2018 ED Legal Letter Article

Monday, May 21, 2018

Pierce & William MandellBill Mandell was quoted in the May 2018 ED Legal Letter article on case law expanding ED’s legal exposure if discharged psychiatric patient commits violence.

A Cautionary Tale for Municipal Officials: The SJC clarifies the Open Meeting Law’s “deliberation exemption”

Thursday, May 17, 2018

Pierce and Mandell, P.C.By: Michael C. Fee

      The Massachusetts Supreme Judicial Court’s recent ruling in Boelter v. Board of Selectmen of Wayland (SJC-12353, April 5, 2018) interprets and clarifies, for the first time, the meaning of the term “deliberation,” which was added to the Open Meeting Law in July 2010. The Open Meeting Law requires that, with the exception of executive sessions, “all meetings of a public body shall be open to the public.” General Laws c. 30A, § 20 (a). The statute defines a “meeting” as “a deliberation by a public body with respect to any matter within the body’s jurisdiction,” subject to certain limited exclusions. G.L. c. 30A, § 18.

      A “deliberation,” is “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction.” The Open Meeting Law provides, however, that the term “deliberation” does not encompass the “distribution of a meeting agenda, scheduling information or distribution of other . . . reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.” Id.

      While the importance of the Open Meeting Law cannot be understated, it is clear that the parameters it places on public officials are myriad and sometimes not entirely intuitive. Prior to the Legislature’s amendment of the statute in 2010, the Open Meeting Law defined “deliberation” as “a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction.” See G.L. c. 39, § 23A, as appearing in St. 1975, c. 303, § 3. The 2010 amendment broadened the law’s definition of “deliberation,” and affirmed that a “deliberation” could encompass “any medium,” not just verbal communication. At the same time, however, the Legislature made clear that public bodies could distribute materials internally in advance of public meetings without running afoul of the statute’s proscription on “deliberation.”

      In Boelter, the chair of the Wayland Select Board had circulated to all members, in advance of a public meeting where the town administrator’s evaluation was to take place, the members’ individual written evaluations of the town administrator’s performance, as well as a composite evaluation. At the meeting, the Board reviewed, discussed and approved the composite evaluation, and the meeting minutes memorialized that the Board “praised [the town administrator] for his availability and responsiveness to the public, his work ethic, his relationship with town staff, and his accessibility to board and committee members.” Both the composite and individual evaluations were only released to the public following the open meeting.

      The process followed by the Board was subsequently challenged, and plaintiffs argued that the public should have total access to the decision-making process whenever a town official is evaluated. See, e.g., School Comm. Of Wayland, 455 Mass. at 570 (“It is essential to a democratic form of government that the public have broad access to the decisions made by its elected officials and to the way in which the decisions are reached”). Upon review, the Boelter Court acknowledged that the exemption allowing distribution of some materials was likely in response to the practical realities of governmental service, and that by permitting officials to review certain administrative materials and reports in advance, the Legislature sought to enable the more efficient administration of public meetings. It also noted, however, that the overarching purpose of the Open Meeting Law is to ensure transparency in governmental decision-making, and the Legislature specifically outlawed the expression of opinions by board members in any documents circulated to a quorum prior to an open meeting. See Revere v. Massachusetts Gaming Comm’n, 476 Mass. 591, 610 (2017) (“the new version of the Open Meeting Law does not alter our belief that ‘[i]t is essential to a democratic form of government that the public have broad access to the decisions made by its elected officials and to the way in which the decisions are reached’” [citation omitted]).

      In parsing the Wayland Select Board’s actions, the Court took particular note that the materials privately distributed to the members contained “appraisals” of the Town manager’s performance. Although there was no conversation, there was nonetheless an exchange of “thoughts, impressions and conclusions” that was inconsistent with the Open Meeting Law’s requirement that all deliberations take place in public. The Court concluded that the effect of the circulation of the evaluations was that all five board members were aware of the opinions of the other four members in advance of the meeting. As a result, the circulation constituted a deliberation, or a meeting, to which the public did not have access.

      Noting that the Open Meeting Law was intended to ensure that the public is able to see for themselves how public decisions are made, See Revere, 476 Mass. at 610, the Court found that distribution of the individual and composite opinions to a quorum, prior to the meeting, violated the statute’s purpose. See G.L. c. 30A, § 18. Compare School Comm. Of Wayland, 455 Mass. at 570 (“Open meetings provide an opportunity for each member of the governmental body to debate the issues and disclose their personal viewpoints before the governmental body reaches its decision on a matter of public policy” (emphasis supplied); McCrea v. Flaherty, 71 Mass. App. Ct. 637, 641 (2008) (Open Meeting Law “provides for public access to the decision-making process when it is in a formative stage, several steps removed from the eventual result”).

      The ruling in Boelter is both an affirmation of the Open Meeting Law’s overarching goal, transparency in governmental decision-making, and a challenge to public officials striving for administrative efficiency. The decision makes clear to municipal officials that there are now only two types of materials which may be safely distributed to a quorum outside of a public meeting: first, purely procedural or administrative materials (such as agendas), and second, reports or documents to be discussed at a later meeting, so long as such materials do not express the opinion of a board member. Careful municipal officials should consider adopting a general practice of not communicating by email at all except for distributing meeting agendas, scheduling meetings and distributing documents created by non-members to be discussed at meetings, all of which are ministerial tasks specifically sanctioned under the Open Meeting Law.

      Pierce & Mandell partner Michael C. Fee practices in the firm’s real estate and litigation departments. He is a former Town Moderator, Planning Board and Water District Chairman in Sudbury, and a current member of the Truro Open Space Committee. He frequently advises individuals and municipalities regarding public official liability under 42 U.S.C. § 1983, the Open Meeting Law, and matters involving public records, zoning, permitting, and land use.

Guidance to Massachusetts Health Care Providers Regarding the Release of Protected Health Information

Friday, May 04, 2018

By Curt Dooling, Matt Lauring and Bill Mandell

Hospitals and health care facilities, medical and other group practices, and individual clinicians regularly receive requests for patient records and information. It is often confusing for providers to determine when and under what circumstances they are permitted to disclose such records. Discovering parties can use the legal process to compel a response but cannot necessarily override applicable state privacy, confidentiality and privilege laws, as well as privacy rights under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), with a subpoena alone. HIPAA establishes minimum standards for the protection of protected health information (“PHI”) that do not preempt more protective state privacy laws and privileges. The following provides a brief overview on the differences between a court order, a subpoena, and an authorization for Massachusetts providers.

Subpoenas

Mass. R. Civ. P. 45 allows parties in civil lawsuits to subpoena records from non-parties. These subpoenas are often called keeper of records, or KOR, subpoenas. They are also sometimes referred to as a subpoena duces tecum.

Parties receiving a subpoena must respond to the subpoena within a certain referenced time frame. However, as a general rule, medical records should not be automatically produced in response to a subpoena, without first confirming if there is sufficient authority to release the PHI under both Massachusetts law and HIPAA. Such authority could be (i) under statutory authority on the subpoena alone if certain conditions are met, or (ii) with an executed HIPAA compliant patient authorization, or (ii) upon the issuance of a proper court order.

Subpoenas are not court orders. Subpoenas are issued by attorneys to obtain documents. Attorneys do not need a court’s permission to issue a subpoena. Medical providers can mistake subpoenas for court orders given that subpoenas are often served by a sheriff or constable, are notarized and look like an official court document. Thus, while a timely response must be sent back by the provider to the discovering party, that response may have to be in the form of an objection letter seeking the additional needed authority to disclose the PHI.

Massachusetts licensed hospitals and clinics (but not unlicensed practices) may produce medical records in response to a subpoena alone pursuant to G. L. c 111, § 70, but only if the patient is a named party in the case.

Similarly, under HIPAA’s privacy rule, 45 CFR 164.512(e)(1)(ii), a covered entity that is not a party to the litigation may disclose protected health information in response to a subpoena, discovery request, or other lawful process if the covered entity receives certain satisfactory assurances from the party seeking the information. Specifically, the covered entity must receive a written statement and accompanying documentation that the requesting party has made reasonable efforts either (1) to ensure that the individual who is the subject of the information has been given sufficient notice of the request, or (2) to secure a qualified protective order.

Thus, when viewing G. L. 111, § 70 in combination with 45 CFR 164.512(e)(1)(ii), a hospital or clinic may release confidential medical records in response to a subpoena alone if the patient is named in the caption and the provider receives assurance that the patient has been given notice that the records have been requested and has not objected. However, G. L. 111, § 70 only applies to hospitals or clinics licensed by the Massachusetts Department of Public Health. Therefore, medical practices and other groups may not release PHI in response to a subpoena without first securing a HIPAA compliant authorization from the patient, or a proper judicial order.

Additionally Protected Information

HIPAA provides a minimum level of protection for the disclosure and protection of an individual’s PHI. However, HIPAA expressly permits states to enact laws and regulations that provide more safeguards for the protection of patient information and records

Massachusetts has several statutes that provide additional protections for certain health information. For example:

  • General Laws c. 112, § 135B provides for the confidentiality of patient/social worker communications. Pursuant to G. L. c. 112, § 135B, social worker communications and records are privileged and may only be disclosed under certain circumstances.
  • General Laws c. 233, § 20B provides for the confidentiality of patient/psychotherapist communications. Pursuant to G. L. c. 233, § 20B, psychotherapist communications and records are privileged and may only be disclosed under certain circumstances.
  • General Laws c. 111, § 70F provides for the confidentiality of a patient’s HIV testing records. Pursuant to G. L. c. 111, § 70F, HIV testing records may only be disclosed with a patient’s express consent.
  • General Laws c. 233, § 20J provides for the confidentiality of sexual assault counselor communications. Pursuant to G. L. c. 233, § 20J, sexual assault counselor communications are privileged and may only be disclosed under certain circumstances.

These are only some examples of Massachusetts statutes that provide additional protection to certain medical records. There are other additionally protected categories of information under both federal and state law for substance treatment records, alcohol blood test results and minor records, to name others.

Authorizations

If a patient signs a HIPAA-compliant written authorization, a medical provider may release protected health information, as well as additionally protected areas that are explicitly referenced and designated by the patient for release. A HIPAA-compliant authorization form must include the following elements:

  • A description of the information to be disclosed;
  • The name of the individual or the name of the person authorized to make the requested disclosure;
  • The name or other identification of the recipient of the information;
  • A description of each purpose of the disclosure;
  • An expiration date or an expiration event that relates to the individual;
  • A signature of the individual or their personal representative (someone authorized to make health care decisions on behalf of the individual) and the date.

A disclosure for the release of additionally protected information should specifically state which additionally protected records are to be released.

Court Orders

A court order is a mandate issued by a court, a judge, magistrate or a clerk of the court requiring or forbidding someone to do something pursuant to the order. If privileged, additionally protected information is contained in the medical record, in lieu of an authorization, the court order is to be reviewed carefully and only that information which it orders produced is to be produced. It is not necessary to explain that other documents are not being produced in response to a court order if you are following the terms of the order. The judicial order must specify the type of record that is ordered to be released.

Medical providers should adopt health information policies and protocols to follow when a subpoena is served seeking production of a patient’s medical records. Navigating the requirements for the protection of PHI and the authorized release of PHI is difficult and complex. Pierce & Mandell’s health law attorneys have extensive experiencing advising medical providers on HIPAA compliance issues and medical record issues.


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