SJC Decision Clarifies the Law Regarding a Retiree’s Entitlement to Group Health Insurance. The Retiree Had Resigned From Employment And Elected Not to Continue on the Group Plan Under the “Deferred Retirement” Rules But Chose Instead to Apply at the Time of Actual Retirement

In a decision issued on June 18, 2025 the Supreme Judicial Court has clarified a provision in the group health insurance law, G.L. chapter 32B. The relevant provision is G.L. c. 32B, § 9, which governs the group health insurance rights of retirees.

In Cannata v. Town of Mashpee, No. SJC-13637 (June 18, 2025), the court was asked to decide how section 9 applies to a retiree’s eligibility where the retiree had voluntarily left employment, did not continue on the group plan under the “deferred retirement” law, subsequently retired, and sought to enroll in the former employer’s group health plan.

Section 9, first paragraph, entitles an employee who retires while employed to continue on the plan provided that the employee pays the full premium.[1] At issue in Cannata was the third paragraph of §9. That paragraph allows an employee who voluntarily leaves employment and who defers retirement to continue on the group health plan by paying the full premium. In Cannata the employee had left his employment with the Town and had chosen not to continue on its plan. After retiring he sought to enroll but the former employer Town denied his application on the grounds that he was ineligible under its established unwritten practice where the retiree had not continued on the plan when leaving employment.

The retiree brought a lawsuit and the Superior Court dismissed his complaint for failure to state a claim because he had not alleged his compliance with the steps required to continue his coverage when he voluntarily resigned. After the retiree appealed to the Appeals Court, the SJC assumed jurisdiction of the appeal on its own initiative.

The court pointed out that the first paragraph of §9 requires that an employee on the group health plan at the time of retirement is entitled to remain on the plan by paying the applicable premium. The court held that this paragraph “imposes a requirement that the municipality’s group policy must be continued in retirement — not a requirement as to who is eligible for such coverage” [emphasis added]. It therefore ruled that a retiree who is not on the plan at the time of retirement “may be lawfully excluded under a reasonable municipal regulation, without running afoul of §9, first par.” [emphasis added].

Turning to the third paragraph of §9 covering deferral of retirement, the court observed that this paragraph “does not apply to Cannata because, at the time he sought to enroll in the town’s group health insurance plan, he had retired.” It held that the trial court’s dismissal therefore was error because Cannata’s failure to comply with the third paragraph’s steps are inapplicable to a retiree who applies for coverage at the time of retirement. The court decided that the retiree’s claim “depends entirely on the town’s regulations and policies”, noting that where the statute is silent “the issue is left to local discretion.”

The court then addressed what an applicant must allege in a complaint based on these circumstances. The court held that it is not enough for a retiree to allege the absence of a policy barring enrollment. It held, instead, that the complaint must allege “facts plausibly suggesting the existence of a policy permitting enrollment by a retiree following a deferred retirement during which the retiree was not enrolled” [emphasis in original]. Because the retiree had not made these allegations the court affirmed the dismissal, although it ordered that the retiree be given the opportunity to amend his complaint.

This case clarifies that §9 does not address the eligibility for group health insurance of a retiree who resigns before retirement and does not continue on the group health plan under the third paragraph. That, instead, is left to the rules and practices of the municipal employer. It should be noted that the allegations in Cannata indicated that the Town’s policy/practice was not “written”. Although the court did not explicitly address this factor, the better practice clearly is to establish the rules in writing. Among other advantages this gives all persons notice of the rules and also minimizes the sorts of conflicting reasons given for denial that were alleged in this case.[2]

We are pleased to provide advice to public employers regarding group health insurance and contributory retirement.

This update is provided for informational purposes only and should not be considered legal advice.

[1] Sections 9A and 9E are local acceptance laws that allow the employer to pay half or more than half the applicable premium, respectively. Nothing in the Cannata decision affects these provisions.

[2] In Cioch v. Treasurer of Ludlow, 449 Mass. 690 (2007), the court rejected a challenge to a municipal policy “first reduced to writing in 1999, [that] has the effect of denying enrollment to retirees who were not enrolled at the time of retirement.” As the court noted, these regulations must be “reasonable”. They also cannot conflict with the provisions in chapter 32B.

Summer To-Dos for School Districts

As our school districts prepare for the start of the 2025-2026 school year, the summer presents a great opportunity to review and revise district documents to comply with federal and state laws and regulations and to codify best practices going forward. Here are a few areas that typically warrant review:

Student Handbooks and Educational Service Plans

State law requires that school councils review student handbooks each year to consider changes in policies to take effect the following September. Additionally, all school buildings are required by law to have written educational service plans detailing available alternative educational services for students removed from school longer than ten (10) days. The attorneys in our office are available to review these documents and recommend changes for the 2025-2026 school year.

School Committee Policies

Depending on the issues your School Committee and district may have faced recently, as well as recent changes to federal regulations, the School Committee may want to consider reviewing and updating certain policies. School Committee policies that have required the most updates in the last year include:

  • Non-Discrimination on the Basis of Sex (Title IX)
  • Staff Conduct
  • Relations with Parent/Booster Organizations
  • English Learner Education
  • Library Materials Section and Adoption, Library Resources
  • Public Comment at School Committee meetings

Bullying Plans and Policies

State law requires that school districts review their bullying plans and policies every two years. If the 2025-2026 school year falls on your district’s year for review, our attorneys would be pleased to assist in the review of your current bullying plans and policies and recommend changes where needed.

Student Disciplinary Notices and Hearings

School districts must comply with federal and state laws and regulations in addressing student discipline. In the past year, school districts have experienced an increase in complaints with DESE’s Problem Resolution System (“PRS”), the Bureau for Special Education Appeals (“BSEA”) and federal and state courts regarding student discipline. The attorneys in our office are available to review and revise disciplinary notice templates for compliance with current legal requirements. In addition, we provide training for new and experienced administrators on the proper procedures and requirements for disciplining students, including students with IEPs.

Please contact us for administrator training, assistance in reviewing and revising current policies and procedures, and for assistance on other areas of school law in preparation for the 2025-2026 school year.

This update is provided for informational purposes only and should not be considered legal advice.

Supreme Judicial Court Effectively Reverses Appeals Court Decision That Had Addressed the Three-Stage Burden Shifting Test Applicable to Charges Alleging Retaliation for Union Activity Based on Circumstantial Evidence

The Supreme Judicial Court has effectively reversed an Appeals Court decision regarding retaliation claims under G.L. chapter 150E that was issued literally one year earlier to the day.

In City of Newton v. Commonwealth Employment Relations Board (“CERB”), 104 Mass.App.Ct. 203 (2024), the Appeals Court had reversed a decision by the CERB. That decision, in turn, had reversed a DLR hearing officer’s ruling regarding the three-stage burden shifting test that applies to a charge of unlawful retaliation for the exercise of rights protected by chapter 150E where the claim relies on circumstantial evidence. The charge was based on the unilateral transfer of a police officer from the day shift to the night shift, allegedly in retaliation for union activities. The hearing officer ruled that the employee had failed to meet his third stage burden of proof – that “but for” his union activities the officer would not have been transferred – after finding that the City had rebutted the officer’s case at the second stage with evidence of poor work performance.[1]

The Appeals Court reversed the CERB’s decision regarding the first stage requirement that the charging party show an “adverse action” affecting the employee. It did so by ruling that where the officer received a pay increase under the collective bargaining agreement as a result of the transfer, there was no “adverse action” as required. While unnecessary to its decision the court also held that the City-employer as a matter of law had met its second stage burden of showing a legitimate/non-pretextual reason for the transfer. The court’s ruling was based on evidence that the officer had a documented record of an unprofessional altercation with a supervisor and prior noncompliance with protocols, as well as on the hearing officer’s decision to credit the testimony of the investigating officer and the lack of evidence of a retaliatory motive.

The Supreme Judicial Court granted an application for further appellate review. In City of Newton v. CERB, No. SJC-13655 (May 22, 2025) the court has affirmed the CERB and effectively reversed the Appeals Court’s decision. It held that, measured by the “substantial evidence” test, the Appeals Court was required to defer to the CERB’s evaluation of the three stages even though a contrary decision might also “find[] support in the administrative record”.

Applying this standard of review, the court held that the CERB was not obligated to rule that the officer failed to show an adverse action at the first stage simply because his transfer to the night shift resulted in a pay increase under the City’s applicable agreement with the officer’s union. Agreeing that “one factor” in the assessment might be the employer’s compliance with an agreement and the resulting benefit of a pay increase, the court observed that other evidence showed disadvantages in a transfer to the night shift regarding time off and schedule irregularity. The court decided that the CERB plausibly could determine that this was enough to meet the officer’s burden of showing an “adverse action” at the first stage. It also rejected the City’s argument that the officer’s poor performance record mandated a conclusion that he had not satisfied his burden at the first stage, because the charging party is not required “to prove a good work record”.[2]

Moving to the second stage requirement that the employer produce evidence of a legitimate reason for the decision, the court held that the CERB properly determined that the City had not satisfied the employer’s burden at this stage. Again applying the “substantial evidence” test for judicial review, the court found that the City presented no evidence that it took the officer’s prior performance into account when it made the transfer decision and that the CERB properly could find a failure to meet the second stage burden.

This ruling is instructive regarding the standard under which the courts review an agency’s assessment of the three-stage burden shifting test for chapter 150E retaliation claims based on circumstantial evidence. That includes judicial deference to the agency’s latitude in evaluating the evidence at each stage. It also provides guidance as to how a retaliation case can be defended and argued at a hearing.

Obviously, these cases are highly dependent on their specific facts and legal advice should be sought in assessing any given claim.

If you have any questions about the content of this update, please contact us. We are pleased to assist public employers with all issues related to the collective bargaining relationship under chapter 150E.

 

 

[1] The hearing officer had found that the officer met his first-stage burden of showing an adverse action but that the City had rebutted this at the second stage by showing a poor work record. After both parties appealed to the CERB, it affirmed the hearing officer’s first stage ruling but reversed her second stage ruling.

[2] The Appeals Court had reached the same conclusion regarding this argument.

 

 

This update is provided for informational purposes only and should not be considered legal advice.

Appeals Court Issues Decision Clarifying in Detail the Attorney-Client Privilege of Municipal Entities

In a decision issued on March 28, 2025 a panel of the Massachusetts Appeals Court has analyzed in detail the attorney-client privilege of municipal entities. Kay v. Town of Concord, No. 23-P-1271 (2025), involved an appeal from a Superior Court judgment that the plaintiffs were not entitled to obtain unredacted emails involving communications between Town officials regarding a public dispute regarding a trail in the Town and abutting property owners. The Town had redacted the emails in response to a discovery request and a later request under the Public Records Law on the basis that they were communications covered by the Town’s attorney-client privilege and by the work product doctrine (both of which municipal privileges had been established by prior decisions).

On appeal the Appeals Court affirmed in part and reversed in part. The court first rejected the plaintiffs’ argument for a per se rule that the privilege could not apply to all emails that did not involve the Town’s attorney. Noting prior decisions at odds with this argument, the court observed in addition that there was no dispute that the Town is a “client” or that the Town Manager and members of the Select Board are the Town’s “agents”. The court pointed out that in order for the Town to obtain legal advice or to discuss taking action based on that advice, some discussions “will necessarily be outside of direct communications with counsel.” The court therefore held that “when the town manager and members of the select board communicate amongst themselves for the purpose of obtaining legal services, … those communications may be protected by the [Town’s] attorney-client privilege” even if the Town’s attorney is not on the communications.

Next, the court noted that it was not expanding the generally narrow scope of the attorney-client privilege but that, instead, the Town had to show that each of the communications still meets the requirements of that privilege. It observed that the absence of counsel in a communication is one relevant factor. In those circumstances the court held that “the ultimate standard” is “whether the communication revealed legal advice from, or the intent to request legal advice from, an attorney in some fashion.” Examining each email closely the court ruled that four emails met this test. It decided, however, that others did not. The court pointed out that “prior consultation with town counsel on a particular subject does not magically cloak all future discussions among municipal officials on that same issue”. Instead, these emails were “mere deliberations and musings among town officials” about “what to do with the trail” that would not have been privileged “even if town counsel is included.” In a footnote the court observed that “this is not a case where town officials communicated with each other at the behest of counsel to gather more information.”

The court also found that one email refers to information gathered by a town employee at counsel’s request. It held that because the email reveals “town counsel’s mental impressions” it fits within the Town’s separate work product privilege.[1]

One of the Justices also issued a concurring opinion emphasizing that the court’s ruling is consistent with the narrow scope of what is covered by the attorney-client privilege.

This is the first appellate decision that examines in detail the application of these privileges to municipal communications. It is unclear whether any party will seek further appellate review by the Supreme Judicial Court or whether such an application would be granted. Absent that, however, this decision provides important guidance to municipal/school officials regarding what is and is not covered by the attorney-client privilege and by the work product doctrine, both in terms of a public records request and in ensuring that communications will be considered privileged. There are nuances which are likely to vary from case to case and any doubts should be resolved by seeking the advice of counsel.

We are happy to provide advice in these and related areas to public entities and bodies.

[1] The court flatly rejected an argument by the plaintiffs that the Open Meeting Law is a “statutory waiver” of the Town’s attorney-client privilege, finding instead that the Law’s 2010 revision actually “strengthened” the privilege.

This update is provided for informational purposes only and should not be considered legal advice.

COVID-era Public Meeting Flexibilities Expire on March 31, 2025

Temporary provisions pertaining to the Open Meeting Law that were first introduced during COVID are due to expire on March 31, 2025. These temporary provisions allowed public bodies to continue holding meetings remotely without a quorum of the public body physically present at a meeting location, and to provide “adequate, alternative” access to remote meetings.

The temporary provisions contained two primary provisions: (1) allowing public bodies to provide live alternative means of public access to the deliberations of a public body; and (2) allowing members of a public body to continue participating in meetings remotely.

First, the public bodies were allowed to continue providing live “adequate, alternative means” of public access to the deliberations of the public body, instead of holding meetings in a public place that is open and physically accessible to the public. “Adequate, alternative means” include, without limitation, providing public access through telephone, internet, or satellite enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the public body in real time.

Second, any or all members of a public body may continue participating in meetings remotely; the Open Meeting Law’s requirement that a quorum of the body and the chair be physically present at the meeting was suspended until March 31, 2025.

On January 31, 2025, Governor Healey re-filed the Municipal Empowerment Act. The Municipal Empowerment Act proposes to make COVID-era public meeting flexibilities permanent, which would allow local governments to permit hybrid public meetings permanently. Moreover, the Commonwealth will also make new capital resources available to municipalities to help build the infrastructure needed to enable increased access to hybrid public meetings across the state. This Act has not yet passed.

Currently, the temporary provisions allowing public meeting flexibilities are due to expire on March 31, 2025. After this date, meetings will be required to be held in a public place that is open and physically accessible to the public. Moreover, there will be a requirement that a quorum of the body and the chair be physically present at the meeting.

These developments do not affect the use of remote attendance by a member of a public body for the reasons recognized by the Open Meeting Law regulations and based on adoption by the municipality.

This update is provided for informational purposes only and should not be considered legal advice.

VDH Announces New Elevation

Valerio Dominello & Hillman, LLC is pleased to announce that effective January 1, 2025, Attorney Thomas Costello has become an Equity Member in the firm.

Thomas Costello

Thomas H. Costello

VDH recognizes the valuable contributions that Mr. Costello has made to our clients and to our firm.

The bio for Mr. Costello is available on our website, or through the link below the photo above.

Massachusetts DPH Issues Advisory Regarding Administration of Medications by School Nurses During School Trips Outside Massachusetts

On February 4, 2025 the Massachusetts Department of Public Health issued an advisory to all public and private schools regarding the administration of medicines by school nurses during the portion of any school-sponsored trip that occurs outside Massachusetts. The advisory states that 105 CMR 210.000, including the provisions regarding delegation, cannot be used by school nurses “during any part of a school field trip that occurs outside of Massachusetts.” As the advisory reads, it pertains not only to the delegation provisions in 105 CMR 210.004 but also to the epinephrine provisions in 105 CMR 210.100.

Instead, the advisory recommends that schools consult their counsel and regulatory authorities in the applicable location.

We are pleased to provide advice to schools regarding all aspects of school-sponsored trips.

This update is provided for informational purposes only and should not be considered legal advice.

 

U.S. Department of Education’s Office for Civil Rights to Enforce Title IX under 2020 Rule, Which Excludes Gender Identity Protections

The Department of Education through its Office of Civil Rights (“OCR”) has announced in a “Dear Colleague” letter that Title IX will be enforced under the provisions of the 2020 Title IX rule rather than the more recent 2024 Title IX Rule. There are two catalysts for this announcement: a ruling by the Eastern District of Kentucky and President Trump’s Executive Order.

The 2024 Rule had expanded the scope of Title IX’s protection in several respects. On January 9, 2025, the United States District Court for the Eastern District of Kentucky entered an order vacating the 2024 Title IX Rule[1], and prohibiting the Department of Education from enforcing the 2024 Rule in any jurisdiction. Prior to that decision, federal courts in other jurisdictions had enjoined the 2024 Rule, amounting to a prohibition against its enforcement in 26 states. Moreover, according to OCR, every court presented with a challenge to the 2024 Rule has indicated that it is unlawful.

On January 20, 2025, President Trump issued an Executive Order: “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”. This Executive Order directly contravenes the 2024 Rule’s expansive definition of conduct “on the basis of sex” by ordering all agencies and departments within the Executive Branch to “enforce all sex-protective laws to promote [the] reality” that there are “two sexes, male and female,” and that “[t]hese sexes are not changeable and are grounded in fundamental and incontrovertible reality.”

OCR announced that, in its view, the federal court’s decision expressed the proper textual and original meaning of Title IX. Accordingly, OCR does not recognize the expanded meaning of ‘on the basis of sex’ to include ‘gender identity’ as had been recognized in the 2024 Rule.  Likewise, the court rejected the 2024 Rule’s provision that discrimination on the basis of sex also includes discrimination on the basis of sex stereotypes, sex characteristics, and sexual orientation. Moreover, OCR recognizes the President’s interpretation of the law as governing, because he alone controls and supervises subordinate officers who exercise discretionary executive power on his behalf. The Education Department and OCR are subordinate offices of the Executive Branch; therefore, Title IX must be enforced consistent with the executive order.

In light of the federal court decisions and the executive order, the binding regulatory framework for Title IX enforcement includes the principles and provisions of the 2020 Title IX Rule and the longstanding Title IX regulations outlined in 34 C.F.R. 106 et seq., but excludes changes made by the vacated 2024 Rule. Accordingly, open Title IX investigations initiated under the 2024 Rule should be reoriented to comport fully with the requirements of the 2020 Rule.

It is essential to keep in mind that none of this affects the validity and applicability of similar provisions under Massachusetts law and school districts must continue to comply with those requirements.

The consequences of these changes are complicated. It is advisable that school districts confronted by issues falling under Title IX and under related Massachusetts provisions obtain legal advice. This includes decisions by school committees to amend and/or establish policies regarding these questions.

We are happy to advise school committees in these areas and in others.

This update is provided for informational purposes only and should not be considered legal advice.

[1] Tennessee v. Cardona (2025)

Federal Court Overturns Recently Published Title IX Regulations

Earlier this year, the U.S. Department of Education (“DOE”) released new Title IX regulations that went into effect in August 2024. Accordingly, many school committees revised their policies to comply with these new regulations.

On January 9th, a Kentucky federal court issued a ruling holding that the recent Title IX regulations are unlawful and vacated them. At this time, the court nor the DOE have offered any definitive guidance on next steps for K-12 institutions. The vacated regulations included specific protections for members of the LGBTQ+ community – while they are no longer in effect, Massachusetts state laws continue to prohibit discrimination and harassment on the basis of gender identity and sexual orientation. Our office will continue to monitor and provide further developments as they are available.

If you have questions regarding the Title IX regulations or any policies related to discrimination and harassment, please contact any of our attorneys.

This update is provided for informational purposes only and does not include all of the changes in the new regulations.  This update should not be considered legal advice.

Liz Valerio and Nick Dominello Present at 2024 Massachusetts Association of School Committees (“MASC”) and Massachusetts Association of School Superintendents (“MASS”) Annual Joint Conference

On Thursday, November 7, 2024 Liz and Nick presented at the MASC/MASS Annual Joint Conference in Hyannis.  Liz and Nick discussed current trends in collective bargaining.