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Oberlies v. Attorney General

Supreme Judicial Court of Massachusetts, Suffolk

June 18, 2018

AMANDA S. OBERLIES & others[1]
v.
ATTORNEY GENERAL & another.[2] DONNA KELLY WILLIAMS & others
v.
ATTORNEY GENERAL & another.

          Heard: April 3, 2018.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 19, 2018.

          The case was reported by Gaziano, J. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on September 8, 2017. The case was reported by Gaziano, J.

          Edward V. Colbert, III (David Koha & Carmen F. Francella, III, also present) for Donna Kelly Williams & others.

          Juliana deHaan Rice, Assistant Attorney General (Michael B. MacKenzie, Assistant Attorney General, also present) for the Attorney General.

          Andrew N. Nathanson (Elissa Flynn-Poppey & Mathilda McGee-Tubb also present) for Amanda S. Oberlies & others.

          The following submitted briefs for amici curiae: Thaddeus A. Heuer, Andrew M. London, & Rachel C. Hutchinson for Steward Health Care System LLC.

          Edward V. Colbert, III, David Koha, & Carmen F. Francella, III, for Massachusetts Nurses Association.

          Carol Igoe, of California, & David Hadas for National Nurses United & another.

          Thomas R. Kiley, Carol Valvo, & Meredith Fierro for American Nurses Association Massachusetts, Inc.

          Elissa Flynn-Poppey, Andrew N. Nathanson, & Mathilda S. McGee-Tubb for Massachusetts Health & Hospital Association & others.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LENK, J.

         We are asked to determine whether two initiative petitions satisfy the requirements of art. 48 of the Amendments to the Massachusetts Constitution. The first, Initiative Petition 17-07, would limit the number of patients who may be assigned to a registered nurse in Massachusetts health care facilities, and would prohibit facilities from accommodating those limits by reducing certain other health care staff. The second, Initiative Petition 17-08, contains the same provisions as the first petition, with an additional section that would require publicly funded hospitals to make annual public disclosures of their financial assets. The Attorney General certified that Initiative Petition 17-07 meets the requirements of art. 48, but declined to certify Initiative Petition 17-08, after concluding that the mandate for financial disclosure was not sufficiently related to or mutually dependent upon the other provisions in the petition. The opponents of Initiative Petition 17-07, and the proponents of Initiative Petition 17-08, sought relief before a single justice in the county court.

         On the request of all parties, the single justice reserved and reported both cases to this court. In the first case, the plaintiffs challenge the Attorney General's decision to certify Initiative Petition 17-07; they contend that the nurse-to-patient ratios are not sufficiently related to or dependent upon the requirement that, in implementing those ratios, covered facilities are prohibited from reductions in other health care staff. Because the restriction on staff reduction pertains to implementation of the nurse-to-patient ratios, we conclude that these two elements of the proposal form "a unified statement of public policy, " Carney v. Attorney Gen., 447 Mass. 218, 231 (2006) (Carney I), and therefore are related "within the meaning of art. 48." See Hensley v. Attorney Gen., 474 Mass. 651, 672 (2016). The plaintiffs challenging Initiative Petition 17-07 also argue that it is not in the form required by art. 48 for presentation to the voters, on a number of grounds, which we determine are unsupported. As a result, we conclude that the Attorney General's decision to certify Initiative Petition 17-07 was correct.

         In the second case, the plaintiffs challenge the Attorney General's decision not to certify Initiative Petition 17-08; they argue that the financial disclosure provision is sufficiently related to the nurse-to-patient ratios, because it will shed light on facilities' capacity to meet new staffing needs. We conclude that the Attorney General was correct in declining to certify Initiative Petition 17-08 on the ground that the financial asset disclosure requirement and the limitations on nurse-patient staffing ratios are not sufficiently related or mutually dependent, as required by art. 48. See Massachusetts Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209, 219-220 (1981).[5]

         1. Background.

         In August, 2017, two petitions, each signed by ten registered voters in the Commonwealth, were submitted to the Attorney General for certification. The Attorney General numbered them Initiative Petition 17-07 and Initiative Petition 17-08. Although both are entitled "Initiative Petition For A Law Relative To Patient Safety And Hospital Transparency, " the petitions differ with respect to one section.

         Initiative Petition 17-07 seeks to create a new statute, entitled "The Patient Safety Act" (act or proposed act) that would amend c. Ill. of the General Laws. The act would create "patient assignment limits" for registered nurses working in "facilities" in Massachusetts. The proposed act defines the term "[f]acility" as "a hospital licensed under [G. L. c. Ill. § 51], the teaching hospital of the University of Massachusetts medical school, any licensed private or [S]tate-owned and [S]tate-operated general acute care hospital, an acute psychiatric hospital, an acute care specialty hospital, or any acute care unit within a [S]tate[-]operated healthcare facility." "[R]ehabilitation facilities" and "long-term care facilities" are explicitly excluded.

         The act proposed by Initiative Petition 17-07 would set limits on the number of patients who could be assigned to a registered nurse in any given facility, based on the unit where the nurse works and the condition of the patients. For example, in any emergency services department, a registered nurse would be assigned only one critical care or intensive care patient; in pediatric units, up to four pediatric patients could be assigned to one registered nurse. In any unit not specifically listed in the proposed act, the patient assignment ratio would be four patients per registered nurse. The patient assignment limits would be in effect at all times except "during a [S]tate or nationally declared public health emergency."

         The proposed act provides, "Each facility shall implement the patient assignment limits established by [G. L. c. Ill. §] 231C [the nurse-patient limit provision of the proposed act]. However, implementation of these limits shall not result in a reduction in the staffing levels of the health care workforce." We refer to this requirement as the "workforce reduction restriction." The "health care workforce" is defined by the proposed act as all "personnel employed by or contracted to work at a facility that have an effect upon the delivery of quality care to patients, including but not limited to registered nurses, licensed practical nurses, unlicensed assistive personnel, service, maintenance, clerical, professional and technical workers, and all other health care workers." The proposed act would require each facility to submit a written plan to the Health Policy Commission (HPC), [6] certifying that the facility will implement the patient assignment limits without diminishing its health care workforce.

         The act proposed by Initiative Petition 17-07 also would authorize the HPC to promulgate regulations governing implementation and operation of the act. These regulations would include, but not be limited to, "regulations setting forth the contents and implementation of: (a) certification plans each facility must prepare for implementing the patient assignment limits enumerated in [§] 231C, including the facility obligation that implementation of limits shall not result in a reduction in the staffing level of the health care workforce assigned to such patients; and (b) written compliance plans that shall be required for each facility out of compliance with the patient assignment limits." The HPC would not be authorized to promulgate any regulation that directly or indirectly delays, waives, or modifies the patient assignment limits, or the requirement that those limits be implemented without resulting reductions in a facility's health care workforce.

         Under the terms of the proposed act, the HPC "may conduct inspections of facilities to ensure compliance with the terms of this act. A facility's failure to adhere to the patient assignment limits, " as adjusted per the act's requirements, "shall be reported by the [HPC] to the Attorney General for enforcement." The Attorney General would be able to sue a facility found to be in violation of the act in the Superior Court for injunctive relief and civil penalties up to $25, 000 per violation.

         The other initiative petition at issue in this case, Initiative Petition 17-08, seeks to enact the "Patient Safety and Hospital Transparency Act." Initiative Petition 17-08 is essentially identical to Initiative Petition 17-07, but with one additional provision. General Laws c. Ill. § 231K, would require that "[e]ach facility that accepts funds from the Commonwealth . . . report annually to the [HPC] all financial assets owned by the facility, along with assets of any holding company and any and all parent, subsidiary, or affiliated companies." Under Initiative Petition 17-08, the HPC would be required to make this information public within seven days of its receipt, unless doing so otherwise is prohibited by law.

         In September, 2017, the Attorney General certified that Initiative Petition 17-07 is in proper form for submission to the people; that it is not substantially the same as any measure qualified for submission to the people at either of the two preceding biennial State elections; and that it contains only matters that are related or mutually dependent and not excluded from the initiative process under art. 48. By December 6, 2017, the petition's proponents had gathered and filed sufficient voter signatures to require the Secretary of the Commonwealth (Secretary) to transmit the petition to the Legislature. The Secretary did so in January, 2018. If the Legislature does not adopt the measure, and if the proponents submit sufficient additional signatures by July 3, 2018, the Secretary intends to include the proposed law in ...


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