Pierce & Mandell, P.C.

11 Beacon Street, Suite 800
Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

Pierce and Mandell PC Blog

RSS Grab PAM RSS

New Massachusetts Law Requires Dental Practice Owners to Provide Additional Compensation for Associate Post-Termination Non-Compete Covenants Agreements

Monday, February 04, 2019
Pierce & Mandell, P.C. - New Massachusetts Law in Boston, MA

While Massachusetts law (See, Massachusetts General Laws Chapter 112, Sections 12X and 74D) has long provided that employed physicians and nurses cannot be subject to post-termination non-compete covenants, the Massachusetts Legislature has never extended the same unenforceability to such non-competes appearing in associate contracts for dentists. Massachusetts dental practice owners have thus come to rely on post-termination non-compete covenants as an important and customary protection for their practices. The new Massachusetts Noncompetition Agreement Act, Massachusetts General Laws Chapter 149, Section 24L (the “Act”) has changed the scope of enforceability for post-termination non-compete covenants appearing in any associate agreement entered into on or after October 1, 2018.

The Act does not apply to non-compete covenants that are included in practice sale agreements. It also does not apply to post-termination non-solicitation or non-disclosure covenants in any agreements, nor prohibitions on competition or outside activity prohibition in employment agreements that apply during the term of an associate’s employment. The Act also grandfathers and does not apply to agreements that went into effect prior to October 1, 2018.

Instead, the Act solely applies to non-compete covenants to the extent that they restrict the ability of an associate to compete in the same market as the practice following the termination of employment. The Act provides that a post-employment non-compete is unenforceable unless it meets numerous limits and standards.

Most noteworthy, and new, is a maximum limit of up to a one (1) year period, unless the employee breaches his or her fiduciary duties or unlawfully takes employer property; a requirement that the agreement state that the employee has the right to consult with legal counsel prior to signing; a restriction on enforceability against laid off employees or those terminated without cause; and, a requirement that the employer pay additional compensation to the associate in the form of “garden leave” payments of no less than 50% of the highest annualized base salary paid by the employer to the associate within the two (2) years that immediately preceded the termination date payable during the non-compete restriction period, or such “other mutually-agreed upon consideration” that must be stated in the agreement.

To ensure enforceability, a dental practice owner must now include non-compete language in new associate agreements with these limitations and include one of the two types of required additional compensation. The Act defines “garden leave” payments as payments that the owner makes to the associate during the “restricted period,” on a pro-rata basis throughout the entirety of the restricted period.

In contrast to garden leave payments, the Act provides practically no guidance with respect to what constitutes “other mutually-agreed upon consideration.” Such consideration need not be paid at a certain time(s) or in a certain amount. It must simply be agreed-to between the owner and the associate and reasonable to compensate the associate for the restriction on his or her ability to practice after termination.

An owner must take several factors into consideration in determining whether the non-compete agreement offered to associates should be supported by garden leave payments or other mutually-agreed upon consideration. While garden leave payments are certain with respect to their timing and amount, they are substantially more than most small practices are prepared to pay and are subject to the Massachusetts Weekly Wage Law (the “Wage Law”), codified as Massachusetts General Laws Chapter 149 § 148. An owner who fails to make garden leave payments may thus potentially be liable to an associate for the remedies set forth in the Wage Law, which include treble damages, attorney’s fees, and other costs.

Until there is more guidance on what constitutes “other mutually-agreed upon consideration,” small practices are likely to consider using some form of alternative consideration to support the enforceability of a non-compete. But, until there is a change in the law or a court case ruling on the scope of acceptable “mutually-agreed upon consideration,” there is little certainty as to what amount of consideration will be considered reasonable and sufficient to support enforcement of a post-termination non-compete against an associate.

The health/dental law attorneys at Pierce & Mandell, P.C. are available to advise dental practice owners, buyers, sellers and associates on how the new Massachusetts Noncompetition Agreement Act will affect their current or new contracts, associations, and transactions.

Feel free to contact Bill Mandell, Esq. at bill@piercemandell.com, Hannah Schindler Spinelli, Esq. at hannah@piercemandell.com, Samuel Hoff, Esq. at shoff@piercemandell.com, or Ryelle Seymour, Esq. at ryelle@piercemandell.com for more information about our representation of dentists and dental practices affected by this new law.

Chapter 40A ZBA Appeal Process

Wednesday, January 23, 2019
Attorney Curt Dooling

You’ve done everything you thought you were supposed to do to secure local approval for your project. You’ve spoken with all of the neighbors. You’ve hosted community meetings. You’ve met with the building commissioner. You’ve hired your architect, your engineer, and your general contractor. In some instances, you have already been through site plan review and the local planning board. The last step in the permitting process for your project is to obtain a variance or special permit from your city or town zoning board of appeals (ZBA). You make your case to the ZBA, but the ZBA denies your request. You don’t need to abandon all hope. Instead, you can consider filing an appeal of the ZBA’s decision pursuant to G.L. c. 40A, § 17.

General laws c. 40A, § 17 permits “persons aggrieved” by a decision of the ZBA to file an appeal in either the Superior Court or the Land Court seeking to overturn the decision. The c. 40A appeals process is unique and is quite technical. First and foremost, the deadline to file a c. 40A appeal is twenty days after the ZBA’s decision has been filed with the city or town clerk’s office, which is usually soon after the ZBA has rendered its decision. This short deadline is strictly enforced and late filing by even one day is fatal to an appeal.

The complaint must name all individual members of the ZBA as party defendants and must list their home addresses in the body of the complaint. If the appellant is not the applicant, but an abutter or other interested party, the applicant must also be named as a party defendant.

Pursuant to c. 40A, § 17, the party aggrieved, or appellant, must allege that the decision “exceeds the authority of the board…and any facts pertinent to the issue, and shall contain a prayer that the decision be annulled.” The appellant must also attach to the complaint a copy of the ZBA decision being appealed. After the appeal is filed in either Land Court or Superior Court, the appellant must send the complaint via certified mail to each individual member of the ZBA at their home address. Next, the appellant must file an affidavit of service with the court confirming that the complaint was served on each individual member of the ZBA.

Interestingly, neither the municipal ZBA nor the individual members of the ZBA are required to answer the complaint. However, practically speaking, the filing of a ZBA appeal will usually prompt communication from the municipality’s counsel, which can lead to a productive discussion about settlement or discovery, whichever way the case proceeds.

The judicial standard of review on appeal is a hybrid. The reviewing court, whether in Superior Court or Land Court, grants deference to the ZBA’s legal conclusions and normally will not overturn a ZBA decision unless it is based on legally untenable grounds. However, the reviewing court uses de novo review of the ZBA’s factual findings and gives them little to no evidentiary weight. This hybrid standard of review gives appellants an advantage because they can present additional evidence to the reviewing court and are not bound by factual determinations made by the ZBA.

The ZBA appeal process is unique and is undoubtedly an uphill battle. Having the right attorney on your side is essential. Pierce & Mandell’s real estate and land use attorneys have years of experience with both ZBA appeals and applications before local municipal boards.

The Eddie Mandell Memorial Scholarship Fund has been renamed The Eddie & Alyce Mandell Memorial Scholarship Fund

Wednesday, December 19, 2018

Pierce & Mandell supported charity, The Eddie Mandell Memorial Scholarship Fund has been renamed the Eddie & Alyce Mandell Memorial Scholarship Fund, to now honor and perpetuate the memory of Firm Partner Bill Mandell’s late father and mother, Eddie & Alyce.

Founded in 2000 to honor the spirit of Eddie Mandell, the Scholarship Fund has provided financial assistance to hundreds of graduating students from Boston Public Schools to realize their dreams for higher education. Since its founding, thanks to our generous donors, including, Pierce & Mandell, and the firm’s friends and event attendees, we have awarded over $100,000.00 in college scholarships. With the passing in 2018 of Eddie’s wife and Bill mom, Alyce, the Fund is now known as the Eddie & Alyce Mandell Memorial Scholarship Fund.

Commenting on the renaming Bill noted, “my mom Alyce shared with my dad, Eddie, immense generosity and kindness, and they were most passionate about helping kids get into and staying in college. My mom helped found the Scholarship Fund to keep Eddie’s spirit alive, and she enjoyed attending the scholarship award ceremonies and meeting the Fund’s scholarship recipients. It is fitting that we now honor Eddie and Alyce and their blessed memory together, as during their lives they truly were partners in making the world a little bit of a better place.”

For more information about and to donate to the Eddie & Alyce Mandell Memorial Scholarship Fund, go to https://www.emandellscholarship.com/.

More Honors For Pierce & Mandell Attorneys

Monday, November 26, 2018

Pierce & Mandell, P.C. is proud to announce that all of its partners Bob Pierce, Bill Mandell, Michael Fee, Bob Kirby, Tom Kenney and Dennis Lindgren have been selected as 2018 New England Super Lawyers.



Bob Pierce was recognized as a Super Lawyer in the practice of Civil Litigation Defense, Bill Mandell in Health Care Law, Michael Fee, Bob Kirby and Tom Kenney in Business Litigation and Dennis Lindgren in Plaintiff’s Personal Injury.

Super Lawyers rates lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations.

In addition, Bill Mandell was named in the 25th edition of The Best Lawyers in America in the practice area of Health Care Law. Best Lawyers® identifies the top 5 % of private practice attorneys nationwide, as determined by peer review.

For information or assistance from Pierce & Mandell, P.C., contact us.

Dennis M. Lindgren Becomes President of the Board of Directors of the Natural Resources Trust (NRT) of Easton, Massachusetts

Wednesday, November 21, 2018

On November 18, 2018, Pierce & Mandell shareholder Dennis M. Lindgren was elected President of the Board of Directors for the Natural Resources Trust (NRT) of Easton. The NRT’s mission is to educate as to the significant natural and cultural resources all around us, as well as to acquire and preserve land of special character for the benefit of the public. The NRT promotes a land ethic in the community through environmental educational programming for youth, while at the same time preserving Easton’s rural character and heritage. The NRT is steward to over 250 acres in Easton. Lindgren, a longtime resident of Easton and neighbor of the NRT, was honored to be asked to lead the NRT. “My wife and I have enjoyed the beauty of the NRT for over 10 years and have always admired the important environmental educational work the NRT does, not only with the children of Easton, but with thousands of children from towns and cities throughout Eastern Massachusetts. The NRT is the jewel of Easton and as its President, I look forward to leading it into the future as we undertake a major capital improvement campaign, as well as continued membership and fundraising development.” More information about the NRT and the great work it does can be found at the following link: http://www.nrtofeaston.org/

Pierce & Mandell’s Recent Land Court Victory Regarding Scope of the Dover Amendment Now Heading to the Appeals Court

Wednesday, November 21, 2018

By: Michael C. Fee

Pierce and Mandell - Michael C. FeeThe ruling in The McLean Hospital Corporation v. The Town of Lincoln and others et al., concerns an appeal from a Lincoln ZBA determination that McLean’s proposed use of residential property is not exempt from zoning under the Dover Amendment, G.L. c. 40A, § 3. Pierce & Mandell shareholder Michael C. Fee represented a group of abutters who opposed the project.

The Lincoln Proceedings

Throughout the case McLean described its intended use as "a residential program implementing a highly structured model of learning behavior through a specialized curriculum known as Dialectical Behavior Therapy (“DBT”).” The program is currently one of two residential programs located on the grounds of McLean in Belmont and is referred to as the 3East Boys Program. It is designed principally to serve persons suffering from symptoms associated with Borderline Personality Disorder (“BPD”).

The Lincoln Building Commissioner initially determined that the proposed use was in fact educational and therefore zoning exempt. The abutters appealed to the ZBA who overturned the Commissioner’s determination. In that decision, the ZBA recognized that while there "are aspects of the methodology used by DBT that look similar to the standard methods of education," they are "not being utilized for the purpose of education, in either the traditional or non-traditional sense. Rather, they are being used as a therapeutic technique (and a recognized and effective one) to address and treat a psychological condition, to cure or ease the effects of BPD on young males." The ZBA concluded that "the objective of the program is treatment of a mental disease or disorder; the curative aspects of the program predominate.” McLean appealed to the Land Court.

The Land Court Trial

By agreement, the parties framed the sole issue for trial as "whether the proposed use of [the Property] is educational as that term is used in G. L. c. 40A, § 3, Lincoln By-law § 6.1(g), and case law interpreting the so-called Dover Amendment." Throughout the course of the trial, McLean characterized the proposed treatment program as a learning based, educational model, whose primary emphasis was to teach adaptive skills to help patients manage their BPD symptoms and improve their quality of life. McLean emphasized the acquisition of “skills” and downplayed the fact that the teaching, generalization and validation of skills was also a component of a broader, comprehensive therapeutic program.

The Town and abutters countered that while McLean’s program provides an effective and beneficial treatment to adolescent boys with an acute mental illness, the services could not be fairly characterized as predominantly educational. Instead, the program delivers a complex and coordinated treatment regimen, implemented by highly trained teams of medical professionals, led by licensed psychologists, psychiatrists and social workers. The “skills training” offered by McLean is not primarily for the purpose of educating an individual, but rather to treat an illness in a manner that will simply allow the typical patient to function without resorting to the suicidal and self-harm tendencies that are a component of the illness.

The facts required analysis of nuanced intersection between developing concepts of education, and traditional constructs that frame treatment of mental illness. While the case law establishes broad parameters for what may be considered a protected educational use under the statute, at the same time courts have recognized that there are limits, and just by virtue of the fact that something is taught, does not inherently render the activity a protected educational activity under the Dover Amendment. Kurz v. Board of Appeals of North Reading, 341 Mass. 110, 113 (1960.)

Dover’s Historical Treatment of Educational Uses

G.L. c. 40A, § 3 “preempt[s] the uniform application of zoning laws only where those laws impede the use of land for educational activities, and not where their primary effect is on noneducational uses... [I]n order to claim the protection of the Dover Amendment's ‘educational purposes’ clause, a landowner must demonstrate that its use of land will have as its primary purpose a goal that can reasonably be described as educationally significant.” Regis Coll. v. Town of Weston, 462 Mass. at 291. “In employing the phrase ‘educational purposes,’ the Legislature used ‘everyday words’ that must be interpreted in view of common usage . . . [I]n a broad sense, anything taught might be considered, to a greater or less degree, educational.’ Kurz v. Board of Appeals of N. Reading, 341 Mass. 110, 113 . . . however, the Dover Amendment is a statute regulating ‘land use, not philosophy,’ See Needham Pastoral Counseling Ctr. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31, 34, (1990), and a facility would only be described as ‘educational’ in common usage if it served primarily educational purposes.” Regis Coll. v. Town of Weston, 462 Mass. at 288-289.

In order to be a qualified educational use under the statute, a program must have as its “bona fide goal something that can be reasonably described as ‘educationally significant’.” Regis College v. Town of Weston, 462 Mass. 280, 285 (2012). Moreover, such “educationally significant goal must be the primary or dominant purpose for which the land or structures will be used.” Id. (internal citations omitted).

Numerous courts have considered whether similar types of programs have educationally significant goals which are the primary and dominant purpose of the project. In rejecting or approving these requested exemptions, courts have focused on the specific attributes of the proposed programs , including who is teaching , who is being taught , the content of the material conveyed , and the overall purpose or goal of the activity. Finally, and critically, courts have sought to look beyond the individual activities or components of a program in an effort to determine whether, in the aggregate, the proposed use is educational.

Historically Massachusetts courts have held that residential programs providing a traditional education to individuals with special needs, like the program described in Harbor Sch., Inc. v. Bd. of Appeals of Haverhill were educational. In that case, the program at issue involved “periodic diagnostic reading tests which consist of word recognition, word analysis, [and] various achievement tests which involve world [sic] . . . knowledge, reading comprehension, spelling, language, simple mathematical computation, (and) mathematical problems”. Id. Harbor Sch., Inc. clarified that a program, including a residency program, which adapts traditional educational instruction in reading, writing, and mathematics to meet the needs of a particular population of individuals is “educational” under G.L. c. 40A, § 3. Id. at 605.

The principle has endured. In Fitchburg Hous. Auth., the SJC considered whether a facility for “chronically disturbed people who have been in mental institutions” was eligible for exemptions as an educational use. In that case, the use was a “training program aimed at developing or learning social and interpersonal skills such as learning to keep themselves physically clean, learning to shop and how to use money, [and] learning to cook.” Id. at 871-872. Based upon those facts, the SJC determined that the program in Fitchburg was educational and described it as “[i]nstruction in the activities of daily living.” 380 Mass. at 875. See also Gardner-Athol Area Mental Health Ass'n, Inc., 401 Mass. at 14, (“The residents would be taught daily living, as well as vocational skills, with the goal of preparing them for more independent living.”).

While the definition of “educational” is expansive, it is not all-inclusive. As was particularly relevant in this case, the court in Fitchburg distinguished an “educational” program from what the lower court deemed to be the operation of “a medical facility” based on the fact that the program in Fitchburg did not include doctors, and that the program participants were unlikely to harm themselves or others. 380 Mass. at 873. (“There will be no nurses or doctors regularly in attendance at the facility. There is no indication that the residents will be a threat to themselves or to the public.”).

Other courts have found this distinction significant. For example, in a 1988 ruling, the Land Court determined that a facility offering education intended to prevent the onset of mental illness was “educational” under G.L. c. 40A, § 3 because “common indicia of a doctor-patient relationship such as the formation of a contract or alliance, individualized diagnosis and treatment, the payment of fees, and the keeping of progress notes and other records, were not present. [The organization] does not purport to treat mentally ill persons, and in fact attempts to screen such persons from its programs.” Life Studies Found., Inc. v. City of Newton, No. 117068, 1987 WL 966066, at *6 (Mass. Land Ct. Nov. 19, 1987), aff'd, 26 Mass. App. Ct. 1111, 527 N.E.2d 752 (1988).

Similarly, in a 2004 case, the Land Court found that a program involving “weekly workshops (minimum three hours) focusing on skills such as functional resume writing, interviewing for a job, cooking and healthful food shopping, home maintenance and house cleaning, car repair and maintenance, rejoining the work world, creating satisfactory relationships with co-workers and supervisors, parenting skills, conflict resolution, balancing a checkbook, creating a monthly budget, and dealing with the stigma of mental illness” fell within the parameters of education, and expressly noted that “[t]he lack of medical personnel onsite is identical” to the Fitchburg case.” Austen Riggs Ctr., Inc. v. Considine, No. 288451, 2004 WL 1392279, at *2 (Mass. Land Ct. June 22, 2004).

Applying the case law to the facts in Lincoln, the Town and abutters argued that the serious psychological conditions afflicting the patients McLean proposed to treat were markedly distinguishable from individuals receiving educationally significant services in the context of residential group home care. In fact, all cases in which courts have found educationally significant uses in the group home context involve individuals lacking in life or interpersonal skills that interfere with their ability to function independently in society, and detract from their quality of life. Typically, such programs serve as an immediate bridge to employment or education. Courts have drawn a bright line, however, when such programs approach active medical treatment, nursing home equivalence, or adult day care. In fact, no case law supports the contention that active psychiatric treatment of persons suffering from mental illness is “educationally significant” as that term is utilized in the context of the Dover Amendment.

The Land Court’s Ruling

The Court ultimately found that “the expansive case law interpretation of education does not reach the use proposed in this case for two reasons: First, to the extent the cases have broadened the traditional definition of education (i.e. coursework in school settings), the cases have embraced teaching in non-traditional settings, or to non-traditional learners, or both. The nature of the curriculum has been what the courts have characterized as 'core life skills' such as cooking, shopping, job-seeking, or other skills people need on a daily basis to function in society. Programs more medical in nature have been excluded from the broad definition.”

More specifically, the Court noted that “[u]nlike the programs described in Fitchburg Hous. and Gardner-Athol, McLean's proposed program does not teach such core life skills. Instead, the skills training offered by the 3East Boys Program targets the "emotional dysregulation" caused by Borderline Personality Disorder and related mental health diagnoses. The goal is self-management of the disorder so the participants can rejoin their families, return to school, or, in some cases, return to residential treatment centers.

Rather than educating the participants in daily living skills focused outward - toward assimilation into the community - and which are distinct from the participants' mental illness - the 3East Boys Program focuses on developing skills which look inward and pointedly address the manifestations of the individual's diagnosis.”

Finally, the Court concluded that “to the extent one could characterize the curriculum of the 3East Boys Program as educational due to the manner of teaching or the structure of the program itself, those components are secondary to the dominant and primary purpose. This court is persuaded that the purposes that are primary and dominant are therapeutic and curative, providing individuals who need significant intervention and tools at their disposal to help them deal with the inability to regulate their emotions due to their mental illness. The skills offer a chance to get beyond crisis points in their lives and have a method to call on in the future when needed.” McLean has filed a Notice of Appeal and may seek direct appellate review to Supreme Judicial Court. We will offer further commentary and analysis as the case progresses.

You can read the Land Court’s Decision in its entirety here:

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A164a39a2-0bbf-4e50-98b5-e2469568797d

Michael C. Fee is Pierce & Mandell shareholder with extensive experience in zoning and land use litigation. He can be reached at mfee@piercemandell.com.

----------------------------

1See Harbor Sch., Inc. v. Bd. of Appeals of Haverhill, 5 Mass. App. Ct. 600, 603 (1977) (Reviewing details of program to determine whether or not it is educational); Whitinsville Ret. Soc., Inc. v. Town of Northbridge, 394 Mass. 757, 760 (1985) (same); Fitchburg Housing Authority v. Board of Appeals of Fitchburg, 380 Mass. 869, 870-871 (1980) (same); Gardner-Athol Area Mental Health Ass’n v. Zoning Bd. of Appeals of Gardner, 401 Mass. 12, 16 (1987) (same).

2Whitinsville Ret. Soc., Inc. v. Town of Northbridge, 394 Mass. 757, 761 n. 3 (1985) (finding no “trained professionals” would be educating the residents).

3See Comm'r of Code Inspection of Worcester v. Worcester Dynamy, Inc., 11 Mass. App. Ct. 97, 99 (1980) (“high school seniors of the city of Worcester may enroll in the program for credit as a substitute for the senior year.”); Metrowest YMCA, Inc. v. Town of Hopkinton, No. 287240, 2006 WL 1881885, at *7 (Mass. Land Ct. July 10, 2006) (“The YMCA members and others who participate in programs there are not ‘students’”).

4See Fitchburg Hous. Auth., 380 Mass. at 872 (“interpersonal skills such as learning to keep [. . .] physically clean, learning to shop and how to use money, (and) learning to cook” deemed educational); Harbor Schools, Inc. v. Board of Appeals of Haverhill, 5 Mass. App. Ct. 600, 603 (1977) (each of these children admitted needs emotional psychiatric adjustment as well as daily educational indoctrination in the basic studies such as English, mathematics, science, etc.”); compare Kurz, 341 Mass. at 113 (“teaching of the various types of dances advertised by the plaintiff, with the possible exception of the classical ballet, can hardly be considered educational use in the ordinary sense.”)

5See Whitinsville Ret. Soc., Inc., 394 Mass. at 760 (“The issue is whether the plaintiff's project ‘is operated primarily for an educational purpose.’”) (quoting Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 603 (1977)).

6See Fitchburg Hous. Auth., 380 Mass. at 873 (“The fact that many of the residents of the facility will have been residents of mental institutions and will be taking prescription drugs does not negate its educational purpose or make its dominant purpose medical. There will be no nurses or doctors regularly in attendance at the facility. There is no indication that the residents will be a threat to themselves or to the public.”); Austen Riggs Ctr., Inc. v. Considine, No. 288451, 2004 WL 1392279, at *3 (Mass. Land Ct. June 22, 2004) judgment entered, No. 288451, 2004 WL 1392281 (Mass. Land Ct. June 22, 2004) (“[T]he facts of this case make it clear that there will be minimal medical treatment at the Property, and the predominant use is educational in nature.”); Life Studies Found., Inc. v. City of Newton, No. 117068, 1987 WL 966066, at *6 (Mass. Land Ct. Nov. 19, 1987), aff'd, 26 Mass. App. Ct. 1111, 527 N.E.2d 752 (1988) (“[C]ommon indicia of a doctor-patient relationship such as the formation of a contract or alliance, individualized diagnosis and treatment, the payment of fees, and the keeping of progress notes and other records, are not present. Life Studies does not purport to treat mentally ill persons, and in fact attempts to screen such persons from its programs.”); see also Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 37 Mass. App. Ct. 657, 658 (1994), aff’d, 421 Mass. 106 (1995) (no active medical treatment on site).

7Whitinsville Ret. Soc., Inc., supra at 760-761 (Finding that an “element of education” was insufficient to render a nursing home educational).

8Regis Coll. v. Town of Weston, 462 Mass. at 291 (“[T]o qualify for Dover Amendment protection, the plaintiff must establish that the residential and recreational aspects of Regis East do not constitute its primary purpose but instead support the project's dominant educational purpose of providing academic and health-related instruction to older adults.”).

P&M Lawyers Help Truro Farming Co-Op Pass Zoning By-law Allowing Cannabis Cultivation

Tuesday, November 20, 2018

By: Michael C. Fee

Last week the Cape Cod town of Truro became the first Massachusetts municipality to enact a zoning bylaw that allows cannabis cultivation in a residential district. The by-law was a product of intense public debate over the past several months as the Truro Planning Board attempted to craft a proposal that balanced the concerns of residential property owners with the needs of local organic farmers hoping to gain a foothold in the nascent Massachusetts marijuana industry.

At a Special Town Meeting on November 13, 2018, Truro voters approved several amendments to the Planning Board’s proposal, including increasing the number of allowed microbusinesses from 1 to 2, and eliminating the requirement that all marijuana establishments be located in stand-alone structures.

Pierce & Mandell shareholder Michael C. Fee, who has advised the Co-op throughout the permitting process, argued for increases in the bylaw’s limitations on canopy space, noting that other bylaw provisions regulating cultivation activities were sufficient to protect the residential district’s character, and that the initial maximum canopy restrictions proposed by the Planning Board would create barriers to entry and curtail growth opportunities for the Co-Op’s business. After lively debate Town Meeting approved the by-law as amended, with many speakers affirming their support for farmers in the community.

Press coverage of the Special Town Meeting can be viewed at:

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3Acd388ba9-e1a2-4fe8-a280-43ec391d0346

and

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A00b00a34-1148-47a3-b0e2-436e2def414d

A full text of the by-law proposed by the Planning Board can be viewed here:

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3Ab4edbd0e-6f37-4f3f-adc8-cca50b3500cb

Michael C. Fee is a Pierce & Mandell Shareholder with extensive experience in zoning, land use and municipal law. He can be reached at mfee@piercemandell.com.

Pierce & Mandell Attorneys Represent Hospitals and Doctors in Hospital Privileges Proceedings

Friday, November 02, 2018

Led by founding shareholders Bob Pierce and Bill Mandell, Pierce & Mandell has successfully represented hospitals, medical staffs and their executive committees, and individual doctors in peer review proceedings involving the revocation, suspension or modification of an individual doctor’s hospital privileges. These matters carry great weight and pit competing interests against each other: for the hospital and medical staff, patient safety and integrity of the facility and its workplace, and for the physician, the ability to maintain privileges and practice medicine at the hospital, and to avoid adverse consequences and reportable events.

Doctors who practice at hospitals, whether employees of the hospital or in private practice, must be granted privileges and be members of the medical staff to treat patients at that hospital. Privileges and medical staff membership are recommended by the medical staff through its medical executive committee (MEC) after vetting by the medical staff credentials or other peer review committee, and then approved by the hospital’s governing body. Doctors are generally subject to re-credentialing every two years to maintain their privileges and medical staff membership status.

Both teaching and community hospitals are regularly faced with issues concerning whether a doctor should continue to hold privileges at that hospital, or whether a particular incident or pattern of conduct warrants some form of corrective or disciplinary action after a peer review. The type of issues that arise are many, and include allegations of poor clinical performance, unprofessional conduct, patient abandonment, incompetence, and substance abuse.

The peer review, disciplinary/corrective action process and due process rights to be afforded the subject doctor are determined by the hospital’s medical staff by laws, which vary greatly from hospital to hospital. Common to all medical staff bylaws, the hospital chief executive may summarily suspend a doctor, and the MEC is empowered to recommend to the governing body that a physician’s privilege be revoked, suspended, or subject to restrictions.

Doctors, in all hospital medical staff bylaws, have due process rights to contest any serious recommended disciplinary action or imposed summary suspension.

Doctors who are also employed by an affiliated medial group of the hospital must also be handled under their employment contracts and general rights of employees, which often raise challenging and concurrent, but very different questions on hospital privilege and employment rights.

Any events leading toward or involving medical staff disciplinary actions and/or serious employment failures can be reportable to both state and federal agencies.

Pierce & Mandell is regularly engaged by hospitals, medical staff and hospital affiliated medical groups to represent their interests in these matters.

This includes our litigators, led by Bob Pierce, and our health lawyers, led by Bill Mandell

In a typical medical staff hearing, the doctor is informed in writing of the disciplinary proceedings against him or her, and a hearing is held before an ad hoc hearing committee or hearing officer appointed by the MEC. Medical staff bylaws vary about whether attorneys may participate directly in these hearings and how they are to be conducted and the burden of proof.

If the hearing body issues a ruling adverse to the physician, he or she generally has the right to appeal that decision to the governing body.

Pierce & Mandell regularly advises hospitals and medical staff MECs on how to properly conduct initial stage peer review, what is reportable and when, and the entire due process hearing process, so that the physician’s right is upheld while the medical staff bylaws are properly applied for the protection of the facility, and its patients and workers.

We have served as legal counsel for hospitals and medical staffs to present the case to hearing panels and officer. We have served as legal advisor to the hearing bodies and also have been appointed by hospitals and MECs to serve as hearing officers.

We also represent doctors in these hearings to ensure that their due process rights are upheld, and adverse consequences are minimized.

Obtaining experienced, competent counsel for peer review hearings is crucial for all involved.

An adverse ruling against a physician results in reporting of the matter to licensing boards, the National Practitioner Data Bank and will be disclosable on all future licensure, facility and payer credentialing applications as well as employment background checks. For the hospital, its medical staff and MEC, failure to follow their bylaws can result in costly litigation by the doctor seeking to overturn the discipline that has been issued or recommended

Feel free to contact Robert Pierce bob@piercemandell.com or Bill Mandell bill@piercemandell.com for more information about our representation of clients in physician disciplinary matters.

Pierce & Mandell’s Client Prevails in FAA Determination

Wednesday, October 31, 2018

By: Michael C. Fee

After a three year investigation, the FAA has concluded the Norwood Airport Commission unreasonably denied Pierce & Mandell client Boston Executive Helicopters access to the Norwood Airport, and improperly granted the existing fixed based operator exclusive rights in violation of Federal Grant Assurances 22 and 23.

By way of background, in 2008 the FAA determined that the Norwood Airport Commission engaged in economic discrimination by granting the fixed based operator (“FBO”) exclusive rights in violation of Title 49 of the United States Code (USC) §§ 47107(a), 40103(e) and Federal Grant Assurances 22 and 23. The FAA then issued a Corrective Action Plan directing the Airport Commission to, among other things, end the practice of awarding long-term leases of federally funded ramps which had the effect of granting the existing FBO control over a majority of Airport ramp space.

FlightLevel Norwood, LLC (“FlightLevel”) purchased the FBO at the Airport in 2009. Pierce & Mandell client Boston Executive Helicopters (“BEH”) has provided helicopter charter services at the Airport, and has requested permission and additional ramp space to expand its operations to include providing FBO services, since 2010.

In response to BEH’s requests for space and permitting approvals, the Airport Commission resisted and resorted to a pattern of obfuscation and disparate treatment. It demanded financial information, personal guarantees, and insurance coverage not required by the Airport’s minimum standards, or requested of other Airport tenants including FlightLevel.

BEH filed a Part 16 Complaint to the FAA in 2015, and on October 30, 2018 the FAA issued a Determination, finding that the Commission’s “delaying tactics, restrictions and excessive financial information requests” constituted a “continued pattern of delay to prevent BEH from completing the FBO permitting process.” The FAA concluded that the Town and the Commission’s actions constitute an unreasonable denial of access [to BEH] and unjust economic discrimination [against BEH].”

While holding the BEH at bay, the FAA also found that the Commission continued to bestow greater control of airport ramp space to FlightLevel by offering it new leases on a variety of federally funded ramps. Specifically, the Commission offered FlightLevel new lease terms for Lots A, B, and C at the Airport, notwithstanding BEH’s pending request for space for its FBO. The FAA concluded that the “Commission chose to ignore the letter, spirit and tenets of the previously ordered 2008 FAA Corrective Action Plan.” The FAA rejected the Commission’s excuse that the leases to FlightLevel were justified because it controlled abutting property. Such rationale “. . . is not justified, nor does it give first rights. . . It is camouflaging an exclusive right.”

The FAA went on to find that the Commission’s unfair treatment of BEH, and favorable treatment of FlightLevel violates Title 49 USC § 47107(a)(1) and related Federal Grant Assurance 23 (Exclusive Rights). The Commission’s subtle imposition of unreasonable restrictions on BEH, when combined with the favorable leasing practices toward FlightLevel, had the overall effect of solidifying FlightLevel’s position at the Airport to the detriment of BEH, and others. “The facts show that FlightLevel has a significant portion of the available property useful for FBO services, approximately 80%, and rather than curtailing FlightLevel’s grasp, the Airport expanded it.” This, in the judgment of the FAA, violates Federal Law and Grant Assurances prohibiting the grant of exclusive rights to a single operator.

The Director’s Order requires the Town and the Airport Commission to take immediate steps to promptly complete the FBO permitting process with BEH, discontinue leasing practices that provide exclusive rights to a single FBO, and rectify the unauthorized lease of Airport land to Verizon for non-aeronautical use. The Town and the Commission have 30 days to appeal.

The full text of the FAA Director’s Determination can be found at: https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A9034a6d1-ad1b-4b79-8322-141aebf218fc

Pierce & Mandell shareholder Michael C. Fee represents Boston Executive Helicopters in the FAA proceeding and in related litigation. He can be reached at mfee@piercemandell.com.

Pierce & Mandell Lawyers to present at 2019 Yankee Dental Conference

Friday, October 05, 2018
Pierce & Mandell, P.C. - Bill MandellPierce & Mandell, P.C. - Hannah Schindler Spinelli

Bill Mandell and Hannah Schindler Spinelli of Pierce & Mandell, P.C. will be presenting a continuing education seminar entitled Legal Issues in Practice Transitions at the 2019 Yankee Dental Conference on Thursday, January 31, 2019 at 2:00pm.

The program will focus on the legal issues in the purchase and sale of practices and ownership in practices. Topics covered will include

  • What legal documents are necessary to buy or sell a practice and when to retain legal counsel?
  • What are the most important early steps to take to ensure that the transition will be successful?
  • How can buyers protect themselves from the liabilities of the seller?
  • How can sellers secure commitments for post-closing activities?
  • What are restrictive covenants and are enforceable, and how are they impacted under the new Massachusetts non-compete law?

For more information on the program see https://www.yankeedental.com/course?sfid=a181J000004TfduQAC.

To register for Yankee Dental go to https://www.yankeedental.com/.


Enter your e-mail address below to receive updates on new blog posts!


Recent Posts


Archive


Tags