By Richard Asinof, ConvergenceRI.com
R.I. Attorney General Peter Neronha was in a talkative mood
when he sat down for an interview with ConvergenceRI on Tuesday afternoon, Nov.
26, at his offices on South Main Street in Providence.
In the course of the conversation, Neronha, in lawyerly fashion, often
responded by rephrasing the questions and then answering, and, as appropriate,
asking a follow-up question.
In the course of 40 minutes, Neronha covered a broad range of legal topics and
public health concerns, and weighed in on how he has sought to make changes in
priorities as Attorney General – strengthening environmental enforcement,
expanding how the consumer division engages with the community, pursuing
legislative changes around felony charges for simple possession of narcotics,
and attempting to increase the resources his office has to pursue potential
anti-trust analyses into proposed health system mergers.
Here is the ConvergenceRI interview with R.I. Attorney General Peter Neronha,
who made clear his intention not to have his office function with a bunker
mentality, isolated from the community.
ConvergenceRI: There are a number of lawsuits that have been filed against
drug manufacturing companies and drug distribution firms, by cities and towns
and states. Can you talk about the goals of your lawsuit by the state?
NERONHA: We have filed one lawsuit, but
several companies are named. The goals are two-fold. One is to hold the
companies, and in the case of the Sackler family, individuals, civilly, not
criminally, accountable for the conduct which helped to fuel this opioid
Two is to ensure that [Rhode Island receives] the maximum recovery for the
people of this state, to address the damages caused by the crisis.
I don’t think, at the end of the day, there will ever be enough money to fully
compensate the state for the fallout from this crisis. So, it is a matter of
maximizing the return.
Let’s say, for example, and the Sacklers are a good example, it’s one of the
reasons why I did not agree, as some other Attorneys General did, to a
settlement constructed with the bankruptcy court. [Purdue Pharma filed for
bankruptcy protection this fall as a result of all the pending lawsuits.]
Because a dollar figure, even if it were to reflect on a [programmatic] level
of damages, without being able to put that in context, [in terms of] the
overall profits from the crisis, wouldn’t necessarily in my mind, be doing
So, the two goals are interlinked: holding people accountable, and obtaining
the maximum possible recovery for the state.
ConvergenceRI: One of the things about Rhode Island, depending on which
corporate entity you want to talk about, Purdue Pharma or a more recent
corporate spinoffs, is that Coventry is home to a Purdue facility that
manufactures roughly 750 tons a year of the raw ingredient used in the firm’s
prescription painkillers. [See link below to the ConvergenceRI story, “What
you do not know may kill you, when it comes to painkillers.”]
Could the ownership of that manufacturing facility become part a potential settlement?
NERONHA: That’s a fair question. That’s a
question about how do you satisfy damages.
Let’s say we were to go to trial, and we were to win the case on liability, and
the damages were, pick a number: say “x” billion.
The Sacklers could choose to satisfy that “x” billion, the corporations or the
individuals or both, could choose to satisfy that “x” billion figure, to
satisfy the verdict in any way they wanted. They could sell the property to do
it. They could sell stock to do it. They could use bars of gold from some
hidden vault to do it. It’s not a matter of seizing a particular asset; it is
making sure that they pay the judgment.
Now, if they didn’t pay the judgment, you could seek assets to satisfy the
judgment, but that [remains] several steps down the road. The immediate step is
to establish liability. Or, in the instance of a settlement, to make sure that
it is a fair settlement.
Let’s leave the Sacklers and Purdue out of it, because who knows where that is
going to go. Presumably, as part of the settlement, the [defendants] have
assets to satisfy the judgment. In terms of seizing a particular asset….
ConvergenceRI: Or, shutting it down?
NERONHA: The question is, did oxycodone, or
its ingredients, ever serve as a useful medical purpose. I think most people
would tell you it does, in the right circumstances. The problem here is that it
was used in instances where it served no medical purpose.
I don’t know that shutting down a facility, necessarily, at this point, either
from a public health perspective, or from a satisfying a judgment perspective,
[is the best remedy]
. It is way premature for that.ConvergenceRI: Although you are pursuing the case civilly, are there
criminal liabilities that you could pursue?
NERONHA: Let me put in this way, without
getting into the facts of litigation that are ongoing. If there were room to
make a criminal case against anybody, we’d make it.
If I thought the law supported the facts, I would do it. I think other
Attorneys General around the country would do the same thing.
Maura Healey [the Mass. Attorney General] has not brought a criminal case. Tish
[Letitia] James, [the N.Y Attorney General], hasn’t brought one. Xavier
Becerra, [the Calif. Attorney General], hasn’t brought one. They are the ones,
I would argue, that have been aggressive as anyone.
I think to speculate about what might be a criminal case would be speculating
in a way that is irresponsible. I think the avenue to hold these companies
accountable is through the civil process. That process is ongoing, and we’ll
see where it takes us.
ConvergenceRI: Shifting gears, there is apparently an ongoing investigation
into the way that Medicaid funds went to a doctor in Cranston…
NERONHA: It is not an investigation being
done by this office.
ConvergenceRI: From what I understand, there were subpoenas issued…
NERONHA: By the United States Attorney’s
office, according to public reports.
ConvergenceRI: Is your office involved at all?
NERONHA: No, I am not involved at all in
their investigation. And they were not Medicaid dollars. In fact, those funds
were not funded by Medicaid. Those were state funds that the R.I. General
Assembly authorized to go to this person.
ConvergenceRI: But my understanding is that they were paid through the
NERONHA: But they were not Medicaid funds.
ConvergenceRI: Originally, I believe, they were. They were taken out and
then put back in as state funds, as I understand it.
NERONHA: Put back in as state funds,
No, those are not federal funds. They are not funds allocated through the state
Medicaid program. In fact, they were denied on that basis. And that’s the rub.
The rub here is that state general funds were used to fund treatment that is
not qualified under Medicaid or Medicare as an appropriate treatment.
So, the question is: whether monies distributed by the General Assembly were
appropriate or not as a policy matter. You can’t steal what is given to you
Let’s just be clear about what it is we are talking about. The state allocated
state money to this person. That is a policy decision made by the General
Assembly, whether to do that or not.
Vis-a-vis what we are doing, or not doing, the question for me is: was a crime
committed? There is not an allegation of someone stealing money; that’s money
that should not have been appropriated in the first place. That is, if I may
say so, a political and a policy question, not a criminal justice question.
ConvergenceRI: I had been using that example as an introduction to another
question I had. One problematic issue is the way that Medicaid sets its rates,
particularly with the new state law which gives parity for mental health and
behavior health care.
I keep hearing anecdotal stories that there is a real crisis, according to
recovery community advocates, about how low Medicaid reimbursement rates have
crippled the ability of people to be seen by providers, because either the
providers do not take Medicaid or the rates are so low that providers refuse to
do so, even though there are now parity laws on the books.
I am not sure whether that is a legislative matter. But I would ask that if you
have a law on the books that says you must have parity, but the Medicaid rates
being charged are so low that it prevents people from being able to gain access
to services, is that a legal matter?
NERONHA: Yes. It is something I am concerned
about, that my office is looking at. I’m not prepared to say more than that
right now. Because, look, it’s a complicated issue, as all health care matters
are. So, we are evaluating it. Where it will end up I don’t know.
I’m sensitive to the question, not only because it comes up in the context of
this office but because my wife is a primary care physician. And so, this issue
of parity and reimbursements is something that comes up in her practice as
well. It’s too soon to weigh in heavily on that, but it is a concern to me. All
of health care is.
I think there is, in Rhode Island, generally, a sense, not so much on this
issue, but that this office has a bigger role to play in health care than I
believe it should. I don’t think anybody wants lawyers determining what our
health care policy should be.
I think we have a role to play, under the Hospital Conversion Act, for example,
in terms of evaluating conflicts of interest, in terms of whether to go into a
deal or not, and the disposition of charitable assets. But ultimately, whether
or not two hospitals should merge or two systems should merge, for purposes of
quality, accessibility, affordability, I don’t think we should be making that
And, yet, there seems to be a narrative, in some quarters, that we should be,
and that concerns me, because I do not believe, as I said a minute ago, I don’t
believe that lawyers should be driving our health care decisions. I think that
is something that another part of the executive branch ought to be doing. I am
ConvergenceRI: To be clear, my name is not Ed Achorn [editorial editor
of The Providence Journal], and I am not pushing that agenda.
NERONHA: It’s not just Ed Achorn. It comes
up a lot, people saying, for instance, in the context of St. Joe’s, how can
[former R.I. Attorney General]
Peter Kilmartin have possibly signed off on this
without making sure the pensions were OK.
I am not defending that decision or criticizing it; I’m saying that there is
nothing in the Hospital Conversion Act that says anything about the Attorney
General understanding whether a pension system is where it ought to be, and if
it is not where it ought to be, turning down an attempted conversion.ConvergenceRI: Are there changes in the law, or access to different tools
that you would like to see, as health care becomes more consolidated?
NERONHA: Sure. We are going to have to do
anti-trust reviews at some point. Let’s play out the two most common scenarios.
The first scenario was that Partners gobbles up Care New England and Lifespan.
And that, on its face, did not require anti-trust analysis. We did one
internally, frankly, in the course of beginning to look at that.
And now, you have Lifespan, and Care New England. Well, we clearly would have
to do an anti-trust review there. I’m not saying [such a merger] would violate
the anti-trust laws, either state or federal, but we would have to do an
analysis. You’ve got the two largest players in the state combining [into one
academic medical system].
Let’s assume that that happens, and it passes anti-trust muster, then you’ve
got Partners coming in and possibly taking up that entity. Maybe that is yet
another anti-trust issue.
So, we are going to have to do an anti-trust analysis at some point down the
But here’s the rub. So, why I am bringing that up? Because when we do a
Hospital Conversion Act [review], we are not, internally, in this office,
qualified to do an in-depth, health care conversion analysis without outside
We have to hire experts to be able to do that. So, under the Hospital
Conversion Act, we can hire experts to assist us, but [the cost is] paid for by
the merging parties, or consolidating parties, or converting parties. They pay
for the experts and help us do that critical analysis.
They don’t pay for that analysis in the context of anti-trust.
So, if I have to do an anti-trust analysis today; let’s say, Lifespan and Care
New England had come together, and I had to do an anti-trust analysis, which I
am absolutely convinced I would have to do, I have no means of paying for those
experts. I can’t afford them out of my budget.
Last year, at the end of [the legislative session], the [R.I. General Assembly]
reduced my budget, with about two weeks to go, by about $800,000. And I had to
close that gap; I believe I closed it to about $23,000 in the end.
So, there is no money in my budget to hire experts to do an anti-trust
analysis. What do I need? I need legislation that will fund experts when I need
to do an anti-trust; otherwise I can’t do it.
Here’s how I would have paid for it, though. How would I have done it? Here’s a
question that you haven’t asked, but I will ask and answer it. How would I have
done it? How would I have done it without this legislative change? Given my
record on legislative changes up there, I’m not so confident I’m going to get
Here’s what I would have done. We had $6 million in consumer funds in our
accounts from the Wells Fargo [settlement] and other consumer-related
I would have used that money, because I believe that health care is a consumer
issue. I would have used that money to fund the experts. But the Legislature
took that $6 million out of my budget at the end of the year.
I had a proposal whereby they could take a portion of that and return lawyers
to me to be able to do the kind of work that we need to do in this office. They
didn’t give us the lawyers; they took the money. So, the money that I would
have used to do the anti-trust analysis is now gone.
That’s a real problem in terms of health care, in not having the expert ability
to do the kind of anti-trust analysis we’re going to have to do at some point.
ConvergenceRI: Switching gears, could you talk about your legislative
proposals to change felony drug offenses for simple possession?
NERONHA: We proposed
legislation last year, which you may be familiar with, which would reclassify
possession of a small amount of narcotics of any kind for personal use from a
felony to a misdemeanor. If you were dealing drugs, this would not impact you.
But if you had any kind of narcotic that is for personal use, that would be a
misdemeanor rather than a felony.
[Currently], it’s a felony to possess three grams, five grams, or 10 grams of
cocaine for personal use. I think it is a three-year felony.
I just think that is over-felonizing conduct. Why is that a problem? It’s a
problem when someone is no longer using, and trying to take those steps back,
back into the workforce if they’ve been out of it, back into housing, even
public housing, if they need a place to live.
If you have a felony conviction, it makes all of that much more difficult. It
is putting another roadblock on the path to full recovery. I think that is a
I think it is particularly a mistake when there is no need to felonize the
conduct in the first place. I don’t think it is right as a matter of justice,
as a matter of social policy.
We should be reserving our felony jurisdiction for people who, under some
circumstances, ought to be going to jail.
If you are committing a homicide, or if you’re committing serious bodily
assault, or armed home invasions, or armed robberies, or you are assaulting
children, or if you are committing sexual assaults, sexual assaults of
children, child molestations.
When we are talking about felony misconduct, we ought to be talking about jail
as a real possibility.
I don’t believe anybody who simply possesses drugs for personal use should ever
be in jail. And, the facts back that up, that nobody else thinks that, either.
Because we analyzed all of the cases involving simple possession of fentanyl,
which, I think, all would agree, is the most dangerous drug out there.
Of the 40 cases we found, over I think a four- or five-year period, of simple
possession of fentanyl, one person went to jail for 30 days because they were a
Some other people were [probation] violators; they didn’t go to jail at all.
So, if you take that one person who went to jail for 30 days as an outlier, I
don’t know why that person went [to jail], maybe they frustrated the judge at
that point, maybe they had been given 10 chances at treatment and just ignored
them … I don’t know the circumstances. Put that aside as an outlier.
The other 39 never went to jail at all. They went to diversion. They went to
drug court. They were given a suspended sentence or probation.
My point is, if we’re not sending them to jail anyway, why are we treating this
as a felony. We should treat it as a misdemeanor. Treat it as the public health
issue that it is.
[We should] use the misdemeanor system to encourage people to get into
treatment, to give them court-ordered services, to give them a plan of action
over a period of time.
And eventually, [in our legislation proposal], we went from a one-year
misdemeanor to a two-year misdemeanor.
In part, [we did this] to try to address opposition to the bill, because we
were facing an uphill battle, but also to give a longer glide path to somebody
who is in recovery, or trying to get into recovery, or complete recovery.
We did not get that bill through the legislature last year. I thought that it
was relatively well received by the legislature, certainly by rank and file
members. I think there was a lot of support for it, on both sides of the aisle.
Ultimately, it didn’t get there. There was some pushback from law enforcement.
I respect law enforcement, particularly the police chiefs’ association and many
of their members, whom I have worked with for a long period of time.
I think there are things we can do this year to make the bill more palatable to
them, to perhaps get it across the finish line. I think that would make a big
All that said, there is another way to skin this cat. And, that is, to send
people to felony diversion. What felony diversion does, it’s still a felony,
but they go to our diversion program, and if they complete all of the steps
that they need in the context of that diversion program, then, at the end of
the day, their case is dismissed.
In a sense, assuming that they can get through diversion, they fare better on
the other side, because their case is getting dismissed in its entirety.
There’s no felony; there is no misdemeanor.
The question I get asked sometimes is: Why not put everybody into diversion?
The answer: because not everybody makes it through diversion.
I think [the legislation changing simple possession from a felony to a
misdemeanor] is a good option. We’ll see. We’ll see where it goes next year.
The legislature is always a bit of a wild card in terms of how your bills are
going to do. But I hope to come back with a bill that will have the police
chiefs’ association’s support. We’ll see whether that happens and whether that
will improve the odds.
ConvergenceRI: Once again, switching gears, let’s talk about environmental
crime. There are a series of environmental threats that have been identified,
and it is unclear how the laws are being enforced, such as the problems with
polycyclic aromatic hydrocarbons alleged to be coming from Sprague facilty
located off Allens Avenueue.
There are also continuing reported problems with the firm that is doing metal
recycling. Is there an opportunity for you to be more aggressive in prosecuting
these firms and bringing them into legal compliance, including criminal
NERONHA: When I was a prosecutor here the first time, in the criminal
division, we filed a solid waste case against a trucking company that had
dumped a bunch of dirty fill on a piece of property.
Right now, we don’t have in this state, and I think it’s a problem not yet
resolved, we don’t have the criminal investigative capacity to do environmental
DEM used to have an office of criminal inspection. That division doesn’t exist
any more at DEM.
The first question is, if you are going to [pursue] a criminal case, in
particular, you need investigators, you need someone to go out and take
statements, you need someone to go out and serve subpoenas, you need someone to
go out there and not be afraid, frankly, to walk onto a piece of property and
perhaps get confronted, because sometimes, let’s put it this way, these are
businesses that sometimes can be a little rough and tumble.
ConvergenceRI: I’m shocked, I’m shocked…
NERONHA: So, you
need that investigative capacity, and DEM doesn’t have it any longer.
Is that a role that you could take on, if you had the resources?
NERONHA: We could.
One of the things that we’ve done here with our investigative unit is to try
and hire investigators who can do other missions.
I have brought on an investigator who’s helping us to do
more wage theft. I felt I needed an investigator who could help us with
white-collar crime and, quite frankly, corruption investigations.
In a perfect world, if I had the bandwidth, I would hire
someone who could do environmental work. But the reality is, we also need DEM
there [to serve] as a partner to help us analyze what that work means.
Where conduct is particularly egregious, I think criminal
is something that I would consider.
All that said, there is plenty of work we can do civilly,
and we are doing it. We are doing it in respect to a number of entities here in
the Port of Providence. Frankly, as I say that, I don’t know how much of that
is public and how much isn’t.
But I will tell you that we are engaged with a number of
entities in the Port and outside the Port to bring them into compliance with
the applicable state, and in one instance, federal laws, and we are doing that
without a heckuva lot of help from our federal partners. It’s not really
a surprise, but we are stepping into the breach there.
I don’t know that right now, I can share any results. But we
are very close, I can think of at least two separate entities where we are very
close to putting in place legal obligations that did not exist before, and
And, we are making progress on Rhode Island Recycled Metals,
because that sub is out of the water and being cut up. And that was the first
step to getting to things that are behind the sub that need to be taken out of
the water and cut up.
That has been a slow, painful process, but at least it’s
moving. I have also hired a new chief of the environmental unit, she’s been
here since April, and she’s terrific.
ConvergenceRI: Switching gears again, let me ask about an
issue that has to do with protecting the health of students and teachers, given
the reported conditions in many schools that are “sick” buildings and are
alleged to be causing illnesses.
The first step to determine the extent of the health
problems would be to do an audit of what the actual threat is to teachers and
children attending classes in the schools. Such an audit has apparently never
been undertaken by RIDE; all they would have to do is to ask the R.I.
Department of Health to do an audit.
Is that a legal area that you, as Attorney General, could
consider becoming involved by suggesting an audit of school buildings in the
state to determine what the public health threats to children and teachers are?
NERONHA: In our
capacity as an environmental advocate?
In whatever capacity you may deem appropriate in protecting the citizens of
NERONHA: From a health perspective, obviously, you
have already identified the entity that should be doing that, if that is a
Frankly, I had not heard that, and so we’ll have to go back
and find out what that the basis of that is, because no complaints have been
brought to this office.
ConvergenceRI: Would it be in your capacity to ask Dr.
Nicole Alexander-Scott, the director of the R.I. Department of Health, to
conduct a health audit of public school buildings in Providence? My
understanding is that she cannot act on her own; someone has to ask her and her
department to do an audit.
NERONHA: I find it
stunning that the director of the Department of Health… The Governor can’t ask
her to do it?
ConvergenceRI: The Governor could; the R.I. Department of
Education could, but no one has asked.
[communications director for Attorney General Neronha]
: Did the Governor not do
that as part of her bond issue?
ConvergenceRI: No, not that I am aware of. No one knows, for
instance, if you went into Hope High School, what the exact health threats are.
All of which could be determined by an audit by the Department of Health. The
capability is there, but I have been told that the agency cannot conduct an
audit without being asked to do so.
NERONHA: I’ll talk
to our environmental unit about it.
ConvergenceRI: A health audit of the school buildings would
move it from anecdotal evidence into data and evidence assessing the potential
NERONHA: I don’t
disagree with you at all that this is information worth knowing.
I have to analyze what I am going to do within the context
of what my authority is to do it. I am not the Governor. I can’t pick up the
phone and tell Dr. Nicole Alexander-Scott to do anything. I can’t order her to
ConvergenceRI: As I always ask at the end of every
interview: What haven’t I talked about,
should I have talked about, that you would like to talk about?
I were to lay out what I consider to be things that we are doing here that
haven’t been done before, there are some things that have not been done before
or that we’re doing differently.
What are we doing that we haven’t been doing before? Well,
there was no real environmental enforcement going on at all when I arrived here
[10 months ago]. There wasn’t anyone really charged with doing it.
I haven’t sent out a lot of news releases about what that
is, but I am confident that we are headed in the right direction, we are doing
real things that will impact people’s health in the state in a very positive
That is one significant thing.
There is an underground economy in the state of Rhode
Island, people are misclassified as independent contractors when they are
really employees. That’s cheating workers and it’s cheating the state’s
taxpayers. Because we’re not getting the kind of payroll taxes we should be
getting. [Before me], we were doing none of that work. No one could point to a
case that we’d done, I want to say ever, maybe there had been, but certainly
not in recent memory.
Now, that’s changed; we’ve charged one case, we have others
in the hopper. It’s really important, we only have to charge a certain number,
and we’ll have the deterrence effect.
Also, the way we are engaging the community around us.
It is critical, absolutely critical, that this office, in my
view, cannot be in a bunker. We have to get out into the community and we have
to impact the community, in a positive way.
The best way to do that is not through our criminal justice
enforcement; it’s through using our consumer enforcement powers to help people
who don’t get access to our consumer unit, unless we take it to them.
Our consumer unit is doing a phenomenal job, helping Rhode
Islanders $25 at a time. [They are taking on average 700 phone calls a month.]
And, I know what they are doing, because every time they
help a consumer, I write a letter to that consumer, telling them exactly what
we did for them, and who is their point of contact if there is any additional
problem going forward.
I see the credit reports that are incorrect; I see the extra
$50 on the utility bills I see the person that gets a Miracle Ear and doesn’t
need one, and then is charged $2,300 for a hearing device they don’t need. Time
after time, I see that.
We are helping Rhode Islanders get economic justice that
they can’t get otherwise. And, we are now taking that work into the community;
we are [conducting] office hours on Broad Street.
read the story in its entirety, go to: http://newsletter.convergenceri.com/stories/asked-and-answered,5382
Richard Asinof is the founder and editor of ConvergenceRI, an online
subscription newsletter offering news and analysis at the convergence of
health, science, technology and innovation in Rhode Island.