Section 104 of Chapter 208 of the Acts of 2018 creates the Section 35 Commission and directs the commission, in part, to evaluate and develop a proposal for a consistent statewide standard for the medical review of individuals who are involuntarily committed due to an alcohol or substance use disorder pursuant to section 35 of chapter 123 of the General Laws. The commission’s full scope is available here.
With regard to the commission’s charge to develop a standard for the release of medical information, MHA convened a workgroup of hospital legal and clinical staff from across the commonwealth. MHA’s goal was to develop consistent statewide standards for the medical information required to be released to court clinicians; MHA had heard members’ concerns about the different processes courts follow for submission of medical documentation in support of a Section 35 petition, as well as medical staff confusion when interacting with more than one court. Please note that the following materials are designed to supply the courts with necessary medical information, and were not developed to change the overarching Section 35 process.
MHA worked closely with the Trial Court and DMH court clinicians to ensure the information would be acceptable and helpful to the courts when making a determination on the petition, and with care coordination following the court hearing. In addition, MHA worked with Dave Szabo, a partner, co-chair of the healthcare practice, and member of the privacy group at MHA’s member law firm Locke Lord, to provide a legal memo outlining the legal permissions within federal and state laws for sharing the information to the courts in the manner outlined in the attached materials.
The materials we are requesting members use include:
- Section 35 – Affidavit Letter: This is a template letter that MHA asks each provider to complete and attach to the “Affidavit in Support of Petition for Commitment under G.L. 123, Section 35.” Please note that the provider should not complete the actual affidavit form (available here), but indicate on the form, “See Attached Affidavit Letter.”
- Section 35 – Checklist for Affidavit Letter: This is a reference guide for the hospital/clinician to understand what essential medical information is needed in the “Affidavit Letter” and additional medical information to be attached to the letter (lab and/or medication lists). Providers should not include additional information that is not listed on this checklist.
- Section 35 – Privacy Memo: As outlined above, this is the legal memo provided by David Szabo, which was reviewed by the courts and EOHHS, which provides assurances that the information provided by a clinician to the court, as outlined in the documents above, would not be in violation of federal HIPAA or state privacy laws.