Commonwealth v. Kobrin

Citations: 479 N.E.2d 674; 395 Mass. 284; 1985 Mass. LEXIS 1586

Court: Massachusetts Supreme Judicial Court; July 2, 1985; Massachusetts; State Supreme Court

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Dr. Kennard C. Kobrin, a psychiatrist, was held in contempt by the Superior Court for failing to provide complete medical records to a grand jury investigating Medicaid fraud. He invoked the psychotherapist-patient privilege under G.L. c. 233, § 20B, arguing that he could not disclose communications pertaining to patient diagnosis and treatment. The grand jury's summons, issued on May 9, 1984, required all of Dr. Kobrin's appointment books and records related to his Medicaid patients. After consulting with his patients, 27 invoked their privilege against disclosure. Dr. Kobrin's motion to quash the summons was denied, and he was ordered to produce the records. Upon testifying before the grand jury on May 31, 1984, he provided only sanitized versions of patient charts, citing the privilege.

Subsequently, the Commonwealth sought civil contempt against him, which was granted, leading to his remand. Dr. Kobrin appealed, and a single justice of the Appeals Court allowed a stay of the contempt judgment, contingent upon his submission of the records by June 12, 1984, for impoundment. While the court mandated that all records be submitted, it required a plan to safeguard patient confidentiality. Dr. Kobrin proposed that the Commonwealth demonstrate a specific need for each record and ensure that the information could not be obtained through less intrusive means. The Supreme Judicial Court of Massachusetts ultimately vacated the contempt judgment and remanded the case to the Superior Court for further proceedings.

Dr. Kobrin proposed that the court release only a portion of patient records under strict confidentiality, which the Attorney General opposed. On June 26, 1984, a single justice of the Appeals Court allowed a motion from Dr. Kobrin's patients to assert the psychotherapist-patient privilege but ultimately rejected his proposal. The court ordered the release of one unedited copy of the disputed patient records to the Attorney General, requiring patient names to be redacted while maintaining a cross-reference list of names and Medicaid numbers. Subsequently, Dr. Kobrin appealed this disclosure order along with a contempt judgment from the Superior Court. 

On appeal, he argues that the psychotherapist-patient privilege under G.L.c. 233. 20B applies to psychiatric patients in the Medicaid program and that neither federal nor state legislation has eliminated this privilege. He contends that the communications between Medicaid patients and their psychiatrist are irrelevant to Medicaid fraud investigations and should be protected from disclosure. The Commonwealth counters that invoking the privilege would obstruct federal efforts to verify Medicaid service provision and claims that the federal Medicaid law and the privilege are in conflict, asserting that the privilege must yield under the supremacy clause of the Constitution. 

The Commonwealth acknowledges that while patient communications may be mixed with progress notes in the records, this should not allow Dr. Kobrin to evade the legal disclosure requirements. Both federal and state laws mandate that Medicaid providers like Dr. Kobrin maintain certain records for audits, requiring full disclosure of services provided and related information for payments claimed. G.L.c. 118E. 20 reinforces the need for proof of service delivery, while G.L.c. 233. 20B establishes the privilege protecting communications between patients and psychotherapists in legal contexts.

The statute characterizes 'communications' as encompassing all conversations, correspondence, actions, and records related to a patient's diagnosis or treatment, irrespective of the patient's awareness. In the context of investigating a psychiatrist for potential Medicaid fraud, two key policies emerge: the federal mandate for disclosing patient records to support fraud investigations, which is crucial for the viability of the Medicaid program, and the legislative recognition of the confidentiality expectations of individuals undergoing psychotherapy. The two policies are not seen as irreconcilable; rather, both the state's interest in preventing Medicaid fraud and the statute's confidentiality protections can coexist.

States have discretion in administering Medicaid, especially regarding documentation requirements. Federal law stipulates that Medicaid providers must maintain records sufficient to fully disclose the services rendered, and while the language of state legislation isn't identical to federal law, it reflects the intention to comply with federal standards. The Commonwealth can require psychiatrists to maintain and disclose records necessary for this purpose, but it does not support claims for unrestricted access to complete patient files. Previous cases cited by the Commonwealth do not justify a comprehensive breach of patient privacy, particularly concerning psychiatric records. The relevant case law indicates that while some medical records are subject to subpoena in fraud investigations, confidentiality mandates, such as those in G.L.c. 233. 20B, were not adequately addressed in those precedents.

The court determined that psychiatric records containing personal patient communications are not essential for verifying the legitimacy of services provided by a psychiatrist in a Medicaid fraud investigation. The focus should be on whether the psychiatrist accurately reported patient numbers, visit frequency, and session lengths, rather than on intimate patient details that do not aid in assessing reimbursable services. The Commonwealth acknowledged the patients' rights to confidentiality and recognized that privacy concerns should be considered when evaluating the relevance of documents in such investigations. While the production of some records is warranted for oversight of Medicaid funds, the disclosure must be limited to information necessary for this oversight, avoiding unnecessary invasion of privacy. Therefore, the Commonwealth can request certain records, such as appointment dates, lengths, fees, diagnoses, and treatment plans, while communications reflecting patients’ thoughts and feelings remain protected and need not be disclosed. The court emphasizes that any exception to the physician-patient privilege must be narrowly tailored to serve the public interest in properly managing Medicaid funds.

Psychiatrist records of patient conversations are to be withheld, with the judge permitted to provide the Commonwealth only a physical description of these notes without disclosing their content. The judge may indicate the existence of specific records, such as a one-page handwritten report from a session, but not the session's details. The contempt judgment and disclosure order from the single justice of the Appeals Court are vacated, and the matter is remanded to the Superior Court for a hearing regarding the redaction of Dr. Kobrin's records.

The Medicaid fraud control unit investigates using grand jury powers, referencing relevant case law. A subpoena sought extensive records related to the treatment and billing of Medicaid patients, including all associated documentation. Patients signed a form invoking their psychotherapist-patient privilege against producing medical records. Dr. Kobrin also requested additional time to contact patients and sought to redact non-Medicaid patient information from subpoenaed records.

The Commonwealth indicated that due to the ambiguity of a previous order, it has not submitted Dr. Kobrin's records to the grand jury, leaving unresolved issues. Dr. Kobrin's motion for protective orders regarding patient communications was denied. He has both the opportunity and incentive to assert patients' rights, which may not be effectively defended by the patients themselves. Therefore, Dr. Kobrin has standing to raise claims of privilege on behalf of his patients. Additionally, there are assertions that psychotherapist-patient communications are protected under the Federal right to privacy.

State law provides protective measures for certain communications, leading to the decision not to address federal constitutional issues. Each State Medicaid plan mandates service providers to maintain records detailing the services provided to recipients and to furnish this information upon request to relevant authorities, including the Medicaid agency and fraud control units. Specifically, Massachusetts regulations require providers to keep comprehensive records and supply information on payment claims. Psychiatrists are obligated to adhere to both general medical record regulations and specific psychiatric record requirements. 

The statute outlines six exceptions to the privilege of confidentiality, which are not relevant to the current case. The Commonwealth seeks to inspect Dr. Kobrin's records, which include appointment logs, billing statements, and patient charts, to verify billing practices for psychiatric services, without addressing the medical necessity of those services. Concerns are raised about the potential chilling effect on recordkeeping practices among psychiatrists due to the unrestricted access to these records by state officials, which could discourage detailed documentation of sensitive patient information. Ultimately, the conclusion is that certain types of therapy notations do not qualify as protected communications in Medicaid fraud investigations.

Somatic therapies encompass physical treatments, including medication and electroconvulsive therapy. The Massachusetts Psychiatric Society highlights that records of such physical services provided by both psychiatrists and nonpsychiatric medical doctors are more likely to be necessary for documenting Medicaid reimbursements compared to records of nonphysical therapy. Additionally, there is minimal need to disclose private communications in these cases. The Department of Public Welfare may consider revising its regulations on documenting psychiatric services to ensure consistency, potentially requiring psychiatrists to maintain separate records of therapy sessions from those subject to subpoena. Notations that may be disclosed include symptoms like sleep disturbances, anergia, impaired concentration, hopelessness, anxiety, dissociative states, hallucinations, affective changes, and somatic symptoms such as headaches. This list is not exhaustive. Furthermore, objective accounts of the patient's medical and psychiatric histories, including previous hospitalizations, treatments, and diagnoses, may be shared, but patient conversations are excluded from disclosure.