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HOUSE DOCKET, NO. 731 FILED ON: 1/17/2023
HOUSE . . . . . . . . . . . . . . . No. 1963
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
James Arciero
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act to promote high value and evidence-based behavioral health care.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:James Arciero2nd Middlesex1/11/2023 1 of 12
HOUSE DOCKET, NO. 731 FILED ON: 1/17/2023
HOUSE . . . . . . . . . . . . . . . No. 1963
By Representative Arciero of Westford, a petition (accompanied by bill, House, No. 1963) of
James Arciero for legislation to promote high value and evidence-based behavioral health care.
Mental Health, Substance Use and Recovery.
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act to promote high value and evidence-based behavioral health care.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Chapter 6A of the General Laws is hereby amended by inserting after
2Section 18Z the following new section:
3 Section 19. The executive office of health and human services shall coordinate an
4interagency statewide planning committee to annually study the need for behavioral health care
5services across the commonwealth, beginning with inpatient psychiatric units and department of
6mental health beds. The study shall utilize data collected from census reporting by inpatient
7facilities and data collected through the expedited psychiatric admissions process. The study
8shall identify the total number of units currently in operation in the commonwealth by
9geographic region, including capacity to serve special populations, which shall include but not be
10limited to: children; geriatric patients; individuals with autism spectrum disorder, intellectual
11disabilities, and developmental disabilities; individuals with co-occurring substance use disorder;
12individuals with co-occurring medical conditions; individuals who present with high level of 2 of 12
13acuity, including severe behavior and assault risk; and individuals with eating disorders. The
14study shall estimate the need for total units/beds by geographic region, estimate the need for
15special population capacity by geographic region, and estimate the cost to operate each unit at
16the needed capacity. The committee should consult with stakeholders on performing this analysis
17and on developing recommendations for how to achieve the needed services and capacity. The
18committee shall publish an annual report by December 31 of each year that includes
19recommendations for reducing boarding in the emergency departments, and any suggested
20legislation to implement those recommendations and shall submit a copy the to the joint
21committee on mental health, substance use and recovery and the joint committee on health care
22financing.
23 SECTION 2. Chapter 6A of the General Laws is hereby amended by inserting after
24Section 19 the following new section:
25 Section 19A. The executive office shall convene a special commission charged with
26expanding access to specialty behavioral health care inpatient beds for adults and youth,
27addressing funding for said beds and making recommendations for a potential rate structure to
28fund high intensity specialty behavioral health beds.
29 The commission shall consist of the following members or their designees: the
30commissioner of the department of mental health, who shall serve as chair; the commissioner of
31the department of public health; the commissioner of the division of insurance; the director of the
32bureau of substance addiction services within the department of public health; the assistant
33secretary for MassHealth; the executive director of the group insurance commission; the
34executive director of the health policy commission; the executive director of the center for health 3 of 12
35information and analysis; and 6 members to be appointed by the chair: 1 of whom shall be a
36representative of the Association for Behavioral Healthcare, Inc.; 1 of whom shall be a
37representative of the Massachusetts Association of Behavioral Health Systems, Inc.; 1 of whom
38shall be a representative of the Massachusetts Health and Hospital Association; 1 of whom shall
39be a representative of the Massachusetts Association for Mental Health, Inc.; 1 of whom shall be
40a representative of Blue Cross and Blue Shield of Massachusetts, Inc.; and 1 of whom shall be a
41representative of the Massachusetts Association of Health Plans, Inc..
42 The commission’s review shall include, but not be limited to: (i) data collected through
43the EPIA program, or other sources on the availability of specialty behavioral health inpatient
44beds; (ii) data on the populations that are more likely to face longer wait times, which may
45include but not be limited to specialty beds to treat adults and youth with autism spectrum
46disorder, specialty beds to treat adults and youth with higher levels of acuity, specialty beds to
47treat adults and youth with developmental disabilities, specialty beds to treat adults and youth
48with aggressive behavior, and specialty beds to treat adults and youth with complex medical
49needs; (iii) data on the number of beds to serve the populations listed in (ii), including the
50difference between the differences between licensed and operational beds and the reasons for any
51differences; (iv) how services are funded today, including payer mix and payment models
52utilized; (v) the feasibility of developing alternative payment models, including global payments,
53bundled payments, or payments based on risk adjustment and predictive modeling to ensure that
54services are funded based on the population served; and (vi) the feasibility of developing a multi-
55payer equitable rate structure designed to fund and ensure an adequate supply of high intensity
56specialty behavioral health beds in the commonwealth. 4 of 12
57 Not later than 1 year after the effective date of this act, the commission shall submit its
58findings and recommendations, together with drafts of legislation or regulations necessary to
59carry those recommendations into effect, to the clerks of the senate and house of representatives
60and the joint committee on mental health, substance use and recovery.
61 SECTION 3. Section 15 of Chapter 6D of the General Laws is hereby amended by
62striking paragraph (b) in its entirety and replace it with the following new language:-
63 (b) The commission shall establish minimum standards for certified ACOs. A certified
64ACO shall: (i) be organized or registered as a separate legal entity from its ACO participants; (ii)
65have a governance structure that includes an administrative officer, a medical officer, and patient
66or consumer representation; (iii) receive reimbursements or compensation from alternative
67payment methodologies; (iv) have functional capabilities to coordinate financial payments
68amongst its providers; (v) have significant implementation of interoperable health information
69technology, as determined by the commission, for the purposes of care delivery coordination and
70population management; (vi) develop and file an internal appeals plan as required for risk-
71bearing provider organizations under section 24 of chapter 176O; provided, that said plan shall
72be approved by the office of patient protection; provided further, that the plan shall be a part of a
73membership packet for newly enrolled individuals; (vii) provide medically necessary services
74across the care continuum including behavioral and physical health services, as determined by
75the commission through regulations, internally or through contractual agreements; provided, that
76any medically necessary service that is not internally available shall be provided to a patient
77through services outside the ACO; (viii) develop guidelines for the delivery of evidence-based
78delivery of behavioral health services, including but not limited to, 24/7 access to treatment and
79services, 24/7 admissions and discharges, treatment and discharge planning, adherence to 5 of 12
80evidence-based standards of care, compliance with quality and outcome measures, and
81communication and coordination with all treating providers and payers; (ix) implement systems
82that allow ACO participants to report the pricing of services, as defined by the commission
83through regulations; further provided that ACO participants shall have the ability to provide
84patients with relevant price information when contemplating their care and potential referrals; (x)
85submit a report to the commission detailing the percentage of total health care expenditures that
86are paid to behavioral health providers; (xi) obtain a risk certificate from the division of
87insurance under chapter 176U; and (xii) shall engage patients in shared decision-making,
88including, but not limited to, shared-decision making on palliative care and long-term care
89services and supports.
90 SECTION 4. Said Chapter 6D of the General Laws is hereby amended by inserting after
91Section 19 the following new section:-
92 Section 20. Study on Evidence-Based Practice.
93 The commission, in consultation with the center for health information and analysis, the
94department of public health, and the department of mental health, shall conduct a study on the
95variation of the practice of behavioral health providers in the commonwealth, across the full
96continuum of care, and shall issue a report, not later than December 31, 2018. The review shall
97be posted on the commission’s website and shall be filed with the clerks of the house of
98representatives and the senate, and the joint committee on mental health and substance abuse.
99 In measuring adherence to evidence-based standards, the analysis shall include, but not
100be limited to: (i) adherence to evidence-based standards of care, as appropriate for each level of
101care, (ii) performance on quality and outcome measures, and (iii) patient access to appropriate 6 of 12
102discharge planning and transitions throughout the full continuum of care. The report shall include
103an examination of any gaps in the availability of data, quality metrics, or other means of
104measuring provider performance related to outcomes and quality. The report shall make
105recommendations for improving the availability of data collection and the measurement of
106behavioral health quality and outcomes, and recommendations related to improving quality and
107outcomes for patients.
108 SECTION 5. Chapter 19 of the General Laws is hereby amended by inserting after
109section 19, the following new section:-
110 Section 19A. Requirements for licensed facilities
111 (a) The department shall establish clinical competencies and additional operational
112standards for care and treatment of patients admitted to facilities licensed pursuant to 104 CMR
11327.00, including for specialty populations identified by the department. Clinical competencies
114and operational standards established by the Department shall incorporate national and local
115standards of practice where such standards of practice exist, and to the extent deemed
116appropriate by the Department. In establishing the clinical competencies, the department shall
117utilize all data collected to identify the needs of the commonwealth and consult with relevant
118stakeholders, including but not limited to, inpatient psychiatric facilities, emergency
119departments, emergency service providers, Medicaid managed care organizations, and
120commercial carriers. The department shall update the clinical competencies on a biennial, or as
121needed basis.
122 (b) The department shall issue regulations requiring free-standing facilities licensed
123pursuant to 104 CMR 27.00 to have a clinical affiliation with a medical facility to ensure access 7 of 12
124by patients to medical services. Such affiliation shall include, but not be limited to patient care,
125testing, and patient diagnostics.
126 (c) The department shall develop requirements for reporting of quality and outcome
127measures by facilities to ensure compliance with this section.
128 (d) The department shall promulgate regulations to enforce the requirements of this
129section and shall require hospitals to provide remedies for any failure to meet the requirements of
130said regulations. Remedies may include remediation plans or financial penalties. The amount of
131any penalty imposed shall be $100 for each day in the noncompliance period with respect to each
132patient to whom such failure relates; provided however that the maximum annual penalty under
133this subsection shall be $500,000.
134 SECTION 6. Chapter 19 of the General Laws is hereby amended by inserting after
135section 19A, the following new section:-
136 Section 19B.
137 (a) The department shall promulgate regulations instituting a policy to prohibit a facility
138from refusing to admit a patient who meets the general admission criteria for the facility,
139including all clinical competencies, pursuant to Section 19A of this chapter, where such
140admission would not result in a census exceeding the facility’s operational capacity.
141 (b) The department shall require facilities to collect and report data to the department on
142the facility’s total number of admission requests, admissions, admission denials, and the reasons
143for the rejected admissions. 8 of 12
144 (c) A facility may deny admission to a patient whose needs have been determined by the
145facility medical director to exceed the facility's capability at the time admission is sought. The
146determination shall include the factors justifying denial of admission and why mitigating efforts,
147such as utilization of additional staff, would have been inadequate to admit the patient. This
148determination must be recorded in writing. The facility shall submit a monthly report to the
149Department detailing the number of admissions that have been denied by the facility and the
150reasons for such denials; provided however, that such written determination shall not contain
151patient-identifiable information.
152 (d) Facilities shall keep data on patients referred for admission in a form and format and
153containing data elements as determined by the Department; provided however, that facilities
154shall not be required to maintain patient-identifiable data on individuals not accepted for
155admission. The department shall require that facilities report said data to the department on a
156monthly basis.
157 (e) The department shall promulgate regulations to enforce the requirements of this
158section and shall require facilities to provide remedies for any failure to meet the requirements of
159said regulations. Remedies may include remediation plans or financial penalties. The amount of
160any penalty imposed shall be $100 for each day in the noncompliance period with respect to each
161patient to whom such failure relates; provided however that the maximum annual penalty under
162this subsection shall be $500,000.
163 SECTION 7. Section 25C of Chapter 111 is hereby amended by striking paragraph (k) in
164its entirety and replacing it with the following new language: 9 of 12
165 (k) Determinations of need shall be based on the written record compiled by the
166department during its review of the application and on such criteria consistent with sections 25B
167to 25G, inclusive, as were in effect on the date of filing of the application. In compiling such
168record the department shall confine its requests for information from the applicant to matters
169which shall be within the normal capacity of the applicant to provide. In reviewing an
170application, the department shall take into consideration the report of the statewide planning
171committee pursuant to section 19 of chapter 6A of the general laws. In each case the action by
172the department on the application shall be in writing and shall set forth the reasons for such
173action; and every such action and the reasons for such action shall constitute a public record and
174be filed in the department.
175 SECTION 8. Section 25C of Chapter 111 of the General Laws is amended by inserting
176after the first paragraph the following new paragraph:
177 The Department, working with the department of mental health, shall conduct a statewide
178planning initiative for the purposes of studying and coordinating the availability and delivery of
179acute inpatient psychiatric beds across the commonwealth. The initiative shall utilize data
180collected through the expedited psychiatric inpatient admissions program, from the department
181of mental health pursuant to section 19B of chapter 19 of the general laws, from the center for
182health information and analysis, and other data collected by the department. The department
183shall analyze the number of individuals who are waiting for placement, including the patient
184demographic information, geographic disparities, the diagnosis, the types of services that such
185patients need, and identify gaps in the supply of licensed and operational psychiatric beds. The
186department shall consider this analysis when making determinations of need pursuant to this
187section. 10 of 12
188 The department shall publish an annual acute psychiatric inpatient bed report by
189December 31 of each year that identifies the types of and location of services that are in need and
190where may be oversupply of services. A copy of the report shall be provided to the health policy
191commission, the joint committee on mental health substance use and recovery and the joint
192committee health care financing.
193 SECTION 9. Chapter 111 of the General Laws is hereby amended by adding after section
19451K the following new section:
195 Section 51L. Standards for Delivery of Behavioral Health Care in Hospitals
196 (a) For the purposes of this section, the following words shall have the following
197meanings: -
198 ''Acute-care hospital'', any hospital licensed under section 51 that contains a majority of
199medical-surgical, pediatric, obstetric, and maternity beds, as defined by the department, and the
200teaching hospital of the University of Massachusetts Medical School.
201 (b) An acute-care hospital or a satellite emergency facility (hereinafter “facility”) shall
202ensure that all policies and protocols developed by the facility shall be applied and implemented
203on a nondiscriminatory basis such that such policies and protocols do not discriminate between
204patients presenting with a mental health or substance use condition and those patients with
205presenting with a medical/surgical condition.
206 (c) An acute-care hospital or a satellite emergency facility shall annually review its
207policies and procedures to ensure that such policies and procedures do not discriminate between
208patients presenting with a mental health or substance use condition and those patients with 11 of 12
209presenting with a medical/surgical condition and are applied and implemented on a
210nondiscriminatory basis. Following the review, the acute-care hospital or a satellite emergency
211facility must submit a certification to the department of public health and the department of
212mental health signed by the hospital’s chief executive officer and chief medical officer that states
213that the hospital has completed a comprehensive review of the policies and procedures of the
214hospital for the preceding calendar year for compliance with this section and any accompanying
215regulations.
216 (d) As part of the review outlined in the preceding paragraph, an acute-care hospital or a
217satellite emergency facility shall review its policies and procedures in the following areas:
218 1. Administrative policies and procedures, which may include but not be limited to,
219acquiring and maintaining equipment, policies on vendor requirements, licensing and credentials,
220and records requirements.
221 2. Operational policies and procedures, which may include, but not be limited to,
222information technology, physical plant maintenance, safety and security, food preparation,
223emergency management/disaster plans, and milieu.
224 3. Patient care policies and procedures, which may include, but not be limited to,
225patient admission and discharge policies and decision-making, patient flow policies, patient
226discharge planning, consultation, clinical competencies, charting processes, and patient rights,
227patient and staff security, and infection prevention.
228 4. Medication policies and procedures, which may include, but not be limited to,
229paperwork requirements for medicine, inventory control, dose distribution systems, and
230disposing of expired drugs. 12 of 12
231 5. Human Resources and Staffing policies and procedures, which may include, but
232not be limited to, staff hiring decisions, training, patient care ratios, scheduling, staffing for
233emergency management/disaster plans
234 6. Payment and Financial policies and procedures, which may include, but not be
235limited to, investment and resource allocation, billing and payment policies, and staff salaries
236and reimbursement.
237 (e) The department, in conjunction with the department of mental health, shall establish a
238process by which complaints regarding alleged non-compliance with the requirements of this
239section may be submitted. The department must provide a telephone number and address to be
240used to submit complaints, a standard form that can be used to submit complaints, and timeline
241for resolving the complaints. The department shall publish the information on its website to
242notify individuals how to submit a complaint to the department.
243 (f) The department, in conjunction with the department of mental health, shall promulgate
244regulations necessary to carry out this section, including the development of reporting
245procedures and a standard format for facility self-reporting.