Posts tagged "health"

Anne Gamble Ten Taxpayer Group, et al. v. Health Facilities Appeals Board, et al. (Lawyers Weekly No. 09-031-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-3545-BLS2 ANNE GAMBLE TEN TAXPAYER GROUP, consisting of GUSTAVE H. MURBY, ANNE C. GAMBLE, WALTER J. GAMBLE, STEPHEN GELLIS, M.D., LORING CONANT M.D., JR., CONANT LOUISE, BRIAN GREENBERG, PEGGY GREENBERG, KAREN D’AMATO, CHRISTINE BARENSFELD, JOHN W. HAGERMAN, ROBERT GAMBLE, SHIRLEY C. DUFF, JAMES K. DUFF, JAMES M. SMITH, and ELLEN K. ANDERSSON, Plaintiffs vs. HEALTH FACILITIES APPEALS BOARD, MONICA BHAREL, M.D., in her capacity as COMMISSIONER OF MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH, MARYLOU SUDDERS, in her capacity as SECRETARY OF MASSACHUSETTS EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, and CHILDREN’S HOSPITAL CORPORATION d/b/a CHILDREN’S HOSPITAL, Defendants MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS AND ON PLAINTIFFS’ MOTION TO AMEND COMPLAINT This is one of several lawsuits filed by a group of plaintiffs unhappy with a decision by the defendant Boston Children’s Hospital (BCH) to eliminate the Prouty Garden as part of a modernization and expansion project. In the instant case, plaintiffs challenge the October 27, 2016 determination by the Commissioner of the Department of Public Health and the Public Health Council (collectively, the Department) to issue a Determination of Need in connection with that project. The Department’s decision is subject to judicial review pursuant to G.L.c. 30A §14 and G.L.c. 111 §25E. With the Administrative Record having been filed, this case is before this Court on Cross Motions for Judgment on the Pleadings, as required by Superior Court Standing Order 1-96. Plaintiffs also seek leave to amend their Complaint. This Court concludes 2 that the plaintiffs’ motions must be DENIED and the defendants’ Cross Motion must be ALLOWED, for reasons set forth herein. BACKGROUND Section 25C of Chapter 111 of the Massachusetts General Laws states that a health care institution contemplating a construction project that requires a “substantial capital expenditure” must first obtain a determination of need or “DoN” from the Department of Public Health (DPH). The purpose of the statute is to “control unnecessary expansion by health care institutions of their patient care facilities,” Howe v. Health Facilities Appeals Bd., 20 Mass.App.Ct. 531, 532 (1985), and to encourage the appropriate allocation of resources for health care purposes. Shoolman v. Health Facilities Appeals Bd., 404 Mass. 33, 36 (1989). In order to obtain a DoN, the health care institution must file an Application, which is reviewed for completeness and then forwarded for to the Public Health Council (PHC) and the Commissioner of DPH for their consideration. 105 C.M.R. §510-100.530.1 The Application is also subject to comments and a public hearing. G.L.c. 111 §25C, 105 C.M.R. §§100.400-100.410. The DoN Program Director prepares a staff report (the Staff Summary). 105 C.M.R. §§100.420-100.421. Upon consideration of the Application, the […]

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Posted by Massachusetts Legal Resources - November 3, 2017 at 2:37 pm

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Brown v. Woods Mullen Shelter/Boston Public Health Commission (Lawyers Weekly No. 09-001-17)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss                                                                                                                                    SUPERIOR COURT 16-805-C                                                                         JASON BROWN                                                                                v.                                                      WOODS MULLEN SHELTER/                                        BOSTON PUBLIC HEALTH COMMISSION                                        MEMORANDUM OF DECISION AND ORDER ON                            DEFENDANT’S MOTION FOR SUMMARY JUDGMENT     Plaintiff Jason Brown, appearing pro se, has brought what appears to be a three-claim complaint against the owner-operator of the Woods Mullen Shelter, a public homeless shelter located in Boston.  All claims arise out of the plaintiff’s expulsion from the shelter on August 10, 2014, when Woods Mullen staff informed Mr. Brown that he would not be permitted to enter the facility as a resident with even medically prescribed marijuana.[1]  As a matter of policy, the Boston Public Health Commission (which manages the shelter) does not allow marijuana or other controlled substances – whether for medical reasons or otherwise – onto its property.  According to Commission Director of Emergency Shelter Services Elizabeth Henderson, “[t]he Commission is constantly striving to monitor and remove substances from the shelter, whether that is [sic] marijuana, alcohol, drugs, unmarked prescription drugs and other similar substances.  The Commission treats marijuana of any nature as it does alcohol and prohibits it from its shelters.”  (Henderson Aff. at para. 6)(emphasis supplied).[2]  Plaintiff refused to leave the shelter, and shelter staff summoned the Boston Police.  When efforts by the police to escort plaintiff off of the site were unsuccessful, Mr. Brown was arrested for trespassing. Plaintiff has brought claims for negligence, negligent infliction of emotional distress and unspecified “civil rights” violations.  These claims are addressed exclusively to Mr. Brown’s expulsion from the Woods Mullen Shelter by the Boston Public Health Commission, and do not reach his arrest at the hands of the Boston Police Department.[3]  The defendant has moved for summary judgment on all counts.  The Court conducted a hearing in respect to this motion on August 28, 2017, at which hearing the plaintiff and counsel for Woods Mullen Shelter/Boston Public Health Commission appeared and presented arguments.  For the reasons which follow, the defendant’s Motion for Summary Judgment shall be ALLOWED IN PART and DENIED IN PART. DISCUSSION The defendant’s first contention is that the Complaint’s claims for negligence and negligent infliction of emotional distress are barred by the plaintiff’s failure to make proper presentment of such claims to the Commission’s chief executive.  The Court agrees. Under G.L. c. 258, _ 4, a tort claim against a public employer must be presented to its “executive officer,” defined in G.L. c. 258, _ 1 as its “nominal chief executive officer or board,” within two years after the cause of action arose.  In the case of the Boston Public Health Commission, the chief executive […]

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Posted by Massachusetts Legal Resources - September 27, 2017 at 6:54 pm

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Therapy Resources Management LLC, et al. v. Whittier Health Network, Inc., et al. (Lawyers Weekly No. 12-120-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 1784CV0942 BLS 1 THERAPY RESOURCES MANAGEMENT LLC, et al vs. WHITTIER HEALTH NETWORK, INC., et al ORDER ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT Count IV of the Amended Complaint seeks a declaratory judgment to the effect that defendants (referred to collectively as “Whittier”) are barred from seeking indemnity from plaintiffs (referred to collectively as “Therapy”). Whittier has not yet answered the amended complaint or asserted a counterclaim, but the record is clear that Whittier believes it has the right to be indemnified by Therapy for litigation costs and a settlement payment incurred by Whittier in connection with an investigation and lawsuit under the False Claims Act (“FCA”), 31 U.S.C. §3729.1 There is an actual controversy between the parties regarding whether, as a matter of law, Whittier can obtain indemnification under its contracts with Therapy which state that “[Therapy] shall indemnify and hold [Whittier] harmless from and against all claims, demands, costs, expenses, liabilities and losses (including reasonable attorney’s fees) which may result against [Whittier] as a consequence of any malfeasance, negligence . . . caused . . . by [Therapy] . . . .” 1 Whittier has effectively obtained some indemnification by refusing to pay invoices for services rendered by Therapy. Thus, Therapy is the plaintiff in this action seeking recovery for non-payment of invoices. The claim for indemnification by Whittier is anticipated because such claim is the stated basis for Whittier’s refusal to pay the invoices. 1 Therapy’s argument for summary judgment on Count IV is based on the following undisputed facts. The losses that Whittier wants indemnification for arise from the fact that Whittier was sued, along with Therapy, for fraud under the FCA. The suit was brought by a former employee of Therapy. There was also another suit by a different former employee of Therapy against Therapy alone. The filing of the suits triggered an investigation by federal officials. The gist of the FCA claims was that Whittier and Therapy knowingly presented false claims for Medicare reimbursement. Both Whittier and Therapy denied the allegations. At some point, the claims against Therapy were dismissed. It is unclear from the record whether the dismissal was a result of a settlement or whether it was a dismissal without prejudice. Sometime later, Whittier entered into a settlement with the FCA plaintiffs, including the government, requiring, among other things, payment by Whittier of $ 2.5 million. Therapy was not a party to the settlement. FCA claims against Therapy were not released in the Whittier settlement. The settlement agreement alleges that Whittier failed “to take sufficient steps to prevent [Therapy] from engaging in a pattern and practice of fraudulently inflating the reported amounts […]

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Posted by Massachusetts Legal Resources - September 6, 2017 at 6:26 pm

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G6 Hospitality Property LLC v. Town of Braintree Board of Health (Lawyers Weekly No. 12-107-17)

COMMONWEALTH OF MASSACHUSETTS   NORFOLK, ss.                                                                      SUPERIOR COURT                                                                                                 CIVIL ACTION 17-0882     G6 HOSPITALITY PROPERTY LLC   vs.   TOWN OF BRAINTREE BOARD OF HEALTH   MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND MOTION FOR A PRELIMINARY INJUNCTION   In its complaint in this action, Plaintiff G6 Hospitality Property LLC (“G6”), which operates a Motel 6 located at 125 Union Street, Braintree, Massachusetts (“the Motel”), seeks certiorari review under G.L. c. 249, § 4 of a decision made by the defendant, Town of Braintree Board of Health (“the Board”), to revoke G6’s license to operate the Motel under G.L. c. 140, §32B and c. 111, §122.[1]  At issue before the Court is G6’s application for a temporary restraining order and motion for a preliminary injunction, enjoining the Board from enforcing its July 13, 2017, decision to revoke G6’s license while this case is litigated. For the reasons that follow, the Court concludes that G6 has not shown that it is entitled to a temporary restraining order or a preliminary injunction, as it cannot show that it is likely to succeed on the merits.  Its application and motion are thus DENIED.   FACTS The relevant facts in the administrative record provided to this Court are as follows: Procedural History:  On May 12, 2017, the Board notified the Motel that an emergency license revocation hearing would be held on May 18, 2017, to determine whether, pursuant to G.L. c. 140, §§30 and 32B, G.L. c. 111, §122 and 105 C.M.R. 410, the Motel had “violated certain provisions of [its] license” because of “concerns relating to public health and safety … as the result of the exorbitant number of police-related responses to the motel since 2010, including but not limited to sudden deaths, sexual assaults/offenses, drug overdoses, warrant services, as well as the most recent shooting of a Braintree police officer and apparent suicide [of the officer’s assailant] that took place at Motel 6 on Friday, May 5, 2017.” Representatives of G6 and Braintree Mayor Joseph Sullivan (“the Mayor”) agreed that the Board would not oppose G6’s request to continue the hearing if G6 agreed to voluntarily close the Motel for 45-days, from June 1 to July 15, 2017, during which time G6 would work on improving the Motel’s security protocol.  Accordingly, G6 requested a continuance of the hearing.  The Board approved the Motel’s request.  The Motel voluntarily closed June 1.  The hearing was rescheduled for July 13, 2017.  Prior to the July 13 hearing, a public notice was published in the local newspaper. Facts Disclosed at the July 13, 2017 Hearing:  At the July 13, 2017 hearing (“the Hearing”), the Board heard testimony […]

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Posted by Massachusetts Legal Resources - August 18, 2017 at 5:46 am

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Daley v. Secretary of the Executive Office of Health and Human Services, et al.; Nadeau v. Director of the Office of Medicaid (Lawyers Weekly No. 10-092-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12200 SJC-12205   MARY E. DALEY, personal representative,[1]  vs.  SECRETARY OF THE EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES & another.[2]   LIONEL C. NADEAU  vs.  DIRECTOR OF THE OFFICE OF MEDICAID.       Worcester.     January 5, 2017. – May 30, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Medicaid.  Trust, Irrevocable trust.  Real Property, Life estate, Ownership.       Civil action commenced in the Superior Court Department on February 11, 2015.   The case was heard by Dennis J. Curran, J., on a motion for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.   Civil action commenced in the Superior Court Department on December 23, 2014.   The case was heard by Shannon Frison, J., on a motion for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Lisa Neeley (Patrick Tinsley also present) for Lionel C. Nadeau. Brian E. Barreira for Mary E. Daley. Ronald M. Landsman, of Maryland, for National Academy of Elder Law Attorneys, Inc. Elizabeth Kaplan & Julie E. Green, Assistant Attorneys General, for Director of the Office of Medicaid & another. Patricia Keane Martin, for National Academy of Elder Law Attorneys (Massachusetts Chapter), was present but did not argue. Leo J. Cushing & Thomas J. McIntyre, for Real Estate Bar Association for Massachusetts, Inc., amicus curiae, submitted a brief.     GANTS, C.J.  These two cases require this court to navigate the labyrinth of controlling statutes and regulations to determine whether applicants are eligible for long-term care benefits under the Federal Medicaid Act (act) where they created an irrevocable trust and deeded their primary asset — their home — to that trust but retained the right to reside in and enjoy the use of the home for the rest of their life.  The Director of the Massachusetts Office of Medicaid (MassHealth) determined that the applicants in these two cases were not eligible for long-term care benefits because their retention of a right to continue to live in their homes made the equity in their homes a “countable” asset whose value exceeded the asset eligibility limitation under the act.  The applicants unsuccessfully challenged MassHealth’s determinations in the Superior Court pursuant to G. L. c. 30A, § 14.  We […]

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Posted by Massachusetts Legal Resources - May 30, 2017 at 3:13 pm

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Whittier IPA, Inc. v. Steward Health Care Network, Inc. (Lawyers Weekly No. 12-005-17)

ΔCOMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1484CV03029-BLS2 ____________________ WHITTIER IPA, INC. v. STEWARD HEALTH CARE NETWORK, INC. ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION FOR LEAVE TO ASSERT COUNTERCLAIMS AGAINST WHITTIER IPA, INC., AND THIRD-PARTY CLAIMS AGAINST ANNA JACQUES HOSPITAL Steward Health Care Network, Inc., (“SHCN”) is a physician network. It negotiates and implements contracts with insurers and other entities that pay for SHCN’s participating doctors to provide medical care to the payors’ insureds or members. Whittier IPA, Inc., is an association of independent physicians. It joined the SHCN network in January 2012, but began exploring other options in 2013. After SHCN learned that Whittier had agreed to join a competing physician network run by the Beth Israel Deaconess Care Organization (“BIDCO”), SHCN terminated its agreements with Whittier effective August 31, 2014. Whittier claims that is still owed substantial sums by SHCN under the parties’ contracts. The court (Kaplan, J.) granted partial summary judgment in Whittier’s favor in June 2015, declaring that if SHCN received incentive payments from health insurers and other payors for periods during which Whittier was an SHCN member, then “SHCN breached its contract with Whittier by failing to pay Whittier its pro rata share of those payments.” The amount that SHCN must pay Whittier is still in dispute. The current case schedule, which was jointly requested by both parties, requires the litigants to complete all fact discovery by February 10, 2017, and to complete the exchange of any expert reports by March 24, 2017. SHCN seeks leave to assert counterclaims against Whittier and third-party claims against Anna Jacques Hospital. The Court will DENY this motion. It would be futile to allow SHCN to assert its proposed counterclaims against Whittier for breach of contract because they could not survive a motion to dismiss. The proposed claims against Anna Jacques for intentional interference and allegedly violating G.L. c. 93A would also be futile. In any case, it would be unfairly prejudicial to – 2 – Whittier and to Anna Jacques to allow permissive joinder of a new defendant-in-counterclaim under Mass. R. Civ. P. 20 just weeks before the completion of discovery in this case. SHCN has no right to join Anna Jacques as a defendant-in-counterclaim under Rule 19 and does not seek to assert third-party claims for indemnification or contribution as allowed under Rule 14. 1. Proposed Counterclaims Against Whittier. SHCN seeks leave to assert counterclaims against Whittier for allegedly breaching parts of its written contracts with SHCN. The Court will deny leave to assert these counterclaims because doing so would be futile, in that these counterclaims could not survive a motion under Mass. R. Civ. P. 12(b)(6) to dismiss for failure to state a claim upon […]

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Posted by Massachusetts Legal Resources - February 8, 2017 at 8:56 pm

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Whittier IPA, Inc. v. Steward Health Care Network, Inc. (Lawyers Weekly No. 12-005-17)

ΔCOMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1484CV03029-BLS2 ____________________ WHITTIER IPA, INC. v. STEWARD HEALTH CARE NETWORK, INC. ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION FOR LEAVE TO ASSERT COUNTERCLAIMS AGAINST WHITTIER IPA, INC., AND THIRD-PARTY CLAIMS AGAINST ANNA JACQUES HOSPITAL Steward Health Care Network, Inc., (“SHCN”) is a physician network. It negotiates and implements contracts with insurers and other entities that pay for SHCN’s participating doctors to provide medical care to the payors’ insureds or members. Whittier IPA, Inc., is an association of independent physicians. It joined the SHCN network in January 2012, but began exploring other options in 2013. After SHCN learned that Whittier had agreed to join a competing physician network run by the Beth Israel Deaconess Care Organization (“BIDCO”), SHCN terminated its agreements with Whittier effective August 31, 2014. Whittier claims that is still owed substantial sums by SHCN under the parties’ contracts. The court (Kaplan, J.) granted partial summary judgment in Whittier’s favor in June 2015, declaring that if SHCN received incentive payments from health insurers and other payors for periods during which Whittier was an SHCN member, then “SHCN breached its contract with Whittier by failing to pay Whittier its pro rata share of those payments.” The amount that SHCN must pay Whittier is still in dispute. The current case schedule, which was jointly requested by both parties, requires the litigants to complete all fact discovery by February 10, 2017, and to complete the exchange of any expert reports by March 24, 2017. SHCN seeks leave to assert counterclaims against Whittier and third-party claims against Anna Jacques Hospital. The Court will DENY this motion. It would be futile to allow SHCN to assert its proposed counterclaims against Whittier for breach of contract because they could not survive a motion to dismiss. The proposed claims against Anna Jacques for intentional interference and allegedly violating G.L. c. 93A would also be futile. In any case, it would be unfairly prejudicial to – 2 – Whittier and to Anna Jacques to allow permissive joinder of a new defendant-in-counterclaim under Mass. R. Civ. P. 20 just weeks before the completion of discovery in this case. SHCN has no right to join Anna Jacques as a defendant-in-counterclaim under Rule 19 and does not seek to assert third-party claims for indemnification or contribution as allowed under Rule 14. 1. Proposed Counterclaims Against Whittier. SHCN seeks leave to assert counterclaims against Whittier for allegedly breaching parts of its written contracts with SHCN. The Court will deny leave to assert these counterclaims because doing so would be futile, in that these counterclaims could not survive a motion under Mass. R. Civ. P. 12(b)(6) to dismiss for failure to state a claim upon […]

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Posted by Massachusetts Legal Resources - February 2, 2017 at 7:32 am

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Middlesex Integrative Medicine, Inc. v. Massachusetts Department of Public Health (Lawyers Weekly No. 12-180-16)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2014-2727-BLS1 MIDDLESEX INTEGRATIVE MEDICINE, INC. vs. MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH MEMORANDUM OF DECISION AND ORDER ON PARTIES’ CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS The plaintiff, Middlesex Integrative Medicine, Inc. (MIM), filed this action in the nature of certiorari under G. L. c. 249, § 4 against the defendant, the Massachusetts Department of Public Health (Department), after the Department denied each of MIM’s three applications to operate Registered Marijuana Dispensaries (RMDs) in Massachusetts. MIM and the Department have each moved for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c). On November 21, 2016, this court held a hearing on the motions. For the reasons stated below, MIM’s motion for judgment on the pleadings is DENIED and the Department’s motion for judgment on the pleadings is ALLOWED. BACKGROUND In November, 2012, Massachusetts voters approved a ballot initiative allowing for the medical use of marijuana for qualifying patients. Thereafter, the Legislature enacted Chapter 369 of the Acts of 2012, known as “An Act for the Humanitarian Medical Use of Marijuana” (Act). St. 2012, c. 369. The Act authorized the Department to register at least one, and up to five, RMDs in each Massachusetts county, up to a total of 35 statewide, during the first year after the law’s effective date (January 1, 2013). G. L. c. 94C, App. § 1-9. Pursuant to the Act, the Department promulgated regulations (105 Code Mass. Regs. § 725.001 et seq.) which established, among other things, a two phase application process. In Phase 1, the applicant paid a non-refundable fee and submitted basic information that was reviewed by the Department. See 105 Code Mass. Regs. § 725.100(B)(1). If the applicant submitted all of the required information in a timely fashion, the applicant was notified that it could proceed to Phase 2. See id. at § 725.100(B)(2). In this phase, the applicant paid a nonrefundable $ 30,000 fee and submitted an application containing much more detailed information about its proposed dispensary, after which the Department evaluated and scored the application. See id. at § 725.100(B)(3)-(5). MIM sought to operate three RMDs – one in Middlesex County (Everett), one in Norfolk County (Norwood), and one in Worcester County (Shrewsbury). In August 2013, MIM filed a a Phase 1 application for each location and, along with other applicants, MIM was invited by the Department to submit Phase 2 applications. On November 21, 2013, MIM paid the Department $ 90,000 and filed three Phase 2 applications. Out of a possible 163 points, MIM received scores of 118, 127, and 118 on its three applications. On January 31, 2014, the Department announced the selection of 20 applicants to receive […]

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Posted by Massachusetts Legal Resources - January 5, 2017 at 10:28 am

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Service Employees International Union, Local 509 v. Department of Mental Health, et al. (Lawyers Weekly No. 11-180-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12035   SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509  vs.  DEPARTMENT OF MENTAL HEALTH & others.[1]     Suffolk.     September 6, 2016. – November 22, 2016.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Privatization Act.  Commissioner of Mental Health.  Commonwealth, Contracts.  Contract, Validity.  Public Employment.  Laches.  Practice, Civil, Judgment on the pleadings.       Civil action commenced in the Superior Court Department on February 15, 2012.   Following review by this court, 469 Mass. 323 (2014), the case was heard by Janet L. Sanders, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Ian O. Russell (Katherine D. Shea with him) for the plaintiff. Iraida J. Álvarez, Assistant Attorney General, for Department of Mental Health. Carl Valvo & Ariel G. Sullivan, for Advocates, Inc., & others, were present but did not argue. Mark G. Matuschak & Robert Kingsley Smith, for Pioneer Institute, Inc., were present but did not argue. Anita S. Lichtblau & Robert E. Cowden, III, for Massachusetts Council of Human Services Providers, Inc., & others, amici curiae, submitted a brief.     LENK, J.  This is the second time that the plaintiff labor union appeals from dismissal of the declaratory judgment action it first brought against the Department of Mental Health (DMH or agency) in 2012.  Service Employees International Union, Local 509 (SEIU or union) maintains that certain contracts DMH made in 2009 with private vendors are “privatization contracts” subject to the requirements of the Pacheco Law, G. L. c. 7, §§ 52-55.  The Pacheco Law establishes certain prerequisites that agencies must meet when seeking to enter into privatization contracts. Because DMH had determined that the subject contracts were not privatization contracts, however, it did not comply with those statutory prerequisites.  In bringing this action, the union seeks, among other things, a declaration invalidating the contracts on the basis of G. L. c. 7, § 54 (§ 54), which provides that no privatization contract “shall be valid” where an agency did not follow the necessary procedures. In our previous decision in this case, Service Employees Int’l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 324 (2014) (SEIU I), we rejected DMH’s contention that the union lacked standing to challenge, in a declaratory judgment action, the agency’s unilateral determination that the contracts were not […]

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Posted by Massachusetts Legal Resources - November 22, 2016 at 9:45 pm

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Service Employees International Union, Local 509 v. Department of Mental Health (Lawyers Weekly No. 10-138-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us   SJC-11544   SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509  vs.  DEPARTMENT OF MENTAL HEALTH.       Suffolk.     April 7, 2014. – August 15, 2014.   Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Privatization Act.  Commissioner of Mental Health.  Auditor. Declaratory Relief.  Practice, Civil, Declaratory proceeding, Standing, Parties, Failure to join party.   Civil action commenced in the Superior Court Department on February 15, 2012.   The case was heard by Merita A. Hopkins, J., on a motion for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Alfred Gordon O’Connell for the plaintiff. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendant. Donald J. Siegel & James A.W. Shaw, for Massachusetts AFL-CIO, amicus curiae, submitted a brief. Gerald A. McDonough, for the Auditor of the Commonwealth, amicus curiae, submitted a brief.     LENK, J.  The plaintiff, Service Employees International Union, Local 509 (union), appeals from an order of a Superior Court judge dismissing its complaint for declaratory judgment pursuant to G. L. c. 231A, §§ 1, 2, and 5. In that complaint, the union alleged that the Department of Mental Health (DMH) violated the Massachusetts privatization statute, G. L. c. 7, §§ 52-55 (Pacheco Law), by entering into contracts with private entities to obtain services substantially similar to those performed by members of the union, but failing to comply with relevant statutory obligations.  DMH filed an answer as well as a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974).  After a hearing, the judge granted DMH’s motion, which she treated as a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974).  The judge determined that the union lacked both direct and associational standing to seek declaratory relief and, additionally, that the union’s failure to join necessary parties constituted a separate jurisdictional bar requiring dismissal.  The judge did not err in declining to consider the union’s complaint on the basis of its failure to name all necessary parties.  However, because we conclude that the union has direct standing to seek a declaratory judgment under G. L. c. 231A that would invalidate the contracts at issue, we remand the case to the Superior Court for the limited purpose of allowing the union to seek leave to amend […]

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Posted by Massachusetts Legal Resources - August 15, 2014 at 8:41 pm

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