Number 9 January 3, 1980

Number 9 January 3, 1980 Paul D. Gitlin, Esq. Chairman Health Facilities Appeals Board 60 State Street Suite 2750 Boston, MA 02109 Dear Mr. Gitlin: You have asked my opinion whether as a consumer member and chairman of the Health Facilities Appeals Board (hereafter, "the Board"),' you may per- form legal services for physicians in matters not related to their role as providers of health care services. Your question arises because General Laws Chapter 6, section 166, which establishes the Board, provides in part: . . . The board shall consist of five persons to be appointed for terms of three years by the governor, at least three of whom shall be consumers of health care services who are not officers or employees of, and do not bear any fiduciary relationship to a person or institu- tion providing health care services. One such consumer member shall be a member of the bar of the commonwealth and shall be designated by the governor to serve as chairman of the board. (Em- phasis supplied.) Your questions relate to the statutory prohibition against fiduciary relationships with health care providers by consumer members of the Board. Specifically, you have asked whether this prohibition extends to the attorney-client relation- ship, if that relationship is unrelated to the client's provision of health care services. Assuming that the prohibition against fiduciary relationships does not extend to the attorney-client relationship, you then ask: (1) does the prohibition extend to all providers of health care services; (2) does the prohibition extend beyond the date of one's appointment to the Board; (3) does the prohibition extend to other members of one's law firm; and 'The Health Facilities Appeals Board determines appeals of decisions of the Department of Public Health regarding the need for proposed construction of health care facilities and proposed substantial changes in services of such facilities. G.L. c. 6. §166; c. 1 II . §§25E and 25C. 114 P.D. 14 (4) may the intent of the Legislature be satisfied by disqualifying oneself in matters before the Board involving present or former clients. For the reasons stated below, 1 conclude that the prohibition against fiduciary relationships contained in G.L. c. 6, §166, does include the attorney-client relationship and that a consumer member of the Board may not render legal services to a physician, even when those services are unrelated to the provision of health care services. Moreover, this prohibition does continue throughout the tenure of the Board member and may not be avoided by disqualification in matters before the Board involving the member's present or former clients.^ In interpreting this statutory prohibition against fiduciary relationships, 1 am guided by the principle that where the language of a statute is clear and unambi- gious, that language must be interpreted according to its "usual and natural meaning." Rosenbloom v. Kokofsky, Mass. Adv. Sh. (1977) 2534, 2537-2538; Commonwealth v. Gove, 366 Mass. 351, 354 (1974). General Laws c. 6, §166, forbids consumer members from bearing "'any fiduciary relationships to a per- son . . . providing health care services." (Emphasis added.) The fiduciary nature of the relationship between attorney and client is well established. Hen- drickson v. Sears, 365 Mass. 83, 90 (1974); Tarr v. Vivian, 111 Mass. 150, 153 (1930). It is equally clear that a physician is a "person . . . providing health care services." It follows ineluctably that one who acts as attorney for a physi- cian bears a fiduciary relationship to a person providing health care services. Thus, giving the statutory language its full effect, see Rosenbloom, supra, Mass. Adv. Sh. (1977) at 2537-2538, I conclude that a consumer member of the Health Facilities Appeals Boards may not provide legal services to a physi- cian without violating G.L. c. 6, §166. This conclusion is supported by the legislative history of the statute. The Report of the Joint Special Committee on Health Benefits and Health Services, House Document No. 5968 (June, 1972) emphasized the "central importance" of the consumer in the determination of need process. "It is for the consumer of service that the entire system should exist." Id. at 40. "For this reason," the Committee explained, "the consumer has been written into the majority posi- tion on the Health Facilities Appeals Boards." Id. To preserve the intended role of the Board's consumer members, the Joint Committee advised that three of the five members of the Board "must be consumers not associated with any provided of health care services." Id. at 39 (emphasis supplied). By its use of the phrase "associated with," the Report supports my conclusion that the Leg- islature intended a broad prohibition of fiduciary relationships with health care providers. This conclusion is also buttressed by the fact that in addressing the same mischief of potential conflicts of interest, the General Court has at other times employed a more precisely tailored remedy. Indeed, in the very act which added G.L. c. 6, §166, the Legislature chose a narrower approach to deal with poten- tial conflicts of interest involving members of the Public Health Council. St. 1972, c. 776, Section 2A, amending G.L. c. 17, §3.' ^Because of the clearly hypothetical nature of the questions identified above as subsidiary questions ( 1 ) & (3). I specifically decline to answer those questions See 1966/67 Op. Atty Gen. No. 112. Rep A.G; Pub Doc No. 12 at 223 (1967); I Op. Atty. Gen. at 273 (1895). ^The Public Health Council, along with the Commissioner of I'ublic Health, makes the initial determination of the need for construction of health care facilities or for substantial changes in service of such facilities. See G.L. c. 111. §25 C. The Department of Public Health consists of the Commissioner and the Public Health Council. G.L. c. 17, §1. P.D. 14 1,5 Similarly to the Health Facilities Appeals Board, the Public Health Council consists of providers of health care services and "nonproviders", that is, mem- bers who represent the public interest. G.L. c. 17. §3. The Legislature has chosen to prevent conflicts of interest involving non-provider members by precise restrictions: For the purposes of this section "nonprovider" shall mean a person whose background and experience indicate that he is quali- fied to act in the broad public interest, who, and whose spouse, parents, siblings or children, has no financial interest in a health care facility, who, and whose spouse, has no employment relation- ship to a health care facility, to a nonprofit service corporation established in accordance with chapters one hundred and seventy- six A to one hundred and seventy-six E, inclusive, nor to a corpora- tion authorized to insure the health of individuals, and who, and whose spouse, is not licensed to practice medicine. St. 1972 c. 776 §2A. Further assurance against conflicting loyalties was afforded by section 3 of the 1972 Act, which added G.L. c. Ill, §§25B-25G. The Legislature there provided, inter alia, that ... no member of the public health council who is an owner, in whole or in part, an officer or an employee of a health care facility, or who bears any other fiduciary relationship to such a facility, shall participate in any decision which would substantially affect the fa- cility to which he is related. St. 1972, c. 776, §3. Within one act, therefore, the Legislature has fashioned two very different statutory methods to protect against essentially the same evil. Potential conflicts of interests involving consumer members of the Health Facilities Appeals Board are addressed by a broad prohibition of fiduciary relationships with health care providers. This broad prohibition contrasts with the approach adopted concern- ing nonprovider members of the Public Health Council, whose conflicts are prevented primarily through a detailed list of forbidden relationships. Where the Legislature has chosen in a comprehensive statutory scheme to employ to such different approaches to a similar problem, I must conclude that the distinction was fully intended. See, Marshal House, Inc. v. Rent Control Board of Brook- line, 358 Mass. 686, 698-699 (1971).^ Similarly, the Legislature's intent in prohibiting fiduciary relationships would be defeated if that prohibition did not extend beyond the date of the Board member's appointment. The statute provides that "the board shall consists of five persons," at least three of whom "do not bear any fiduciary relationships" to a health care provider. Because this language is phrased in the present tense, the proscription is a continuing one. The words of a statute must be given their ordinary meaning, considered in light of the aim the Legislature sought to accomplish. Prudential Insurance Co. of America v. City of Boston, 369 Mass. •The Legislature has chosen yet another approach to potential conflicts of interest involving members ol the Rale Setting Commis- sion. Members of the Rate Setting Commission are forbidden to pailicipate in activities "that would conflict with the fair, impartial, prudent and efficient full-time conduct of [their] office." G.L. c. 6A. §32. Instead of a broad prohibition of fiduciary relationships, cf. G L c 6, §166, or a detailed list of forbidden relationships, cf. G.L. c. 17, §3. the Rate Setting Commission statute establishes merely a general standard of conduct, leaving the identification of conflicting activities for Commission members themselves. The Legislatures 's choice of varying approaches to similar problems within those agencies regulating health care services should not be defeated through statutory construction. 116 P.D. 14 542, 546 (1976). Accordingly I conclude that consumer members may not bear fiduciary relationships to health care providers at any time during their period of service on the Board. I further conclude that the consumer member may not avoid the prohibition simply by disqualification in Board cases which involve present or former cli- ents. The Legislature provided such a curative measure in dealing with potential conflicts involving members of the Public Health Council. St. 1972, c. 766, §3, adding G.L. c. Ill, §25B. The language of G.L. c. 6, §166, prohibiting fiduciary relationships with health care providers, however, is plain and unam- bigious and contains no exceptions or qualifications. For the reasons discussed above, I must conclude that this distinction in treatment was fully intended. I am mindful of the fact that the broad language of G.L. c. 6, §166, prohibits some relationships which arguably may pose no threat to consumer loyalty. Where the language of a statute is unambiguous, however, it is not susceptible to a narrowing construction designed to avoid a hardship. See Rosenbloom supra, Mass. Ad. Sh. (1977) at 2537-2538; Milton v. Metropolitan District Comm'n, 342 Mass. 222, 227 (1961). Accordingly, I am of the opinion that General Laws Chapter 6, section 166 prevents you from serving as attorney to a physician, even with respect to a matter unrelated to the physician's role as a provider of health care. Very truly yours, FRANCIS X. BELLOTTI Attorney General