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SENATE DOCKET, NO. 1474 FILED ON: 1/19/2023
SENATE . . . . . . . . . . . . . . No. 1248
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Cindy F. Friedman
_________________
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 increase investment in behavioral health care in the Commonwealth.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :Cindy F. FriedmanFourth Middlesex 1 of 14
SENATE DOCKET, NO. 1474 FILED ON: 1/19/2023
SENATE . . . . . . . . . . . . . . No. 1248
By Ms. Friedman, a petition (accompanied by bill, Senate, No. 1248) of Cindy F. Friedman for
legislation to increase investment in behavioral health care in the Commonwealth. Mental
Health, Substance Use and Recovery.
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 1287 OF 2021-2022.]
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act to increase investment in behavioral health care in the Commonwealth.
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. Section 1 of chapter 6D of the General Laws, as appearing in the 2020
2Official Edition, is hereby amended by inserting after the definition of “After-hours care” the
3following definitions:-
4 “Aggregate behavioral health baseline expenditures”, the sum of all behavioral health
5expenditures, as defined by the center, in the commonwealth in the calendar year preceding the
63-year period to which the aggregate behavioral health expenditure target applies; provided,
7however, that aggregate behavioral health baseline expenditures shall initially be calculated
8using calendar year 2023. 2 of 14
9 “Aggregate behavioral health expenditure target”, the targeted rate of growth for
10aggregate behavioral health baseline expenditures for a particular calendar year, as a percentage
11established by the board.
12 SECTION 2. Said section 1 of said chapter 6D, as so appearing, is hereby further
13amended by inserting after the definition of “Alternative payment methodologies or methods”
14the following definitions:-
15 “Behavioral health baseline expenditures”, the sum of all behavioral health expenditures,
16as defined by the center, by or attributed to an individual health care entity in the calendar year
17preceding the 3-year period to which the behavioral health expenditure target applies; provided,
18however, that behavioral health baseline expenditures shall initially be calculated using calendar
19year 2023.
20 “Behavioral health expenditure target”, the targeted rate of growth for behavioral health
21baseline expenditures for a particular calendar year, as a percentage established by the board.
22 SECTION 3. Section 8 of said chapter 6D, as so appearing, is hereby amended by
23striking out subsection (a) and inserting in place thereof the following subsection:-
24 (a) Not later than October 1 of every year, the commission shall hold public hearings
25based on the report submitted by the center under section 16 of chapter 12C comparing the
26growth in total health care expenditures to the health care cost growth benchmark for the
27previous calendar year and comparing the growth in actual aggregate behavioral health
28expenditures for the previous calendar year to the aggregate behavioral health expenditure target.
29The hearings shall examine health care provider, provider organization and private and public
30health care payer costs, prices and cost trends, with particular attention to factors that contribute 3 of 14
31to cost growth within the commonwealth’s health care system and challenge the ability of the
32commonwealth’s health care system to meet the benchmark or the aggregate behavioral health
33expenditure target established under section 9A.
34 SECTION 4. Said section 8 of said chapter 6D, as so appearing, is hereby further
35amended by striking out, in line 94, the word “and” and inserting in place thereof the following
36words:- , including behavioral health expenditures, and.
37 SECTION 5. Said chapter 6D, as so appearing, is hereby further amended by inserting
38after section 9 the following section:-
39 Section 9A. (a) The board shall establish an aggregate behavioral health expenditure
40target for the commonwealth, which the commission shall prominently publish on its website.
41 (b) The commission shall establish the aggregate behavioral health expenditure target as
42follows:
43 (1) For the 3-year period ending with calendar year 2026, the aggregate behavioral health
44expenditure target in year 1, in year 2, and in year 3 shall be 30 per cent higher than aggregate
45behavioral health baseline expenditures, and the behavioral health expenditure target in year 1, in
46year 2, and in year 3 shall be 30 per cent higher than behavioral health baseline expenditures.
47 (2) For calendar years 2027 and beyond, the commission may modify the behavioral
48health expenditure target and aggregate behavioral health expenditure target, to be effective for
49each year of a 3-year period, provided that the behavioral health expenditure target and aggregate
50behavioral health expenditure target shall be approved by a two-thirds vote of the board not later
51than December 31 of the final calendar year of the preceding 3-year period. If the commission 4 of 14
52does not act to establish an updated behavioral health expenditure target and aggregate
53behavioral health expenditure target pursuant to this subsection, the behavioral health
54expenditure target for each of the 3 years shall be 30 per cent higher than behavioral health
55baseline expenditures, and the aggregate behavioral health expenditure target for each of the 3
56years shall be 30 per cent higher than aggregate behavioral health baseline expenditures, until
57such time as the commission acts to modify the behavioral health expenditure target and
58aggregate behavioral health expenditure target. If the commission modifies the behavioral health
59expenditure target and aggregate behavioral health expenditure target, the modification shall not
60take effect until the 3-year period beginning with the next full calendar year.
61 (c) Prior to establishing the behavioral health expenditure target and aggregate behavioral
62health expenditure target, the commission shall hold a public hearing. The public hearing shall be
63based on the report submitted by the center under section 16 of chapter 12C, comparing the
64actual aggregate expenditures on behavioral health services to the aggregate behavioral health
65expenditure target, any other data submitted by the center and such other pertinent information or
66data as may be available to the commission The hearings shall examine the performance of
67health care entities in meeting the behavioral health expenditure target and the commonwealth’s
68health care system in meeting the aggregate behavioral health expenditure target. The
69commission shall provide public notice of the hearing at least 45 days prior to the date of the
70hearing, including notice to the joint committee on health care financing. The joint committee on
71health care financing may participate in the hearing. The commission shall identify as witnesses
72for the public hearing a representative sample of providers, provider organizations, payers and
73such other interested parties as the commission may determine. Any other interested parties may
74testify at the hearing. 5 of 14
75 SECTION 6. Said chapter 6D, as so appearing, is hereby further amended by inserting
76after section 10 the following section:-
77 Section 10A. (a) For the purposes of this section, “health care entity” shall mean any
78entity identified by the center under section 18 of chapter 12C.
79 (b) The commission shall provide notice to all health care entities that have been
80identified by the center under section 18 of chapter 12C for failure to meet the behavioral health
81expenditure target. Such notice shall state that the center may analyze the performance of
82individual health care entities in meeting the behavioral health expenditure target and, beginning
83in calendar year 2027, the commission may require certain actions, as established in this section,
84from health care entities so identified.
85 (c) In addition to the notice provided under subsection (b), the commission may require
86any health care entity that is identified by the center under section 18 of chapter 12C for failure
87to meet the behavioral health expenditure target to file and implement a performance
88improvement plan. The commission shall provide written notice to such health care entity that
89they are required to file a performance improvement plan. Within 45 days of receipt of such
90written notice, the health care entity shall either:
91 (1) file a performance improvement plan with the commission; or
92 (2) file an application with the commission to waive or extend the requirement to file a
93performance improvement plan.
94 (d) The health care entity may file any documentation or supporting evidence with the
95commission to support the health care entity’s application to waive or extend the requirement to 6 of 14
96file a performance improvement plan. The commission shall require the health care entity to
97submit any other relevant information it deems necessary in considering the waiver or extension
98application; provided, however, that such information shall be made public at the discretion of
99the commission.
100 (e) The commission may waive or delay the requirement for a health care entity to file a
101performance improvement plan in response to a waiver or extension request filed under
102subsection (c) in light of all information received from the health care entity, based on a
103consideration of the following factors: (1) the behavioral health baseline expenditures, costs,
104price and utilization trends of the health care entity over time, and any demonstrated
105improvement to increase the proportion of behavioral health expenditures; (2) any ongoing
106strategies or investments that the health care entity is implementing to invest in or expand access
107to behavioral health services; (3) whether the factors that led to the inability of the health care
108entity to meet the behavioral health expenditure target can reasonably be considered to be
109unanticipated and outside of the control of the entity; provided, that such factors may include,
110but shall not be limited to, market dynamics, technological changes and other drivers of non-
111behavioral health spending such as pharmaceutical and medical devices expenses; (4) the overall
112financial condition of the health care entity; and (5) any other factors the commission considers
113relevant.
114 (f) If the commission declines to waive or extend the requirement for the health care
115entity to file a performance improvement plan, the commission shall provide written notice to the
116health care entity that its application for a waiver or extension was denied and the health care
117entity shall file a performance improvement plan. 7 of 14
118 (g) The commission shall provide the department of public health any notice requiring a
119health care entity to file and implement a performance improvement plan pursuant to this
120section. In the event a health care entity required to file a performance improvement plan under
121this section submits an application for a notice of determination of need under section 25C or 51
122of chapter 111, the notice of the commission requiring the health care entity to file and
123implement a performance improvement plan pursuant to this section shall be considered part of
124the written record pursuant to said section 25C of chapter 111.
125 (h) A health care entity shall file a performance improvement plan: (1) within 45 days of
126receipt of a notice under subsection (c); (2) if the health care entity has requested a waiver or
127extension, within 45 days of receipt of a notice that such waiver or extension has been denied; or
128(3) if the health care entity is granted an extension, on the date given on such extension. The
129performance improvement plan shall identify specific strategies, adjustments and action steps the
130entity proposes to implement to increase the proportion of behavioral health expenditures. The
131proposed performance improvement plan shall include specific identifiable and measurable
132expected outcomes and a timetable for implementation.
133 (i) The commission shall approve any performance improvement plan that it determines
134is reasonably likely to address the underlying cause of the entity’s inability to meet the
135behavioral health expenditure target and has a reasonable expectation for successful
136implementation.
137 (j) If the board determines that the performance improvement plan is unacceptable or
138incomplete, the commission may provide consultation on the criteria that have not been met and
139may allow an additional time period, up to 30 calendar days, for resubmission. 8 of 14
140 (k) Upon approval of the proposed performance improvement plan, the commission shall
141notify the health care entity to begin immediate implementation of the performance improvement
142plan. Public notice shall be provided by the commission on its website, identifying that the health
143care entity is implementing a performance improvement plan. All health care entities
144implementing an approved performance improvement plan shall be subject to additional
145reporting requirements and compliance monitoring, as determined by the commission. The
146commission shall provide assistance to the health care entity in the successful implementation of
147the performance improvement plan.
148 (l) All health care entities shall, in good faith, work to implement the performance
149improvement plan. At any point during the implementation of the performance improvement
150plan the health care entity may file amendments to the performance improvement plan, subject to
151approval of the commission.
152 (m) At the conclusion of the timetable established in the performance improvement plan,
153the health care entity shall report to the commission regarding the outcome of the performance
154improvement plan. If the performance improvement plan was found to be unsuccessful, the
155commission shall either: (1) extend the implementation timetable of the existing performance
156improvement plan; (2) approve amendments to the performance improvement plan as proposed
157by the health care entity; (3) require the health care entity to submit a new performance
158improvement plan under subsection (c); or (4) waive or delay the requirement to file any
159additional performance improvement plans.
160 (n) Upon the successful completion of the performance improvement plan, the identity of
161the health care entity shall be removed from the commission’s website. 9 of 14
162 (o) The commission may submit a recommendation for proposed legislation to the joint
163committee on health care financing if the commission determines that further legislative
164authority is needed to achieve the health care quality and spending sustainability objectives of
165section 9A, assist health care entities with the implementation of performance improvement
166plans or otherwise ensure compliance with the provisions of this section.
167 (p) If the commission determines that a health care entity has: (1) willfully neglected to
168file a performance improvement plan with the commission by the time required in subsection (h);
169(2) failed to file an acceptable performance improvement plan in good faith with the
170commission; (3) failed to implement the performance improvement plan in good faith; or (4)
171knowingly failed to provide information required by this section to the commission or that
172knowingly falsifies the same, the commission may assess a civil penalty to the health care entity
173of not more than $500,000. The commission shall seek to promote compliance with this section
174and shall only impose a civil penalty as a last resort.
175 (q) The commission shall promulgate regulations necessary to implement this section.
176 (r) Nothing in this section shall be construed as affecting or limiting the applicability of
177the health care cost growth benchmark established under section 9, and the obligations of a
178health care entity thereto.
179 SECTION 7. Section 16 of chapter 12C of the General Laws, as so appearing in the 2020
180Official Edition, is hereby amended by striking out subsection (a) and inserting in place thereof
181the following subsection:-
182 (a) The center shall publish an annual report based on the information submitted under
183this chapter concerning health care provider, provider organization and private and public health 10 of 14
184care payer costs and cost trends, section 13 of chapter 6D relative to market power reviews and
185section 15 relative to quality data. The center shall compare the costs and cost trends with the
186health care cost growth benchmark established by the health policy commission under section 9
187of chapter 6D, analyzed by regions of the commonwealth, and shall compare the costs, cost
188trends, and expenditures with the aggregate behavioral health expenditure target established
189under section 9A of chapter 6D, and shall detail: (1) baseline information about cost, price,
190quality, utilization and market power in the commonwealth's health care system; (2) cost growth
191trends for care provided within and outside of accountable care organizations and patient-
192centered medical homes; (3) cost growth trends by provider sector, including but not limited to,
193hospitals, hospital systems, non-acute providers, pharmaceuticals, medical devices and durable
194medical equipment; provided, however, that any detailed cost growth trend in the pharmaceutical
195sector shall consider the effect of drug rebates and other price concessions in the aggregate
196without disclosure of any product or manufacturer-specific rebate or price concession
197information, and without limiting or otherwise affecting the confidential or proprietary nature of
198any rebate or price concession agreement; (4) factors that contribute to cost growth within the
199commonwealth's health care system and to the relationship between provider costs and payer
200premium rates; (5) behavioral health expenditure trends as compared to the aggregate behavioral
201health baseline expenditures, as defined in section 1 of chapter 6D; (6) the proportion of health
202care expenditures reimbursed under fee-for-service and alternative payment methodologies; (7)
203the impact of health care payment and delivery reform efforts on health care costs including, but
204not limited to, the development of limited and tiered networks, increased price transparency,
205increased utilization of electronic medical records and other health technology; (8) the impact of
206any assessments including, but not limited to, the health system benefit surcharge collected under 11 of 14
207section 68 of chapter 118E, on health insurance premiums; (9) trends in utilization of
208unnecessary or duplicative services, with particular emphasis on imaging and other high-cost
209services; (10) the prevalence and trends in adoption of alternative payment methodologies and
210impact of alternative payment methodologies on overall health care spending, insurance
211premiums and provider rates; (11) the development and status of provider organizations in the
212commonwealth including, but not limited to, acquisitions, mergers, consolidations and any
213evidence of excess consolidation or anti-competitive behavior by provider organizations; (12) the
214impact of health care payment and delivery reform on the quality of care delivered in the
215commonwealth; and (13) costs, cost trends, price, quality, utilization and patient outcomes
216related to behavioral health service subcategories, as described in section 21A.
217 SECTION 8. Said section 16 of said chapter 12C, as so appearing, is hereby further
218amended by adding the following subsections:-
219 (d) The center shall publish the aggregate behavioral health baseline expenditures in its
220annual report, beginning in the center’s 2024 annual report.
221 (e) The center, in consultation with the commission, shall determine the behavioral health
222baseline expenditures for individual health care entities and shall report to each health care entity
223its respective baseline expenditures annually, by October 1.
224 SECTION 9. Said chapter 12C, as so appearing, is hereby further amended by striking
225out section 18 and inserting in place thereof the following section:-
226 Section 18. The center shall perform ongoing analysis of data it receives under this
227chapter to identify any payers, providers or provider organizations whose: (i) increase in health
228status adjusted total medical expense is considered excessive and who threaten the ability of the 12 of 14
229state to meet the health care cost growth benchmark established by the joint committee on health
230care financing and the commission under section 10 of chapter 6D; or (ii) expenditures fail to
231meet the behavioral health expenditure target under section 9A of chapter 6D. The center shall
232confidentially provide a list of the payers, providers and provider organizations to the
233commission such that the commission may pursue further action under sections 10 and 10A of
234chapter 6D.
235 SECTION 10. Section 21A of said chapter 12C, as so appearing, is hereby amended by
236adding the following sentence:-
237 Said continuing program of investigation and study shall include developing and defining
238criteria for health care services to be categorized as behavioral health services, with
239subcategories including, but not limited to: (i) mental health; (ii) substance use disorder; (iii)
240outpatient; (iv) inpatient; (v) services for children; (vi) services for adults; and (vii) provider
241type.
242 SECTION 11. Notwithstanding any general or special law to the contrary, there shall be a
243special task force to develop guiding principles and practice specifications that will assist health
244care entities in meeting their annual behavioral health expenditure target, as established by
245section 9A of chapter 6D of the General Laws.
246 The task force shall consist of 21 individuals: the executive director of the health policy
247commission or a designee, who shall serve as chair; the secretary of health and human services
248or a designee; the executive director of the center for health information and analysis or a
249designee; the senate chair of the joint committee on health care financing or a designee; the
250house chair of the joint committee on health care financing or a designee; and 16 members to be 13 of 14
251appointed by the chair, 1 of whom shall be a representative of the Association for Behavioral
252Healthcare, 1 of whom shall be a representative of Blue Cross Blue Shield of Massachusetts,
253Inc., 1 of whom shall be a representative of the Children’s Mental Health Campaign, 1 of whom
254shall be a representative from Health Care For All, 1 of whom shall be a representative of the
255Massachusetts Association for Mental Health, Inc., 1 of whom shall be a representative of
256Massachusetts Association of Behavioral Health Systems, 1 of whom shall be a representative of
257the Massachusetts Association of Health Plans, Inc., 1 of whom shall be a representative of the
258Massachusetts Health and Hospital Association, Inc., 1 of whom shall be a representative of the
259Massachusetts League of Community Health Centers, 1 of whom shall be from a healthcare
260consumer organization that advocates on behalf of adults who receive behavioral health care
261services, 1 of whom shall be from a healthcare consumer organization that advocates on behalf
262of children who receive behavioral health services, 1 of whom shall be a representative from a
263behavioral health provider group, 1 of whom shall have expertise in the behavioral health
264treatment of Black, Indigenous, and People of Color, 1 of whom shall have expertise in the
265behavioral health treatment of the lesbian, gay, bisexual, transgender, and queer community, 1 of
266whom shall have expertise in the treatment of individuals with a mental health condition, and 1
267of whom shall have expertise in the treatment of individuals with a substance use disorder.
268 The task force shall make recommendations on the guiding principles and practice
269specifications by which health care entities are required to meet their annual behavioral health
270expenditure target, as established by section 9A of chapter 6D of the General Laws. The guiding
271principles and practice specifications may include, but are not limited to: (i) the adoption and
272dissemination of practices that promote health; (ii) person-centered and whole person care
273delivery; (iii) early intervention and urgent care services that mitigate morbidity and mortality 14 of 14
274risks; (iv) integrated behavioral health and primary care; (v) non-medical supports such a
275recovery coaches and peer specialists in care transformation efforts; and (vi) emphasis on
276ambulatory and community-based services.
277 The task force shall submit a report and recommendations to the clerks of the senate and
278house of representatives not later than 6 months after passage of this legislation. The executive
279director of the health policy commission shall also make the report and recommendations
280publicly available on the commission’s website.
281 SECTION 12. Subsection (e) of section 16 of chapter 12C of the General Laws shall take
282effect October 1, 2024.