Winter 2010

Winter 2010

No room for error

No room for error

We need to make global payments for everyone involved in health care

part one of Massachusetts’s courageous leap into health system reform offered something for everyone. It brought health care coverage to uninsured residents; it promised (but could not deliver because of the soured economy) improved reimbursement for care to providers; and it brought more than 100,000 new members to insurance companies. It also required something of everyone: Most employers had to offer insurance or pay a penalty, and most individuals had to purchase insurance or pay a penalty. Providers continue to play a leading role in caring for these newly enrolled individuals while suffering significant and harmful cuts to our Medicaid rates.

Intentionally set aside for Part Two were the matters of payment and care delivery reform. Now, thanks to the work of the state’s Special Commission on the Health Care Payment System, we have begun to tackle these challenges in tandem. Doing so makes sense because the way medical care is delivered is tightly intertwined with how we pay for it. And to bring about the cost containment so needed in our system, we must get these reforms right. Just as with Part One of health reform, it will take global participation to do this, with everyone doing their part and sacrificing a little.

Massachusetts hospitals agree with the Special Commission’s primary points: The current fee-for-service system is not the most efficient way to pay for healthcare, nor does it encourage the best care for patients. The commission’s recommendation — a move to “global payments” — will revolutionize the way care is delivered.

We know that revolutions can tear down vital systems or they can energize and rebuild them. What we want to avoid is tearing down our world-class health care system, which now employs one in five Massachusetts residents. The way the next set of reforms is implemented will go a long way toward determining what type of revolution we have. The Massachusetts Hospital Association is leading the way to make sure the Part Two reforms are translated from theory to action in a responsible and thoughtful way.

so just what are “global payments?” Under a global payment system, insurers will make single payments to providers intended to cover all the care an average patient should need over a fixed period of time. Right now, providers bill insurers for each procedure, test, and visit. Anyone can see our current system has misaligned incentives.

For those with long memories, global payments may sound a lot like “capitation,” a payment system HMOs embraced in the early 1990s. Under capitation, providers were paid a strict per-patient, per-month fee. This system substantially limited the risk of insurance companies and transferred much of the insurance risk to doctors and hospitals. Patients didn’t like it because they suspected that their doctors were withholding needed treatment from them. For providers, it was a mixed bag. Some had contracts that enabled them to be creative to keep patients well. Other providers did not receive adequate payments and support from insurers to care for their patients. In the end, the capitation system fell apart, and we saw health care costs skyrocket more dramatically than before, with consumers demanding unlimited choices even as they struggled with premium hikes.

We can’t afford another failed experiment with capitation. That is why hospitals, doctors, and other patient advocates share a keen interest in ensuring that global payments work for everyone involved. We know the devil is in the details. Current models for global payment contracts include bonuses to providers for meeting quality measures — an important improvement over old-style capitation contracts. Such incentives are critical to ensuring that doctors and hospitals are able to offer patients the right care at the right time.

A well-designed global payment system could offer patients more coordinated care while stemming the increases we are seeing in health care costs. For example, global payments may make it easier for providers to establish “medical homes” for patients. A medical home isn’t just a primary care practice; it is a care network in which health care providers communicate seamlessly and are able to do more to keep patients well rather than just treat them when they’re sick.

Medical homes are especially effective in helping patients manage chronic diseases, which cost $1.5 trillion to treat annually in the United States. Consider a patient with diabetes, one of the most costly, widespread, and disabling diseases among the US population. In addition to their doctor, diabetic patients treated in a medical home could have access to nurse practitioners who monitor their blood sugar levels closely, nutritionists who help with diet, and care coordinators — an entire team that will help the whole system of care run smoothly and avoid unnecessary tests and emergency care.

Taken alone, global payments in no way guarantee cost savings or better care delivery. The Massachusetts Hospital Association is raising and addressing foundational issues to ensure successful implementation of a global payment system that will work for all of us.

A successful global payment system must generate better and more accessible information about our health care system. That should include more transparency about quality measures, more transparency around pricing by insurers and providers, and more information about consumer behavior and satisfaction. We can only know if the system is working for everyone if we collect and publish that data.

The new payment system must also enable providers to control the new insurance risks transferred to them. Insurance companies hold billions of dollars in reserves to cover financial risk. If insurers are passing a portion of these risks on to providers, they should be responsible for passing on the reserves as well. This would be a significant system change that could require reforming some of our insurance laws.

Significant infrastructure will have to be created — and paid for — to handle global payments. Accountable Care Organizations (ACOs) would encompass networks of doctors, hospitals, and other care providers to coordinate care and share the financial risk of treating patients. These provider organizations will need more than computer networks and electronic health records — although those will be necessary — to enable them to meet quality and cost goals. They will also need actuarial and data analysis capabilities to manage global payment contracts.

health plan designs must be changed to be consistent with the goals of reform. Right now, most consumers are given a health insurance card through their employer that entitles them to a vast array of choices, which often results in fragmented, uncoordinated care. To make ACOs work to coordinate care and contain costs, employers and insurers will need to partner with providers in the education of consumers. Consumers will need to truly understand the value of seeking their care within their ACO, and will need to understand that unlimited choices do not equal better, more cost-effective results.

Our medical system also performs other critical functions besides caring for individual patients, and those societal needs must be accounted for under a new payment system. Hospitals offer emergency and trauma services that may not fall neatly under a global, per-patient payment. A number of other services also don’t fit neatly into a global payment system. Some of these include training the next generation of physicians, performing life-saving clinical research, and providing a health care safety net for the uninsured and underinsured. We also need to protect services for special needs populations, such as those in need of behavioral health services. All of these services are vital, and we cherish our access to these aspects of our health care system — but we must understand that none of it is free.

How will this system look through a patient’s eyes? It is our hope that patients will get more coordinated and better care with a primary care provider to function as their health system navigator. They will get support for a healthy lifestyle and appropriate access to the world’s best tertiary care when they need it, along with the peace of mind that our health care system is ready for whatever emergencies and trauma befalls us. If payment and care delivery reform is conducted thoughtfully and prudently, we will succeed in containing costs and, most important, providing even better care.

Ellen Zane is the president and CEO of Tufts Medical Center and chair of the Massachusetts Hospital Association (MHA) Board of Trustees. Lynn Nicholas is the president and CEO of MHA and served on the state’s 10-member Special Commission on the Health Care Payment System.

Pay for quality, not quantity

Pay for quality, not quantity

Global payments can keep health costs from spiraling out of control

it is clear in 2009 that fee-for-service medicine is not the most efficient or effective payment system we can devise. It should be pretty obvious to almost everyone, even those who benefit from the current system, that this form of payment hinders patients from receiving coordinated and patient-centered health care.

Massachusetts can and should take an important step to correct the current system by adopting what the Special Commission on Payment Reform recommended last July — a system of “global payments.” With global payments, providers receive prospective payments for all or most of the covered care they provide, along with financial rewards for providing accessible and high quality care.

As a practicing internist and cardiologist for 34 years, and more recently as the chief executive officer of Harvard Vanguard Medical Associates and Atrius Health, I have worked under a global payment system successfully for my whole career. Our organization knows how global payments can improve patient care and keep costs from spiraling out of control, and it is actively working with payers to convert more of our business to global payments.

Most care today is delivered on a “fee-for-service” basis, with providers reimbursed for each individual service, often irrespective of its medical appropriateness. Sadly, this system is fundamentally responsive to economic incentives. It tends to drive health care costs up because it creates incentives to increase the volume of services and pursue business lines that are most profitable and oriented toward illness rather than health maintenance. This shifts focus from primary care to specialty care and from the ambulatory setting into the more expensive setting of the hospital.

As a result, we’ve developed an exceedingly sophisticated yet tangled system of “sick care” — caring for people once they are sick. What we need to do is flip this sick-care system on its head to create an actual system of health care.

When you mention global payments, many recall earlier versions of managed care and assume that setting fixed payments will mean that care will be denied. It’s important to note that we’ve come a long way from the hugely unpopular capitation plans of the 1990s, when many doctors across the country were asked to accept fixed annual payments for each patient under their care. Then, the resources provided to physicians were not always well-matched to the care that was needed by their patients. Today, we have the computational tools necessary to fix the health care system to pay for the quality of care, not the quantity of care.

here’s how global payments work today: First, providers and insurers look back at the actual medical cost history of patients to estimate what future medical expenses will be across different care settings. Payments are then risk adjusted each year to account for likely variations in health status and cost of treatment for the provider’s patient population.

Proper risk adjustment is essential to ensure fair and adequate compensation for providers while removing any financial incentive to avoid high-cost patients. Typical risk factors include age, sex, and geography. More sophisticated models now include adjustments for the health of the patients, too. For example, the payment for a healthy 25-year-old male might be $150 per month, while the payment for an older patient with a chronic condition like congestive heart failure could be in the thousands of dollars.

In contrast to prior managed care contracts, today it is critical to create a link between quality and payment through performance incentives. There are many more accepted measures for performance today that can be compared across providers and shared with consumers. Patients won’t be denied care they need because there is a greater reward for quality and improvement outcomes.

With electronic medical records, we have data to identify and do outreach to the patients who need extra care. The data also allows providers to identify where global payments will allow for infrastructure improvements such as clinical pharmacists, care management programs, and hospitalists who can provide care before health problems escalate.

We also understand that working to keep people healthy is critical to reducing costs and requires services beyond the physician’s office. For example, think about how physicians can provide care under a global payment system in the case of a patient we’ll call Steve Johnson, a middle-aged executive with a history of obesity, hypertension, and elevated cholesterol, who barely has time to see his new primary care physician. At the initial evaluation, Mr. Johnson is prescribed medication to help manage his hypertension and consults a health coach to develop an individual program to control his weight and cholesterol. Through an Internet portal, Mr. Johnson can check lab results and email his physician with questions about the new medication’s side effects. The health coach is also monitoring his progress and will call to check in and help reschedule missed appointments.

Working to keep people healthy is critical to reducing costs and requires services beyond the physician’s office.

This kind of coordination creates the support network Mr. Johnson needs to stick with his new regimen and meet his weight-loss goals. Without it, Mr. Johnson would play phone tag to get answers about medication and to reschedule follow-up appointments. Even worse, he might stop taking his medications or make an unnecessary visit to the emergency room. Without support, Mr. Johnson will likely revert to his old habits without any appreciable improvement in health — a path that leads to more serious illness and more expensive care.

A payment system that rewards focusing on the patient and putting the primary care physician at the heart of care will ultimately rebalance the health care economy and lead to lower-cost, higher-quality health outcomes.

because we are fully committed to moving forward under a global payment system, and because we know that will mean coordinating care from the physician’s office to the hospital and back, we have just announced that Atrius Health is partnering with Beth Israel Deaconess Medical Center to develop a new integrated delivery model of care.

Within Atrius Health, we have known for 40 years that integrated delivery is the right way to provide care, and we’ll continue to do what we know is best for our patients.

History has a habit of repeating itself. We expect the debate on payment reform to continue as it has for generations. All the way back in 1933, a presidential committee charged with finding a way to address the rapidly increasing growth of health care expenditures (then 4 percent of GDP) concluded: “Medical service should be more largely furnished by groups of physicians and related practitioners, so organized as to maintain high standards of care, and to retain the personal relationship between patients and physicians.”

To paraphrase T. S. Eliot, nearly 80 years later we find ourselves where we started and know that place for the first time. Now we need to take the next steps toward integrated care delivery under a global payment system.

Dr. Gene Lindsey is chief executive officer of Harvard Vanguard Medical Associates and Atrius Health.




Who doesn’t want to believe that teachers matter? It makes intuitive sense. It’s what any good teacher knows instinctively. And now there’s mounting evidence to support the notion that the quality of teaching in the classroom impacts the performance and engagement of the students in that classroom. But as Michael Jonas describes so well (“Teacher Test,” CW, Fall ’09), there’s little evidence that our current methods of evaluating and rewarding teachers are helping us to identify, much less encourage and nurture, those skills and behaviors that make teachers matter.

For the sake of the 1 million schoolchildren in Massachusetts, and especially for the 10,000 children who drop out of school each year, we need to connect the dots. Identifying and encouraging teaching practices that will rescue more of our children from failure should be our top priority. This is a priority all of us must embrace — teachers, parents, and the community at large. But it means setting aside entrenched interests, outdated objections, and plain old fear of change.

One common objection is distrust of a single measure of teacher performance, especially one that is highly correlated with a number of other factors beyond the classroom. This is simply a red herring; no one is seriously proposing that student test scores form the sole basis for teacher evaluation. But to suggest that student performance has no place in the evaluation of teachers sounds like throwing the baby out with the bathwater.

Entrenched seniority rules and traditional career ladders all stand to lose from any new system of teacher evaluation. But the profession has everything to gain in the long term — encouraging young teachers, identifying and nurturing excellence in teaching, and improving student achievement.

Right now, we have an unprecedented opportunity to make the connection between teacher evaluation, teacher quality, and improved student outcomes. Federal funds are available for willing states and districts. Massachusetts’s new student growth model now lets us look at test data over time and compare academic improvement between similar cohorts of students. We can now identify statistically significant variations in student performance growth from one year to the next — and that can tell us where to shine a bright light to learn what works in the classroom.

Yes, teachers matter. It’s time we started evaluating how and why they matter. Our kids are counting on us.

Leslie Nicholson
Executive director
Stand for Children


Michael Jonas’s article turns the focus of talking about improving student achievement exactly where it needs to be, on teaching. Having worked in public schools for 40 years, I believe that there are few things that we really control in public schools. Among them are who we allow to cross the threshold of a classroom as teacher and who we select to run schools as principals. Both decisions are absolutely essential to student success.

For more 30 years we have known about teacher behaviors that have been shown to be clearly related to improving student achievement. What is mind-boggling is how little we use that information in teacher evaluation. While teacher evaluations should consider improvements in student achievement, the hard part is finding consistent, valid, and reliable measures of student achievement across content areas.

Teacher quality is much more than certification. A teacher can be certified with paper credentials yet not really be able to effectively teach in the classroom. In some cases the issue has to do with a lack of effective teaching skills or knowledge of subject matter; in others it may be a lack of desire to teach or a lack of comfort with students.

In measuring the effectiveness of teachers and schools, Jonas’s article also makes important points about Eric Hanushek’s work and “value added” research on teaching. But a fundamental error that people made with studies on educational inequality is in equating a correlation with cause and effect. Put simply, your momma doesn’t have to have a master’s degree for you to do well in school. Certainly, family background can have an impact on students’ preparation for school. But we make a real error when we equate parental educational and income with a student’s capacity to do well in school.

Schools can and do make a difference. In his landmark study in 1979, Ron Edmonds identified the qualities of effective urban schools that hold true to this day. We must turn our attention to spreading effective teaching and raising expectations of students and staff so that many more students acquire the skills and knowledge to do well in school and graduate.

Nicholas A. Fischer
New London Public Schools
New London, Connecticut


Thank you, Edward Moscovitch (“Ed Reform Erosion,” Perspectives). I’ve been waiting for someone to speak the truth about the claims from this administration that school funding has been “held harmless.” In addition, I’m appalled that this administration continues to recycle education ideas that are not supported by available, up-to-date research. They consider easy/trendy ideas to be education reform (charter schools, high-stakes testing, etc.). What makes all of this so egregious is that our children continue to suffer under these political policies. I yearn for the time when educators and education are truly valued. Perhaps I should move to Finland. They understand it there.

Sondra H. Peskoe


While regrettable, the plagiarism epidemic that Colman Herman’s article “Term Paper Trafficking” describes is arguably a rational response to education becoming an economic investment, and to its long and winding journey from its roots in rhetoric. We evaluate students by their papers in part because it’s cost-efficient, requiring far less face time (or none) on the part of faculty. But we pay a price in the depersonalization of education when we divorce learning from human interaction. After all, it’s pretty hard to fake it when solving a physics problem at the blackboard or debating the merits of, say, physician-assisted suicide with an audience of one’s peers. Interestingly, the work world hasn’t lost sight of the value of interpersonal interactions: A recent survey showed prospective employers caring little about one’s academic credentials and much more about personal references.

Joshua Roth
Physics teacher
Winchester High School

Hail to the chief

Hail to the chief

Supreme Judicial Court Chief Justice Margaret Marshall says funding the state court system properly is not a choice but a constitutional mandate

Margaret Marshall ushers me down a series of hallways, turning on lights as she goes. It’s nearly 5 p.m. on the 10th anniversary of her appointment as chief justice of the Massachusetts Supreme Judicial Court, and Marshall wants to show me the consultation room where she and her six colleagues deliberate. It’s a large wood-paneled room with a fireplace on one wall and a long table down the middle, the same table that Marshall’s predecessor, Oliver Wendell Holmes, used for such meetings 100 years ago. Papers are arranged in seven neat piles for the next day’s monthly gathering of the justices. Marshall sits at the head of the table and the other six justices, arranged by seniority, sit along the sides. Like a mother hen, Marshall recites the name of each justice and where they sit until she comes to the court’s newest addition, Justice Ralph Gants. She calls him “the baby judge.”

Traditions are carefully observed when the justices meet, Marshall says. No food, drinks, or aides are allowed in the room. Justices address each other using their titles; first names are forbidden. The justices also dress appropriately. Marshall recalls telling one newcomer to the bench to put on a coat and tie after he came to the meeting dressed casually. As Marshall tells these anecdotes of court life, her pride in the court and its history is evident.

But the job of chief justice is more than writing judicial opinions on some of the most important issues facing the state. She also oversees the entire Trial Court, and she is worried that budget cuts here in Massachusetts and across the country are plunging state court systems into crisis. In a speech to the New York City Bar Association in November, Marshall said state courts handle 97 percent of all litigation in the United States yet are at “the tipping point of dysfunction.” She says many state courts are forced to offer “turnstile justice” in the face of shrinking resources and rising case loads, although she tells me that’s not happening yet in Massachusetts.

As we sit down to chat in the sitting room outside her office, Marshall, whose opinions and speeches are clearly and beautifully written, confesses she has a tendency to meander during interviews. She offers to condense answers by email if her answers go on too long during our interview. I didn’t take her up on the offer, but I did discard chunks of the interview and rearranged the order of some questions to make it flow more smoothly. What follows is an edited transcript of our conversation. Excerpts will also be available on CommonWealth’s website.

Commonwealth: One of your chief concerns is that state court systems don’t have a seat at the table when budget cuts are being made, that lawmakers treat the courts like just another state agency instead of a coequal branch of government. Is that intentional?

Marshall: I don’t think that they intend to treat us like another state agency, but the point I try to make as frequently and as loudly as I can is that we’re not a public policy option. I do not want to close day care centers. I do not want to find that people with substance abuse problems cannot get access to treatment programs. That is part of the safety net that we would hope to provide to all citizens. But those are choices that the Legislature has to make. Whether to keep the judicial branch functioning is not a choice; it’s a constitutional mandate. The Massachusetts Constitution is the oldest written constitution in the world still being enforced. In that constitution, it calls for an impartial interpretation of the laws and administration of justice. I cannot say to the people of Pittsfield, “Sorry, we’re not going to have a courthouse out there, you’re going to have to travel to Boston.”

CW: Traveling from Pittsfield to Boston is an extreme example, but Massachusetts has more than 100 courthouses. Couldn’t some of them be consolidated?

marshall: One could collapse certain courthouses, although one of the strengths of the Commonwealth’s delivery of justice is that you don’t have to own a car. Are there ways that we might have to streamline? Yes. But it’s not easy and I would think we’d want to do that as a last resort.

cw: Your budget has already dropped by $50 million this year. If state revenues continue to slump and more budget cuts are needed, what will happen to the state court system?

marshall: It will not be possible to deliver justice in the way that the constitution requires with those kinds of cuts. Chief Justice for Administration and Management Robert Mulligan and I have spent all of the last year trying to eliminate from the judicial budget all pieces that are not core functions of the judiciary. For example, alternative dispute resolution is one of the most successful ways to resolve disputes, especially civil disputes, in a way that is the least costly and with the greatest satisfaction for litigants. But we eliminated all of our alternative dispute resolution programs. I didn’t like doing that. I don’t think it’s a good policy to do that. But it is, from my point of view, a public policy choice. We eliminated almost all guardians ad litem, who play a crucial function, especially with children and the elderly, in terms of making sure that someone is in there representing their views. We’ve cut back on court stenographers and are using recording devices. Chief Justice Mulligan has many of our court buildings in leased facilities. He has renegotiated almost all of those leases. We have tried everywhere that we possibly can to cut back. We’re already down close to 600 people since July 2008. That’s a large number of people who have left. There has not been one person hired in the Trial Court Department since October 1, 2008 — in fact, March 2008, because we saw the signs coming.

cw: Other state court systems are shutting down one day a month. Will that happen in Massachusetts, too?

marshall: I hope not. I think there’s a recognition by the governor and the Legislature that that would be a devastating blow to the judicial branch. I don’t know of any occasion in the history of the Commonwealth where that has happened, and we’ve been through some tough times before. …For me, because I grew up in a country [South Africa] that had no system of justice, I am passionate about having a justice system that works.

cw: Do you think the court system should receive a dedicated revenue stream, much like the MBTA does?

marshall: What you’re really looking for is stability. There are, in fact, a lot of discussions about whether there should be a minimum percentage of a state budget that should be allocated to the judicial branch without a debate over it. It sounds good on paper. But this is my view: The Legislature is charged with the business of raising taxes and appropriating money. I enjoy my discussions with the Legislature, helping them to understand what I need to deliver justice. Of course I would feel more comfortable if there was some formula that said if you have umpety-ump number of cases in the system, we will ensure that you have a minimum amount of money and then we can talk about add-ons. But I don’t think that’s how it really works in a democratic process.

cw: What do you want then?

marshall: I have asked for full transferability of all funds within the judicial budget in any given year. That does not mean that I’m asking for a blank check. What it means is, I go to the Legislature and say, “I have this number of judges, etc. I would like you to appropriate adequate funds. But if there is a crisis of some kind, I would like to be able to move funds around. When I come to you next year, I’m going to have to explain why I moved funds around.” That’s the kind of independence that I think would be most helpful. If I were an elected representative, I think I would want to know how money allocated to the judicial branch is being spent — for example in connection with my courthouse. I have made transparency and accountability hallmarks of my administration as chief justice in part because when I first became the chief justice, a regular complaint I heard from legislators — and I considered them legitimate complaints — is “we can never get a straight answer.” For example, does the Boston Municipal Court have too many employees and the Springfield District Court too few? My answer was always, “I don’t know.” That was my answer in 2001 and 2002. I can now answer that question. I have moved from management by anecdote to management by data.

cw: How did you move to management by data?

marshall: I became the chief justice in 1999, and we hit our first serious downturn just a couple of years later. It was apparent to me quite quickly that during my tenure as the chief justice, which goes until I reach age 70, I would probably face a number of economic downturns. None has been as serious as the one that we are presently in, but it was clear to me that this was a recycling occurrence. Part of what I tried to do is to make sure that when I faced the next economic downturn, I had in place the data and the mechanisms to deal with it most effectively. That is one of the reasons why I, with the justices, invited this independent group of business experts [the Court Management Advisory Board] to come in and say how we can deliver [justice] in a more efficient way. I saw that we’d have fewer and fewer resources, and yet I have a constitutional obligation to make sure the court houses are kept open.

cw: What did the data show?

marshall: How many people it takes to process cases. Through the National Center for State Courts, we use the most sophisticated analysis that’s available to go into every courtroom and say, if you have an uncontested divorce with no children and no property, how many people does it take to process that case? I can now go on any single day into any courthouse in Brockton or Pittsfield or Fall River or Marblehead and look at how many cases are coming in the door, what kind of cases they are, and how many people I need to process them. Chief Justice Mulligan has said all along, and I agree with him, that we don’t want staffing at the 100 percent level, that we want to be reaching so that our judicial staff and our judges have enough resources but not an abundance of resources. We estimate about 90 percent of staffing level. The Land Court is now 40-something percent. We can see in different courthouses — particularly in the probate and family courts, where there has been a huge increase in the number of cases, and in the district court — that we’re way below staffing models. It will come as no surprise that the delivery of justice is very people-intensive. Technology can do so much. Buildings can do so much. But basically it’s a people-driven business. So focusing on the staffing models gave me the very first way to determine when we are headed into crisis.

cw: You have tried to become more scientific about allocating resources, but it seems like the Legislature wants to micromanage the courts by directing funds to specific courts and specific projects.

marshall: No, they don’t want to micromanage. We have far fewer line items. They’ve given us significant transferability. I think there’s a difference between saying you want to micromanage and you want accountability.

cw: So progress is being made in giving court officials more control over their budgets?

MARSHALL: Absolutely. It’s a two-way discussion. It’s a recognition that the Legislature wasn’t doing this out of some kind of pique. If the Legislature couldn’t find out exactly how the dollars are being spent, of course they are going to micromanage it and make sure they are spent in a certain kind of way.

cw: It seems like the probation system is one area where data isn’t driving decisions. Michael Keating, the head of your Court Management Advisory Board, tells me his group was studying the courts and discovered that costs were rising and caseloads were falling or holding steady. He says the group couldn’t figure out why until it looked at probation, which accounts for a quarter of the Trial Court budget. They discovered that from FY05 to FY08 the probation caseload went up 2 percent, its employee level rose 10 percent, and its budget increased 17 percent. Also, the Legislature doesn’t allow you to transfer funds out of probation in times of crisis and gives you little control over hiring there.

marshall: First, I don’t know all of Mike’s data because I haven’t seen those data. It may be that the cases have declined. I don’t know if the nature of the cases has changed. I do know that the Legislature has enacted statutes that require far more extensive monitoring of certain categories of people. There has not been full transferability, and I would say that it would be helpful to have full transferability in any given year so that when there are shortfalls we can move money around to address the critical needs. I do not know whether or not we would have moved money out of probation because the services that probation provides are critical for our judicial branch.

cw: You’ve said transparency and accountability are hallmarks of your tenure as chief justice. Yet the probation system, from the outside, seems like a closed system. It’s hard for someone like me to get data on how money is being spent there.

marshall: I can’t respond to that. When I talk about transparency, I’m talking about how many people are employed, what’s the caseload.

cw: You obviously have that information for the courts, but do you have that for probation?

marshall: Certainly, how many people are employed. Absolutely.

cw: But do you have the level of detail you have on the rest of the court system? For example, can you tell whether probation is overstaffed or understaffed?

marshall: When we did the staffing model for the processing of cases, the same study was not done for the processing of probation. Of course I’m aware of the concerns that are expressed, but if your question is, is there some way that I can’t get access to data, the answer to that is no.

cw: Let’s shift from the operation of the Trial Court to the SJC itself. You’ve been chief justice for 10 years. Is there such a thing as the Marshall Court?

marshall: No, I don’t think there is. Let me try to answer it this way. This court has been in existence since 1692. When I became the chief justice in 1999, I had served for three years as a judge. As I came on, I faced a seismic shift in the court [due to judicial retirements]. We became almost overnight a very, very young court. I saw as my first and most important function establishing this new court as a collegial cooperative court that delivered judicial opinions of the highest, highest quality. I would hope that when people look at the Supreme Judicial Court, they say this is a great state court. If that is in fact the reputation of the court, and I think it is, it is because of the hard work of the colleagues who have worked with me. Melding this court into a wonderful place that lawyers and judges and the public respect has been one of my priorities.

cw: How do you build collegiality?

marshall: That’s an interesting and difficult question. One of the things we’ve tried to do is not to try to get everybody on to the same position. In other words, if a justice wants to dissent from a position, I never try to change their mind. But what I do try to do is make sure that the majority of the court writes with one voice and the dissenting justice or justices write with one voice.

cw: How does the court craft its opinions?

marshall: I can tell you some of my best prose has hit the cutting room floor because one of my colleagues has said, “I’ll go with you but I’m not going to sign on to this piece.” You have to move your independence to one side, so to speak, and try to reach accommodation with your colleagues. We have a tradition at this court — and it’s one that I strongly support — that, by and large, we only talk collectively. We only discuss drafts together when we’re all sitting around the table, all seven of us. Now, sometimes, if there’s a justice who has a particular expertise in an area and I’ve got a little troublesome issue in a case, I may go to that justice and say, “Help me think through this.” There are those kinds of side discussions, but, in general, immediately after oral argument we all sit down together and discuss the cases argued that day. I then assign the case to one of the justices to write a draft opinion, and the process of what I call “almost joint writing” begins. Somebody prepares a draft and it gets circulated at the same time to everybody, and we sit around the table once a month [to go over opinions].

If you look on my desk, that pile is all draft opinions. I will have read them all. I will have made notes and comments. And we will go around the table in order of seniority. Justice Ireland, Justice Spina, Justice Cowin, Justice Cordy, Justice Botsford, Justice Gants. And everybody will comment. The comments will range from what we call little nits — just editorial things — to very helpful organizational things to real disagreements on particular language or a holding, whatever it is. I have seen cases that have changed, where the dissent has persuaded a majority of the justices to go the way of the dissent. Not often.

cw: The US Supreme Court has ideological factions. Does the SJC?

marshall: The names [of justices on majority and dissenting opinions] change all the time. I never know where my colleagues are going to come out, which is part of the fun. It doesn’t matter if it’s a civil case, a criminal case, or a domestic case, I never know who I’m going to persuade to be with me or who I’m going to agree with. I don’t think there’s anybody on this court who is pro law enforcement, or pro press, or pro management. You just don’t know.

cw: There really are no ideological splits?

marshall: The Massachusetts Constitution, which was the model for the federal Constitution, gives the governor the right to nominate anybody that the governor chooses to any judicial position. As a practical matter, since Gov. Francis Sargent, every governor has used what is in effect a merit selection panel by executive order. It’s not required by the constitution. It’s almost impossible to tell whether a justice has been appointed to the court by a Republican governor or Democratic governor based on the decisions. [Marshall was appointed to the court by Gov. William Weld and named the chief by Gov. Paul Cellucci.]

cw: Do governors ever ask you for your opinion on whom to appoint?

marshall: Yes, and I never tell them. Never.

cw: Do they all ask you?

marshall: The governor’s legal counsel may ask me my views on particular people. If I have them, I’m happy to express them. But I always wait to be asked. With appointments to this court, I have always taken the view that that is absolutely the governor’s choice. I do not want to be suggesting Candidate A rather than Candidate B and then getting Candidate B. I just think that would be very awkward.

cw: In one of your recent speeches, you talked about the Quock Walker case, in which the SJC ruled some 90 years before the Civil War that slavery violated the Massachusetts Constitution. Do you think that your ruling on same-sex marriage will be looked back on as equally momentous?

marshall: I don’t know the answer to that. I also don’t know if there are other cases that, when the history is written, people will say that was a groundbreaking case. But the slavery case was obvious. It was such a marked shift.

cw: And you don’t think your ruling that the Massachusetts Constitution allows same-sex marriages represents a similar marked shift?

marshall: I don’t think or not think. History just has to play itself out.

cw: Are you following what’s been going on in California, Maine, and New York, where opponents of same-sex marriage have scored victories at the ballot box or in the legislature?

marshall: It’s still very alive, but so are lots of other issues. I’m not trying to be cute. Of course when you say you want to talk about a case, I know [which one] you’re talking about. I don’t get quoted in the Economist every single day because of my various cases. One recognizes that something is a groundbreaking case. How history will view it is a very, very different question.

cw: What other cases would you consider to be groundbreaking?

marshall: I would say, from the Legislature’s point of view, perhaps the court’s decision on the Clean Elections Law garnered more headlines at the time. [In 2002, the SJC ordered the Legislature to either fund the law — a public financing system passed by the voters in 1998 — or formally repeal it. Lawmakers eventually chose to do the latter.] The whole idea of publicly funded elections was a very, very important issue at the time. I don’t know what’s happened to the debate, but certainly how we fund our elections and who’s available to run for office is not something that’s disappeared. I also think that new families — new not only because you’ve got many more divorces and remarriages, but also biologically new families — raises just a whole host of questions.

One of the other cases that we had, which I think is going to be a very important decision, is whether or not would-be legal parents, before the child is born to a surrogate mother, can obtain a judicial order that they be listed on the birth certificate. [Yes, according to the ruling in the 2004 case, Hodas v. Morin.] From the hospital’s point of view, the mother is the mother. Let’s assume the child is in crisis when it’s born, who is going to make the decisions? I can’t even remember whether that was reported in the newspaper, but when you talk about the lives of many people being affected, we know that in vitro fertilization and the whole science developed in respect to that is a new and growing field.

cw: Do you write all your own opinions?

marshall: Yes. I have wonderful law clerks. They do a lot of hard work for me. But I love to write. It’s a great reason to be an appellate judge.

cw: Anything else?

marshall: You mentioned the Quock Walker case. It was the first case decided by this court under [the state’s new] constitution, and [it put] an end to slavery. When I was growing up in South Africa, I didn’t know a great deal about the United States. I didn’t have any legal training. I never thought I’d be a lawyer. I never thought I’d be a judge. I never thought I’d live in the United States. But I did know two things. I did know about the Supreme Judicial Court and its decision in that case and I did know about Brown vs. Board of Education. Growing up under the apartheid system and, as passionately committed as I was against that system and in favor of racial equality, those are two big markers on the road to full human dignity for all people.

For me, to serve on this court is a remarkable privilege. It also is, I hope, a tribute to what has made this such a great country, that I could come with no connections, alone, no legal training, and start practicing law in Boston and find myself as the chief justice. [It] is a remarkable statement for any society. I try to make that point when I look at young people who are going to law school for the first time. You really can become anything. For those born in the United States, they may take that for granted because we have so many examples around us. I never take it for granted.

Teen use of smokeless tobacco leads to call for tax increase

Teen use of smokeless tobacco leads to call for tax increase

when state lawmakers increased the tax on cigarettes two years ago by $1 per pack, it was a good move, but they didn’t finish the job, say anti-tobacco activists and their legislative allies.

Unlike the three previous tax increases on cigarettes, the 2008 measure didn’t include similar-size increases on chewing tobacco, other smokeless tobacco products, or packets of loose-leaf “roll-your-own” tobacco. As a result, say anti-tobacco activists, the state is leaving more than $10 million in easy tax money on the table and missing an opportunity to drive down tobacco use, particularly among young people whose habits are sensitive to even small price increases.

State Rep. Jonathan Hecht is pushing legislation that would address what he and public health advocates call an oversight in the 2008 tax hike. A bill Hecht filed last year would raise the tax on other tobacco products to a level that is comparable to the cigarette tax. Hecht’s approach would increase taxes on these products so they equal 110 percent of their wholesale cost, which is what the current state tax of $2.51 on a pack of cigarettes corresponds to. Hecht calculates that the increase would yield $10.5 million in new tax revenue per year, a portion of which he’d like to see dedicated to tobacco control programs.

“This is the right thing to do to keep kids from being addicted, and to create a revenue stream to help programs for those who want to break their addiction,” says Hecht, a Watertown Democrat.

Hecht and anti-tobacco activists are particularly concerned about an explosion of various smokeless tobacco products that they say are being targeted at young people. US Smokeless Tobacco, which sells Copenhagen and Skoal chewing tobacco, and R.J. Reynolds have begun marketing a product known as “snus,” a spit-free form of smokeless tobacco sold in small pouches similar to tea bags, which users tuck under their lip. And last year, R.J. Reynolds began selling Camel Orbs, tablet-sized dissolvable jolts of tobacco.

“They look like Tic Tacs,” says Russet Morrow Breslau, executive director of Tobacco Free Mass, a coalition of anti-tobacco organizations. “So if you’re a kid sitting in geometry class, you could be sucking on these lozenges or sucking on these tea bags and you could get hooked.”

The use of smokeless tobacco among US 10th- and 12th-graders increased from 2006 to 2009, according a December report from Monitoring the Future, an ongoing survey of habits and attitudes of secondary school students and young adults, sponsored by the National Institute on Drug Abuse.

David Sutton, a spokesman for Altria, the parent company of Phillip Morris and US Smokeless Tobacco, says “underage access to tobacco products is something we’re vehemently opposed to,” and he denies that any marketing is done with underage users in mind. As for the proposed Massachusetts tax increase, he says Altria opposes raising levies on adult consumers and believes that stricter enforcement of laws prohibiting retail sales to minors is the best way to prevent young people from gaining access to the tobacco products.

The bill to increase taxes on non-cigarette tobacco products didn’t make it out of the Legislature’s Joint Committee on Revenue last year. Hecht is hoping the bill will gain traction in the new year. “It’s a fix of an omission,” he says.

Breslau says there is broad public support for the tax hike. In a March 2009 survey of 502 likely Massachusetts commissioned by Smoke Free Mass, 81 percent supported taxing other tobacco products at the same rate as cigarettes.

But passing any new tax, even on something as socially shunned as tobacco, is never easy, and advocates may find that is especially true heading into an election year.

Probation head responds to reports of excessive spending

Some see a haven for patronage

john j. o’brien, the reclusive state commissioner of probation, is coming out of his shell.

Faced with two reports suggesting that spending at his agency is excessive, O’Brien is suddenly talking. Well, not talking exactly, but sending out emails and letters through his spokeswoman denying many of the accusations and suggesting that his agency is actually understaffed.

In one email, O’Brien says the ratio of offenders to probation officers in his department is 167 to 1. Even excluding less involved administrative cases, O’Brien says, the ratio is 103 to 1, well above the caseloads recommended by the American Probation and Parole Association.

O’Brien also boasts that his agency is bringing in $23 million in annual probation supervision fees, requiring offenders to do $377,000 of community service work each month, and running an electronic monitoring program that is saving the state $80 million a year.

It’s a far cry from his agency’s usual response to requests for information, which is to ignore them.

The probation department has been under fire. Problems started in early December when a former accounting clerk at the Lawrence District Court’s branch of the probation department was arrested for allegedly stealing $2 million over three years. Then came reports by two different groups indicating that probation spending is rising at a much faster pace than outlays for other corrections divisions and court units. Probation is a corrections agency but is located administratively within the state’s Trial Court. Some officials in the state’s correction system would like to move probation into the executive branch. Patrick administration officials declined comment.

The two probation reports did not speculate about the cause of the agency’s budget growth, but the department is widely viewed on Beacon Hill as a patronage haven for the Legislature. The wives of Reps. Thomas Petrolati and Michael Costello, both members of House Speaker Robert DeLeo’s leadership team, work for the department, as does the son of former Senate President William Bulger.

Like most other parts of state government, probation has seen its budget cut in the past two years. But lawmakers have repeatedly softened the blow by overriding vetoes of probation spending by Gov. Deval Patrick, giving the department special appropriations, and insulating the agency from cuts by court officials. The Legislature, for example, gave probation $4.5 million last October to stave off layoffs.

The Court Management Advisory Board, a group of businesspeople working on a broad review of the trial court system, discovered that probation spending was out of whack compared to the rest of the court system. Board data obtained by CommonWealth indicate that the caseload of probation increased only 2 percent between fiscal year 2005 and fiscal year 2008, while spending went up 17 percent. The data also show the number of probation workers increased 10 percent between July 2005 and July 2008, rising from 2,005 to 2,200.

Michael Keating, who heads the advisory board, confirmed that the numbers are accurate. He said the probation budget’s growth was distorting the overall Trial Court budget and raised questions about the Legislature’s decision to insulate probation from court supervision. To help court officials manage budget cuts, the Legislature last year gave the officials the power to transfer funds between court accounts. But lawmakers specifically exempted probation from that directive. The Legislature has also limited the power of court officials to control probation hiring.

“From a management point of view, to take an important part of what has been designated a judicial function and insulate it from the person running the Trial Court doesn’t make any sense,” Keating said. “It’s bad management. It’s one of the things that has to be corrected.”

In an interview with CommonWealth, Margaret Marshall (also see Conversation, Page 76), chief justice of the Supreme Judicial Court, said the ability to transfer funds between accounts within the court budget is needed. She said she didn’t know whether funds would be transferred out of probation if court officials had that power.

Probation spending also surfaced in a report issued by The Boston Foundation last month on the rising cost of the state’s corrections system. The report said corrections spending overall had risen faster in Massachusetts than the budgets of almost any other state service. It said the Department of Correction budget, adjusted for inflation, had increased more than 12 percent between 1998 and 2008, while the county sheriffs’ budget went up 20 percent. Probation, the report said, went up 163 percent.

O’Brien, in his emails and letters, called the 163 percent figure “wildly inaccurate.” He said the Boston Foundation report compares 1998, when probation spending was marbled into line items for each court, to 2008, when spending was consolidated under his control.

“Simply put, the comparison of the FY1998 probation budget to the FY2010 budget is to compare apples to oranges,” O’Brien wrote.

Leonard W. Engel, a senior policy analyst at the Crime and Justice Institute and the author of the Boston Foundation report, said he tried to adjust for the budgetary changes by reducing the actual FY2008 number by $85.6 million to reflect the money earlier contained in court budgets. Engel said he was startled at the increase but checked the figures repeatedly and believes they are accurate.

O’Brien did not address the Court Management Advisory Board’s numbers directly, other than to say that part of the increase in spending can be attributed to the $2 million approved for the electronic monitoring of offenders using a global positioning system. He said the annual cost of electronic monitoring an offender is $3,380, compared with incarceration costs of $48,000. He called the system the most comprehensive in the nation, covering 1,800 offenders and saving the corrections system more than $80 million.

O’Brien also said his agency collects $23 million in probation supervision fees, up from $6 million in 1998, and has offenders perform 52,000 hours of community service work each month, which he valued at the minimum wage of $7.25 an hour, or $377,000.

Four-day week deemed a success

Four-day week deemed a success

A yearlong Utah experiment with a four-day work week for state employees has ended with a positive verdict, even as its goals changed along the way.

In August 2008, then-Gov. Jon Huntsman (now US ambassador to China) issued an executive order changing the operating hours of state agencies. Offices were shuttered on Fridays and stayed open for 10 hours, rather than eight, on the other four days. The governor’s primary interest was lowering energy costs, says Mike Hansen, a strategic planning manager in the executive branch. (See Perspectives, CW, Summer ’09.)

Energy consumption did decline by 10 percent during the yearlong pilot program, but cost savings were lower than projected. The state saw savings of $500,000 on energy, rather than the hoped-for $3 million, says Hansen. Another $200,000 was saved in operational costs.

Meanwhile, Utah’s leadership changed in the summer of 2009, and with a new governor came new priorities. According to Hansen, Gary Herbert (pictured) — who took office when Huntsman became an ambassador — was primarily interested in the customer-service angle of the experiment. A telephone survey found that 66 percent of Utah citizens liked the change — “they thought it was a good, forward-thinking initiative,” says Hansen — while 20 percent were indifferent.

Given the largely positive response, Hansen said Utah will continue its “4/10” model for the rest of Herbert’s term. He faces a special election in November 2010.

All aboard

Can the new Massachusetts transportation board get things moving?

Sen. Steven Baddour, the co-chair of the Legislature’s Joint Committee on Transportation, was ticked off. The five members of the new Massachusetts Department of Transportation board of directors had been invited to appear before a November oversight hearing called by the committee. Only one showed up. The Methuen Democrat made it clear he wasn’t happy. “I wish more of them were here this morning, so I could say this to their faces,” he said. The committee rescheduled the group for a December hearing. But less than 24 hours before that session was slated to begin, again only one board member had agreed to appear, leading frustrated lawmakers to postpone the hearing yet again.

Nonprofit shows results with troubled kids

Nonprofit shows results with troubled kids

where some see reason for despair, Matt Stone sees possibility.

Stone is the Massachusetts manager for Youth Villages, a nonprofit that aims to replace some residential services for troubled youth with intensive in-home counseling. Founded in Tennessee in 1986, Youth Villages expanded throughout the southeast and, in 2007, opened its first Bay State office. Stone and his team of social workers, most from out of state, started with five kids here and are now serving 40 clients as a contractor with the state. And he thinks a significant chunk of the 8,700 youths now placed outside their homes — in foster care, group homes, or other outside-the-home residential settings — might do better with Youth Villages or other in-home counseling services.

“We ask for the really hard cases, the ones no one else wants,” Stone says. “We tell them, ‘If you’ve already checked the residential box, give them to us instead.’”

The approach centers on intensive in-home counseling (at least three times a week) and on improving a youth’s total environment: family, school, and peer relationships. While Stone is quick to say that for some kids, residential services really are the only option — “it’s not safe for them to be at home” — he thinks taking a kid out of the home fails to address the environment that may have caused the problems in the first place. When the child leaves treatment, they may seem healthier, but once they’re back in their old surroundings, the old problems emerge.

The cost is $125 per child per day, while residential placement services can cost nearly three times as much. And the organization’s mission seems at one with the Department of Children and Families’ stated goal of keeping as many kids at home as possible: The current number of out-of-home placements, 8,700, represents a 14 percent decline since 2003.

Allen Grossman, a professor at Harvard Business School who wrote a 2008 case study of Youth Villages, says the organization’s focus on outcomes is essential to its success. Following every kid for two years after treatment ends allows Youth Villages to tell which practices are working and which are not. Nationally, two years after treatment, 80 percent of Youth Villages clients are living at home and attending school. Grossman says it’s hard to find comparative data for kids in state custody — most states, like Massachusetts, don’t track the effectiveness of all the dollars they spend on child services. But, according to academic studies, only 40 percent of kids in out-of-home treatment are faring as well as the Youth Villages clients two years later. Youth Villages, Grossman says, “is twice as effective.”

A spokeswoman for the Massachusetts’ Department of Children and Families says the state is beefing up its tracking procedures as part of new national regulations. In October 2010, the state will begin gathering data — such as financial self-sufficiency, housing, and educational status — on kids who have “aged out” of the system.