Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1219 Compare Versions

Only one version of the bill is available at this time.

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2	2	HOUSE DOCKET, NO. 1547 FILED ON: 1/18/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1219
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	John J. Lawn, Jr.
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act enhancing the market review process.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:John J. Lawn, Jr.10th Middlesex1/17/2023Adam Scanlon14th Bristol1/24/2023Smitty Pignatelli3rd Berkshire1/31/2023Lindsay N. Sabadosa1st Hampshire2/2/2023Vanna Howard17th Middlesex2/2/2023Christine P. Barber34th Middlesex2/7/2023 1 of 14
16	16	HOUSE DOCKET, NO. 1547 FILED ON: 1/18/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 1219
18	18	By Representative Lawn of Watertown, a petition (accompanied by bill, House, No. 1219) of
19	19	John J. Lawn, Jr. and others for legislation to enhance the market review process. Health Care
20	20	Financing.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE HOUSE, NO. 4262 OF 2021-2022.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act enhancing the market review process.
29	29	Whereas, The deferred operation of this act would tend to defeat its purpose, which is to
30	30	protect independent community hospitals from unfair competition, therefore it is hereby declared
31	31	to be an emergency law, necessary for the immediate preservation of the public health.
32	32	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
33	33	of the same, as follows:
34	34	1 SECTION 1. Section 16T of chapter 6A of the General Laws is hereby repealed.
35	35	2 SECTION 2. Section 13 of chapter 6D, as appearing in the 2020 Official Edition, is
36	36	3hereby amended by striking out subsection (a) and inserting in place thereof the following
37	37	4subsection:-
38	38	5 (a) Every provider or provider organization shall, before making any material change to
39	39	6its operations or governance structure, submit notice to the commission, the center and the
40	40	7attorney general of such change, not fewer than 60 days before the date of the proposed change. 2 of 14
41	41	8Material changes shall include, but not be limited to: (i) the submission of an application for
42	42	9issuance of a new freestanding ambulatory surgery center license or a clinic license, or a new
43	43	10satellite facility under an existing license; (ii) a corporate merger, acquisition or affiliation of a
44	44	11provider or provider organization and a carrier; (iii) mergers or acquisitions of hospitals or
45	45	12hospital systems; (iv) acquisition of insolvent provider organizations; and (v) mergers or
46	46	13acquisitions of provider organizations which will result in a provider organization having a near-
47	47	14majority of market share in a given service or region.
48	48	15 Within 30 days of receipt of a notice filed under the commission’s regulations, the
49	49	16commission shall conduct a preliminary review to determine whether the material change is
50	50	17likely to result in a significant impact on the commonwealth’s ability to meet the health care cost
51	51	18growth benchmark, established in section 9, or on the competitive market. If the commission
52	52	19finds that the material change is likely to have a significant impact on the commonwealth’s
53	53	20ability to meet the health care cost growth benchmark, or on the competitive market, the
54	54	21commission may conduct a cost and market impact review under this section.
55	55	22 SECTION 3. Subsection (d) of said section 13 of said chapter 6D, as so appearing, is
56	56	23hereby amended by striking out, in line 85, the words “and (xii)” and inserting in place thereof
57	57	24the following words:-
58	58	25 (xii) the inventory of health care resources maintained by the department of public health,
59	59	26pursuant to section 25A of chapter 111, and any related data or reports from the health planning
60	60	27council, as established by section 20; and (xiii).
61	61	28 SECTION 4. Said section 13 of said chapter 6D, as so appearing, is hereby further
62	62	29amended by striking out subsection (e) and inserting in place thereof the following subsection:- 3 of 14
63	63	30 (e) The commission shall make factual findings and issue a preliminary report on the cost
64	64	31and market impact review. In the report, the commission shall identify any provider or provider
65	65	32organization that meets all of the following criteria: (i) the provider or provider organization has,
66	66	33or likely will have, a dominant market share for the services it provides as a result of the
67	67	34proposed material change; (ii) the provider or provider organization charges, or likely will
68	68	35charge, prices for services that are materially higher than the median prices charged by all other
69	69	36providers for the same services in the same market, as a result of the proposed material change;
70	70	37and (iii) the provider or provider organization has, or likely will have, a health status adjusted
71	71	38total medical expense that is materially higher than the median total medical expense for all other
72	72	39providers for the same service in the same market, as a result of the proposed material change.
73	73	40 SECTION 5. Said section 13 of said chapter 6D, as so appearing, is hereby further
74	74	41amended by striking out subsections (g) and (h) and inserting in place thereof the following 2
75	75	42subsections:-
76	76	43 (g) Nothing in this section shall prohibit a proposed material change under subsection (a);
77	77	44provided, however, that any proposed material change shall not be completed: (i) until at least 30
78	78	45days after the commission has issued its final report; and (ii) if the attorney general brings an
79	79	46action as described in subsection (h), while such action is pending and prior to a final judgment
80	80	47being issued by a court of competent jurisdiction.
81	81	48 (h) A provider or provider organization that meets the criteria in subsection (e) shall be
82	82	49presumed to have engaged, or through a material change will engage, in an unfair method of
83	83	50competition or unfair and deceptive trade practice subject to an action brought by the attorney
84	84	51general pursuant to section 4 of chapter 93A; provided, however, a provider or provider 4 of 14
85	85	52organization that meets the criteria of subsection (e) shall not be subject to an action brought
86	86	53pursuant to sections 9 or 11 of said chapter 93A if the sole basis of the action is the fact that the
87	87	54provider meets the criteria in subsection (e). When the commission, under subsection (f), refers a
88	88	55report on a provider or provider organization to the attorney general, the attorney general may
89	89	56take action under said chapter 93A or any other law to protect consumers in the health care
90	90	57market. The commission’s final report may be evidence in any such action.
91	91	58 SECTION 6. Said section 13 of said chapter 6D is hereby further amended by adding the
92	92	59following subsection:-
93	93	60 (l) Upon issuance of its final report pursuant to subsection (f), the commission shall
94	94	61provide a copy of said final report to the department of public health, which shall be included in
95	95	62the written record and considered by the department of public health during its review of an
96	96	63application for determination of need.
97	97	64 SECTION 7. Said chapter 6D is hereby further amended by adding the following
98	98	65section:-
99	99	66 Section 22. (a) There is hereby established within the commission a health planning
100	100	67council, consisting of the executive director of the health policy commission who shall serve as
101	101	68chair, the secretary of health and human services or a designee, the commissioner of public
102	102	69health or a designee, the director of the office of Medicaid or a designee, the commissioner of
103	103	70mental health or a designee, the commissioner of insurance or a designee, the secretary of elder
104	104	71affairs or a designee, the executive director of the center for health information and analysis or a
105	105	72designee, and 3 members appointed by the governor, 1 of whom shall be a health economist, 1 of 5 of 14
106	106	73whom shall have experience in health policy and planning and 1 of whom shall have experience
107	107	74in health care market planning and service line analysis.
108	108	75 (b)(1) The council shall develop a state health plan to identify: (i) the anticipated needs of
109	109	76the commonwealth for health care services, providers, programs and facilities; (ii) the existing
110	110	77health care resources available to meet those needs; (iii) the projected resources necessary to
111	111	78meet those anticipated needs; and (iv) the priorities for addressing those needs.
112	112	79 (2) The state health plan developed by the council shall include the location, distribution
113	113	80and nature of all health care resources in the commonwealth and shall identify certain categories
114	114	81of health care resources, including: (i) acute care units; (ii) non-acute care units; (iii) specialty
115	115	82care units, including, but not limited to, burn, coronary care, cancer care, neonatal care, post-
116	116	83obstetric and post-operative recovery care, pulmonary care, renal dialysis and surgical, including
117	117	84trauma and intensive care units; (iv) skilled nursing facilities; (v) assisted living facilities; (vi)
118	118	85long-term care facilities; (vii) ambulatory surgical centers; (viii) office-based surgical centers;
119	119	86(ix) urgent care centers; (x) home health; (xi) adult and pediatric behavioral health and mental
120	120	87health services and supports; (xii) substance use disorder treatment and recovery services; (xiii)
121	121	88emergency care; (xiv) ambulatory care services; (xv) primary care resources; (xvi) pediatric care
122	122	89services; (xvii) pharmacy and pharmacological services; (xviii) family planning services; (xix)
123	123	90obstetrics and gynecology and maternal health services; (xx) allied health services including, but
124	124	91not limited to, optometric care, chiropractic services, oral health care and midwifery services;
125	125	92(xxi) federally qualified health centers and free clinics; (xxii) numbers of technologies or
126	126	93equipment defined as innovative services or new technologies by the department of public health
127	127	94pursuant to section 25C of chapter 111; (xxiii) hospice and palliative care service; and (xxiv)
128	128	95health screening and early intervention services. 6 of 14
129	129	96 (3) The state health plan shall also make recommendations for the appropriate supply and
130	130	97distribution of resources, programs, capacities, technologies and services identified in paragraph
131	131	98(2) on a state-wide or regional basis based on an assessment of need for the next 5 years and
132	132	99options for implementing such recommendations. The recommendations shall reflect, at a
133	133	100minimum, the following goals: (i) to maintain and improve the quality of health care services;
134	134	101(ii) to support the commonwealth’s efforts to meet the health care cost growth benchmark
135	135	102established pursuant to section 9; (iii) to support innovative health care delivery and alternative
136	136	103payment models as identified by the commission; (iv) to reduce unnecessary duplication; (v) to
137	137	104address disparities in the health care system based on the needs of particular demographic
138	138	105factors, including, but not limited to, race, ethnicity, immigration status, sexual orientation,
139	139	106gender identity, geographic location, age, language spoken, ability and socioeconomic status;
140	140	107(vi) to support efforts to integrate oral health, mental health, behavioral and substance use
141	141	108disorder treatment services with overall medical care; (vii) to reflect the latest trends in
142	142	109utilization and support the best standards of care; and (viii) to rationally and equitably distribute
143	143	110health care resources across geographic regions of the commonwealth based on the needs of the
144	144	111population on a statewide basis, as well as the needs of particular demographic factors,
145	145	112including, but not limited to, race, ethnicity, immigration status, sexual orientation, gender
146	146	113identity, geographic location, age, language spoken, ability and socioeconomic status.
147	147	114 (c) The council shall provide direction to the department of public health to establish and
148	148	115maintain on a current basis an inventory of all such health care resources together with all other
149	149	116reasonably pertinent information concerning such resources. Agencies of the commonwealth that
150	150	117license, register, regulate or otherwise collect cost, quality or other data concerning health care
151	151	118resources shall cooperate with the council and the department of public health in coordinating 7 of 14
152	152	119such data and information collected pursuant to this section and section 25A of chapter 111. The
153	153	120inventory compiled pursuant to this section and said section 25A of said chapter 111 and all
154	154	121related information shall be maintained in a form usable by the general public and shall
155	155	122constitute a public record; provided, however, that any item of information which is confidential
156	156	123or privileged in nature under any other law shall not be regarded as a public record pursuant to
157	157	124this section.
158	158	125 (d) The council shall establish an advisory committee of not more than 15 members who
159	159	126shall reflect a broad distribution of diverse perspectives on the health care system, including
160	160	127health care providers and provider organizations, public and private third-party payers, consumer
161	161	128representatives and labor organizations representing health care workers. Not fewer than 2
162	162	129members of the advisory committee shall have expertise in rural health matters and rural health
163	163	130needs in the commonwealth. The advisory committee shall review drafts and provide
164	164	131recommendations to the council during the development of the state health plan described in
165	165	132subsection (b).
166	166	133 (e) Annually, the council, in consultation with the commission and the department of
167	167	134public health, shall conduct at least 4 public hearings, in geographically diverse areas throughout
168	168	135the commonwealth, during the development of the state health plan and shall give interested
169	169	136persons an opportunity to submit their views orally and in writing. In addition, the commission
170	170	137may create and maintain a website to allow members of the public to submit comments
171	171	138electronically and review comments submitted by others. 8 of 14
172	172	139 (f) The council shall publish analyses, reports and interpretations of information collected
173	173	140pursuant to this section to promote awareness of the distribution and nature of health care
174	174	141resources in the commonwealth.
175	175	142 (g) The council shall file annually an interim report by July 1 and annually a final report
176	176	143by January 1 with the joint committee on health care financing concerning the activities of the
177	177	144council in general and, in particular, describing the progress to date in developing the state health
178	178	145plan and recommending such further legislative action as it considers appropriate.
179	179	146 SECTION 8. Section 11N of chapter 12 of the General Laws, as appearing in the 2020
180	180	147Official Edition, is hereby amended by striking out subsection (b) and inserting in place thereof
181	181	148the following new subsection:-
182	182	149 (b) The attorney general may, upon a referral by the health policy commission pursuant
183	183	150to section 13 of chapter 6D, investigate and bring any appropriate action, including for injunctive
184	184	151relief, as may be necessary pursuant to chapter 93A or any other law, to restrain unfair methods
185	185	152of competition or unfair and deceptive trade practices by a provider or provider organization.
186	186	153 SECTION 9. The first paragraph of section 25A of chapter 111 of the General Laws, as
187	187	154so appearing, is hereby amended by striking out the first sentence and inserting in place thereof
188	188	155the following sentence:- Under the direction of the health planning council established in section
189	189	15622 of chapter 6D, the department shall establish and maintain, on a current basis, an inventory of
190	190	157all health care resources together with all other reasonably pertinent information concerning such
191	191	158resources, in order to identify the location, distribution and nature of all such resources in the
192	192	159commonwealth. 9 of 14
193	193	160 SECTION 10. Said section 25A of said chapter 111, as so appearing, is hereby further
194	194	161amended by striking out, in lines 17 and 18, the words “in a designated office of the department”
195	195	162and inserting in place thereof the following words:- as determined by the health planning council
196	196	163established in section 22 of chapter 6D.
197	197	164 SECTION 11. Said section 25A of said chapter 111, as so appearing, is hereby further
198	198	165amended by striking out the fourth paragraph.
199	199	166 SECTION 12. Section 25C of said chapter 111, as so appearing, is hereby amended by
200	200	167striking out subsection (g) and inserting in place thereof the following subsection:-
201	201	168 (g) The department, in making any determination of need, shall be guided by the state
202	202	169health plan and the state health resources inventory established in section 20 of chapter 6D, and
203	203	170shall encourage appropriate allocation of private and public health care resources and the
204	204	171development of alternative or substitute methods of delivering health care services so that
205	205	172adequate health care services will be made reasonably available to every person within the
206	206	173commonwealth at the lowest reasonable aggregate cost. The department shall use data from the
207	207	174center for health information and analysis and information and the report on the cost and market
208	208	175impact review delivered by the health policy commission pursuant to subsection (l) of section 13
209	209	176of chapter 6D, and shall take into account any comments from any other state agency or entity,
210	210	177and may impose reasonable terms and conditions as the department determines are necessary to
211	211	178achieve the purposes and intent of this section. The department may also recognize the special
212	212	179needs and circumstances of projects that: (i) are essential to the conduct of research in basic
213	213	180biomedical or health care delivery areas or to the training of health care personnel; (ii) are
214	214	181unlikely to result in any increase in the clinical bed capacity or outpatient load capacity of the 10 of 14
215	215	182facility; and (iii) are unlikely to cause an increase in the total patient care charges of the facility
216	216	183to the public for health care services, supplies and accommodations, as such charges shall be
217	217	184defined from time to time in accordance with section 5 of chapter 409 of the acts of 1976.
218	218	185 SECTION 13. Said section 25C of said chapter 111, as so appearing, is hereby further
219	219	186amended by striking out subsection (i) and inserting in place thereof the following subsection:-
220	220	187 (i) Except in the case of an emergency situation determined by the department as
221	221	188requiring immediate action to prevent further damage to the public health or to a health care
222	222	189facility, the department shall not act upon an application for such determination unless: (i) the
223	223	190application has been on file with the department for at least 30 days; (ii) the center for health
224	224	191information and analysis, the health policy commission, the state and appropriate regional
225	225	192comprehensive health planning agencies and, in the case of long-term care facilities only, the
226	226	193department of elder affairs, or in the case of any facility providing inpatient services for the
227	227	194mentally ill or developmentally disabled, the departments of mental health or developmental
228	228	195services, respectively, have been provided copies of such application and supporting documents
229	229	196and given reasonable opportunity to supply required information and comment on such
230	230	197application; and (iii) a public hearing has been held on such application when requested by the
231	231	198applicant, the state or appropriate regional comprehensive health planning agency, any 10
232	232	199taxpayers of the commonwealth and any other party of record as defined in section 25C¼. If, in
233	233	200any filing period, an individual application is filed, which would implicitly decide any other
234	234	201application filed during such period, the department shall not act only upon an individual.
235	235	202 SECTION 14. Said chapter 111, as so appearing, is hereby further amended by inserting
236	236	203after section 25C, the following new section:- 11 of 14
237	237	204 Section 25C¼. (a) For the purposes of this section, the following words shall, unless the
238	238	205context clearly requires otherwise, have the following meanings:
239	239	206 “Independent community hospital”, any hospital that has been: (i) designated by the
240	240	207health policy commission as an independent community hospital for the year in which an
241	241	208application for a determination of need is filed; or (ii) qualified in the year 2021 as an eligible
242	242	209hospital as defined in subsection (d) of section 63 of chapter 260 of the acts of 2020.
243	243	210 “Party of record”, an applicant for a determination of need; the attorney general; the
244	244	211center for health information and analysis; the health policy commission; any government
245	245	212agency with relevant oversight or licensure authority over the proposed project or components
246	246	213therein; any 10 taxpayers of the commonwealth; or an independent community hospital whose
247	247	214primary service area overlaps with the primary service area of the applicant’s proposed project.
248	248	215A party of record may review an application for determination of need as well as provide written
249	249	216comment for consideration by the department.
250	250	217 “Primary service area”, the contiguous geographic area from which a health care facility
251	251	218draws 75 per cent of its commercial discharges, as measured by the zip codes closest to the
252	252	219facility by drive time, and for which the facility represents a minimum proportion of the total
253	253	220discharges in a zip code, as determined by the department in consultation with the health policy
254	254	221commission and based on the best available data using a methodology determined by the
255	255	222department in consultation with the health policy commission.
256	256	223 “Proposed project”, a project for the construction of a freestanding ambulatory surgery
257	257	224center for which a notice of determination of need is a prerequisite of licensure. 12 of 14
258	258	225 (b) For any application for a determination of need for which the primary service area of
259	259	226the proposed project overlaps with the primary service area of an existing independent
260	260	227community hospital, the applicant shall obtain and include in such application a letter of support
261	261	228from the independent community hospital’s chief executive officer and board chair; provided,
262	262	229however, that a proposed project that constitutes a joint venture between the applicant and the
263	263	230independent community hospital shall be exempt from this subsection. The department shall
264	264	231conduct a preliminary review of each application to determine compliance with this subsection.
265	265	232If the department determines that an application is not in compliance, the department shall
266	266	233identify to the applicant any independent community hospital whose support is required by this
267	267	234subsection, and dismiss said application without prejudice. If the department fails to conduct a
268	268	235preliminary review of an application or fails to dismiss an application that does not satisfy the
269	269	236requirements of this subsection, the independent community hospital whose primary service area
270	270	237overlaps with the primary service area of the proposed project may, within a reasonable period of
271	271	238time, bring a civil action in the nature of mandamus in the superior court to require the
272	272	239department to act in accordance with this subsection.
273	273	240 SECTION 15. Section 25F of said chapter 111, as so appearing, is hereby amended by
274	274	241inserting after the word “care”, in line 7, the following word:- financing.
275	275	242 SECTION 16. Section 25G of said chapter 111, as so appearing, is hereby amended by
276	276	243inserting after the word “agency”, in line 3, the following words:- , an independent community
277	277	244hospital, as defined by section 25C¼, whose primary service area overlaps with the primary
278	278	245service area of a proposed project under said section 25C¼. 13 of 14
279	279	246 SECTION 17. (a) Notwithstanding any general or special law, rule or regulation to the
280	280	247contrary, an applicant for a determination of need whose filing date of such application precedes
281	281	248the effective date of this act shall be required to submit a notice of a material change pursuant to
282	282	249section 13 of chapter 6D of the General Laws if the holder of the determination of need is subject
283	283	250to the requirements of said section 13 of said chapter 6D as amended by this act.
284	284	251 (b) Notwithstanding any general or special law, rule or regulation to the contrary, any
285	285	252determination of need issued to a holder that is subject to a cost and market impact review
286	286	253pursuant to said section 13 of said chapter 6D shall not go into effect until 30 days following the
287	287	254issuance of a final report on the cost and market impact review by the health policy commission.
288	288	255 SECTION 18. Notwithstanding any general or special law, rule or regulation to the
289	289	256contrary, the health planning council established in section 13 of chapter 16D of the General
290	290	257Laws shall submit a state health plan to the governor and the general court, as required by section
291	291	25822 of chapter 6D of the General Laws, on or before January 1, 2024.
292	292	259 SECTION 19. Notwithstanding any general or special law to the contrary, there shall be a
293	293	260task force to study and provide recommendations regarding the financing of the health policy
294	294	261commission, established in section 2 of chapter 6D of the General Laws.
295	295	262 The task force shall examine the funding sources and assessment algorithm to ensure a
296	296	263sustainable and equitable funding stream for the work of the health policy commission. The
297	297	264study shall include, but not be limited to, reviewing the existing funding mechanisms, identifying
298	298	265additional funding needs, considering additional healthcare stakeholders for whom it may be
299	299	266appropriate to assess and exploring other funding streams. The task force shall engage relevant 14 of 14
300	300	267stakeholders, including, but not limited to, acute hospitals, ambulatory surgical centers and
301	301	268surcharge payors.
302	302	269 The task force shall consist of 5 members: the chairs of the joint committee on health care
303	303	270financing, who shall serve as co-chairs; the secretary of health and human services or a designee;
304	304	271the executive director of the health policy commission or a designee; and the executive director
305	305	272of the center for health information and analysis or a designee.
306	306	273 The task force shall report its findings, along with any recommendations, to the clerks of
307	307	274the house of representatives and senate no later than January 1, 2024.