COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT

CIVIL ACTION
NO. 14-2033-BLS 2
COMMONWEALTH OF MASSACHUSETTS,
Plaintiff
vs.
PARTNERS HEALTHCARE SYSTEM, INC.,
SOUTHSHORE HEALTH AND EDUCATIONAL CORPORATION, and
HALLMARK CORPORATION
Defendants
ORDER REGARDING SEPTEMBER 29.2014 STATUS CONFERENCE
On June 30, 2014, this Court, with the parties' agreement, permitted a period of public
comment regarding the proposed consent judgment now before me. Originally, those comments
together with the parties' responses to them were to be submitted to the Court by August 1, 2014,
with a heading scheduled for August 5, 2014. On July 17, 2014, the Commonwealth requested to
postpone the hearing because the Health Policy Commission (HPC) was not expected to
complete its final report concerning the proposed settlement until September 3,2014. This
Court agreed that a postponement of the hearing was in order, but did not adopt the
Commonwealth's suggestion that the deadline for comments remain intact. Seeing no reason
why the comment period should not be similarly extended, this Court revised its schedule so that
the comments and responses to them were to be filed with the Court by September 25, 2014.
The comments on the proposed judgment have been extensive. Politicians, leaders in the
business community, health care providers, academics, and health care advocacy organizations
have all contributed. Although there are certainly many who favor the adoption of the consent
1
judgment, others (more than half the comments received) raise serious concerns. Notably, some
of the most critical comments came from organizations or individuals whose purpose is to
advocate for the public interest. They predict that the consent judgment would not only clear the
way for higher health care prices in Massachusetts in the long term but also put at risk health
care programs upon which the elderly, low income and mentally ill depend. One organization
(the American Antitrust Institute) questioned whether the enforcement mechanisms
contemplated by the consent judgment are realistic or workable. And the HPC - the entity
created by the legislature to monitor changes in the health care market in an effort to keep health
care expenses in check - pointed out numerous shortcomings to the proposed settlement and
found almost nothing to commend it.
At the end of the day on September 25, 2014, this Court received not only hard copies of
all of these comments but also the Commonwealth's and Partners' responses to those comments.
Not surprisingly, the material is voluminous. Although this Court has been able to access the
i
comments as they have become available through the Attorney General's website, this Court is
seeing the parties' responses only today. More significant, the parties submitted an amended
final judgment, which apparently changes some terms of the original judgment in response to the
HFC's Final Report. Finally, the parties have submitted memoranda as to the legal standard that
this Court should apply in deciding whether to approve the consent judgment as amended.
Clearly, reading all of this material - and fully digesting it ~ will take some time.
The parties are due to appear before this Court on Monday, September 29, 2014. As
requested by the Commonwealth when it sought the extension of time back in July, this Court set
this as a "status conference," not as a hearing as to whether the judgment should be approved. At
the same time, the parties have expressed a desire for this Court to act expeditiously. But the
2
issues raised by this case are simply too important to be dealt with hastily. Moreover, what is
before this Court for approval has now been altered, and whether those changes address the
issues raised by the comments is yet to be determined.
That is not to say that progress cannot be made on September 29. Accordingly, this
Court suggests that the parties address the following:
1. How has the proposed consent judgment been modified? What terms have not been
changed and how do they work? More specifically, how will the consent judgment as amended
be enforced?
2. The parties had originally agreed to a public comment period similar to that used in
federal antitrust litigation under the Tunney Act, 15. U. S.C. 16. Should this Court allow an
additional period of public comment in light of these modifications?
3. Some federal courts have, in addition to permitting comments, held evidentiary
hearings or appointed independent experts to advise and assist the court in understanding the
issues. Should this Court consider doing the same? If I were to seek the assistance of an
expert, what process should I follow?
4. What is the applicable standard of review that this Court applies in determining
whether to approve the consent judgment? How does it differ from the standard that federal
courts apply under the Tunney Act?
Dated: September 26, 2014
SO ORDERED.
3