Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S1248 Compare Versions

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

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2	2	SENATE DOCKET, NO. 1474 FILED ON: 1/19/2023
3	3	SENATE . . . . . . . . . . . . . . No. 1248
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Cindy F. Friedman
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 to increase investment in behavioral health care in the Commonwealth.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Cindy F. FriedmanFourth Middlesex 1 of 14
16	16	SENATE DOCKET, NO. 1474 FILED ON: 1/19/2023
17	17	SENATE . . . . . . . . . . . . . . No. 1248
18	18	By Ms. Friedman, a petition (accompanied by bill, Senate, No. 1248) of Cindy F. Friedman for
19	19	legislation to increase investment in behavioral health care in the Commonwealth. Mental
20	20	Health, Substance Use and Recovery.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE SENATE, NO. 1287 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 to increase investment in behavioral health care in the Commonwealth.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 SECTION 1. Section 1 of chapter 6D of the General Laws, as appearing in the 2020
32	32	2Official Edition, is hereby amended by inserting after the definition of “After-hours care” the
33	33	3following definitions:-
34	34	4 “Aggregate behavioral health baseline expenditures”, the sum of all behavioral health
35	35	5expenditures, as defined by the center, in the commonwealth in the calendar year preceding the
36	36	63-year period to which the aggregate behavioral health expenditure target applies; provided,
37	37	7however, that aggregate behavioral health baseline expenditures shall initially be calculated
38	38	8using calendar year 2023. 2 of 14
39	39	9 “Aggregate behavioral health expenditure target”, the targeted rate of growth for
40	40	10aggregate behavioral health baseline expenditures for a particular calendar year, as a percentage
41	41	11established by the board.
42	42	12 SECTION 2. Said section 1 of said chapter 6D, as so appearing, is hereby further
43	43	13amended by inserting after the definition of “Alternative payment methodologies or methods”
44	44	14the following definitions:-
45	45	15 “Behavioral health baseline expenditures”, the sum of all behavioral health expenditures,
46	46	16as defined by the center, by or attributed to an individual health care entity in the calendar year
47	47	17preceding the 3-year period to which the behavioral health expenditure target applies; provided,
48	48	18however, that behavioral health baseline expenditures shall initially be calculated using calendar
49	49	19year 2023.
50	50	20 “Behavioral health expenditure target”, the targeted rate of growth for behavioral health
51	51	21baseline expenditures for a particular calendar year, as a percentage established by the board.
52	52	22 SECTION 3. Section 8 of said chapter 6D, as so appearing, is hereby amended by
53	53	23striking out subsection (a) and inserting in place thereof the following subsection:-
54	54	24 (a) Not later than October 1 of every year, the commission shall hold public hearings
55	55	25based on the report submitted by the center under section 16 of chapter 12C comparing the
56	56	26growth in total health care expenditures to the health care cost growth benchmark for the
57	57	27previous calendar year and comparing the growth in actual aggregate behavioral health
58	58	28expenditures for the previous calendar year to the aggregate behavioral health expenditure target.
59	59	29The hearings shall examine health care provider, provider organization and private and public
60	60	30health care payer costs, prices and cost trends, with particular attention to factors that contribute 3 of 14
61	61	31to cost growth within the commonwealth’s health care system and challenge the ability of the
62	62	32commonwealth’s health care system to meet the benchmark or the aggregate behavioral health
63	63	33expenditure target established under section 9A.
64	64	34 SECTION 4. Said section 8 of said chapter 6D, as so appearing, is hereby further
65	65	35amended by striking out, in line 94, the word “and” and inserting in place thereof the following
66	66	36words:- , including behavioral health expenditures, and.
67	67	37 SECTION 5. Said chapter 6D, as so appearing, is hereby further amended by inserting
68	68	38after section 9 the following section:-
69	69	39 Section 9A. (a) The board shall establish an aggregate behavioral health expenditure
70	70	40target for the commonwealth, which the commission shall prominently publish on its website.
71	71	41 (b) The commission shall establish the aggregate behavioral health expenditure target as
72	72	42follows:
73	73	43 (1) For the 3-year period ending with calendar year 2026, the aggregate behavioral health
74	74	44expenditure target in year 1, in year 2, and in year 3 shall be 30 per cent higher than aggregate
75	75	45behavioral health baseline expenditures, and the behavioral health expenditure target in year 1, in
76	76	46year 2, and in year 3 shall be 30 per cent higher than behavioral health baseline expenditures.
77	77	47 (2) For calendar years 2027 and beyond, the commission may modify the behavioral
78	78	48health expenditure target and aggregate behavioral health expenditure target, to be effective for
79	79	49each year of a 3-year period, provided that the behavioral health expenditure target and aggregate
80	80	50behavioral health expenditure target shall be approved by a two-thirds vote of the board not later
81	81	51than December 31 of the final calendar year of the preceding 3-year period. If the commission 4 of 14
82	82	52does not act to establish an updated behavioral health expenditure target and aggregate
83	83	53behavioral health expenditure target pursuant to this subsection, the behavioral health
84	84	54expenditure target for each of the 3 years shall be 30 per cent higher than behavioral health
85	85	55baseline expenditures, and the aggregate behavioral health expenditure target for each of the 3
86	86	56years shall be 30 per cent higher than aggregate behavioral health baseline expenditures, until
87	87	57such time as the commission acts to modify the behavioral health expenditure target and
88	88	58aggregate behavioral health expenditure target. If the commission modifies the behavioral health
89	89	59expenditure target and aggregate behavioral health expenditure target, the modification shall not
90	90	60take effect until the 3-year period beginning with the next full calendar year.
91	91	61 (c) Prior to establishing the behavioral health expenditure target and aggregate behavioral
92	92	62health expenditure target, the commission shall hold a public hearing. The public hearing shall be
93	93	63based on the report submitted by the center under section 16 of chapter 12C, comparing the
94	94	64actual aggregate expenditures on behavioral health services to the aggregate behavioral health
95	95	65expenditure target, any other data submitted by the center and such other pertinent information or
96	96	66data as may be available to the commission The hearings shall examine the performance of
97	97	67health care entities in meeting the behavioral health expenditure target and the commonwealth’s
98	98	68health care system in meeting the aggregate behavioral health expenditure target. The
99	99	69commission shall provide public notice of the hearing at least 45 days prior to the date of the
100	100	70hearing, including notice to the joint committee on health care financing. The joint committee on
101	101	71health care financing may participate in the hearing. The commission shall identify as witnesses
102	102	72for the public hearing a representative sample of providers, provider organizations, payers and
103	103	73such other interested parties as the commission may determine. Any other interested parties may
104	104	74testify at the hearing. 5 of 14
105	105	75 SECTION 6. Said chapter 6D, as so appearing, is hereby further amended by inserting
106	106	76after section 10 the following section:-
107	107	77 Section 10A. (a) For the purposes of this section, “health care entity” shall mean any
108	108	78entity identified by the center under section 18 of chapter 12C.
109	109	79 (b) The commission shall provide notice to all health care entities that have been
110	110	80identified by the center under section 18 of chapter 12C for failure to meet the behavioral health
111	111	81expenditure target. Such notice shall state that the center may analyze the performance of
112	112	82individual health care entities in meeting the behavioral health expenditure target and, beginning
113	113	83in calendar year 2027, the commission may require certain actions, as established in this section,
114	114	84from health care entities so identified.
115	115	85 (c) In addition to the notice provided under subsection (b), the commission may require
116	116	86any health care entity that is identified by the center under section 18 of chapter 12C for failure
117	117	87to meet the behavioral health expenditure target to file and implement a performance
118	118	88improvement plan. The commission shall provide written notice to such health care entity that
119	119	89they are required to file a performance improvement plan. Within 45 days of receipt of such
120	120	90written notice, the health care entity shall either:
121	121	91 (1) file a performance improvement plan with the commission; or
122	122	92 (2) file an application with the commission to waive or extend the requirement to file a
123	123	93performance improvement plan.
124	124	94 (d) The health care entity may file any documentation or supporting evidence with the
125	125	95commission to support the health care entity’s application to waive or extend the requirement to 6 of 14
126	126	96file a performance improvement plan. The commission shall require the health care entity to
127	127	97submit any other relevant information it deems necessary in considering the waiver or extension
128	128	98application; provided, however, that such information shall be made public at the discretion of
129	129	99the commission.
130	130	100 (e) The commission may waive or delay the requirement for a health care entity to file a
131	131	101performance improvement plan in response to a waiver or extension request filed under
132	132	102subsection (c) in light of all information received from the health care entity, based on a
133	133	103consideration of the following factors: (1) the behavioral health baseline expenditures, costs,
134	134	104price and utilization trends of the health care entity over time, and any demonstrated
135	135	105improvement to increase the proportion of behavioral health expenditures; (2) any ongoing
136	136	106strategies or investments that the health care entity is implementing to invest in or expand access
137	137	107to behavioral health services; (3) whether the factors that led to the inability of the health care
138	138	108entity to meet the behavioral health expenditure target can reasonably be considered to be
139	139	109unanticipated and outside of the control of the entity; provided, that such factors may include,
140	140	110but shall not be limited to, market dynamics, technological changes and other drivers of non-
141	141	111behavioral health spending such as pharmaceutical and medical devices expenses; (4) the overall
142	142	112financial condition of the health care entity; and (5) any other factors the commission considers
143	143	113relevant.
144	144	114 (f) If the commission declines to waive or extend the requirement for the health care
145	145	115entity to file a performance improvement plan, the commission shall provide written notice to the
146	146	116health care entity that its application for a waiver or extension was denied and the health care
147	147	117entity shall file a performance improvement plan. 7 of 14
148	148	118 (g) The commission shall provide the department of public health any notice requiring a
149	149	119health care entity to file and implement a performance improvement plan pursuant to this
150	150	120section. In the event a health care entity required to file a performance improvement plan under
151	151	121this section submits an application for a notice of determination of need under section 25C or 51
152	152	122of chapter 111, the notice of the commission requiring the health care entity to file and
153	153	123implement a performance improvement plan pursuant to this section shall be considered part of
154	154	124the written record pursuant to said section 25C of chapter 111.
155	155	125 (h) A health care entity shall file a performance improvement plan: (1) within 45 days of
156	156	126receipt of a notice under subsection (c); (2) if the health care entity has requested a waiver or
157	157	127extension, within 45 days of receipt of a notice that such waiver or extension has been denied; or
158	158	128(3) if the health care entity is granted an extension, on the date given on such extension. The
159	159	129performance improvement plan shall identify specific strategies, adjustments and action steps the
160	160	130entity proposes to implement to increase the proportion of behavioral health expenditures. The
161	161	131proposed performance improvement plan shall include specific identifiable and measurable
162	162	132expected outcomes and a timetable for implementation.
163	163	133 (i) The commission shall approve any performance improvement plan that it determines
164	164	134is reasonably likely to address the underlying cause of the entity’s inability to meet the
165	165	135behavioral health expenditure target and has a reasonable expectation for successful
166	166	136implementation.
167	167	137 (j) If the board determines that the performance improvement plan is unacceptable or
168	168	138incomplete, the commission may provide consultation on the criteria that have not been met and
169	169	139may allow an additional time period, up to 30 calendar days, for resubmission. 8 of 14
170	170	140 (k) Upon approval of the proposed performance improvement plan, the commission shall
171	171	141notify the health care entity to begin immediate implementation of the performance improvement
172	172	142plan. Public notice shall be provided by the commission on its website, identifying that the health
173	173	143care entity is implementing a performance improvement plan. All health care entities
174	174	144implementing an approved performance improvement plan shall be subject to additional
175	175	145reporting requirements and compliance monitoring, as determined by the commission. The
176	176	146commission shall provide assistance to the health care entity in the successful implementation of
177	177	147the performance improvement plan.
178	178	148 (l) All health care entities shall, in good faith, work to implement the performance
179	179	149improvement plan. At any point during the implementation of the performance improvement
180	180	150plan the health care entity may file amendments to the performance improvement plan, subject to
181	181	151approval of the commission.
182	182	152 (m) At the conclusion of the timetable established in the performance improvement plan,
183	183	153the health care entity shall report to the commission regarding the outcome of the performance
184	184	154improvement plan. If the performance improvement plan was found to be unsuccessful, the
185	185	155commission shall either: (1) extend the implementation timetable of the existing performance
186	186	156improvement plan; (2) approve amendments to the performance improvement plan as proposed
187	187	157by the health care entity; (3) require the health care entity to submit a new performance
188	188	158improvement plan under subsection (c); or (4) waive or delay the requirement to file any
189	189	159additional performance improvement plans.
190	190	160 (n) Upon the successful completion of the performance improvement plan, the identity of
191	191	161the health care entity shall be removed from the commission’s website. 9 of 14
192	192	162 (o) The commission may submit a recommendation for proposed legislation to the joint
193	193	163committee on health care financing if the commission determines that further legislative
194	194	164authority is needed to achieve the health care quality and spending sustainability objectives of
195	195	165section 9A, assist health care entities with the implementation of performance improvement
196	196	166plans or otherwise ensure compliance with the provisions of this section.
197	197	167 (p) If the commission determines that a health care entity has: (1) willfully neglected to
198	198	168file a performance improvement plan with the commission by the time required in subsection (h);
199	199	169(2) failed to file an acceptable performance improvement plan in good faith with the
200	200	170commission; (3) failed to implement the performance improvement plan in good faith; or (4)
201	201	171knowingly failed to provide information required by this section to the commission or that
202	202	172knowingly falsifies the same, the commission may assess a civil penalty to the health care entity
203	203	173of not more than $500,000. The commission shall seek to promote compliance with this section
204	204	174and shall only impose a civil penalty as a last resort.
205	205	175 (q) The commission shall promulgate regulations necessary to implement this section.
206	206	176 (r) Nothing in this section shall be construed as affecting or limiting the applicability of
207	207	177the health care cost growth benchmark established under section 9, and the obligations of a
208	208	178health care entity thereto.
209	209	179 SECTION 7. Section 16 of chapter 12C of the General Laws, as so appearing in the 2020
210	210	180Official Edition, is hereby amended by striking out subsection (a) and inserting in place thereof
211	211	181the following subsection:-
212	212	182 (a) The center shall publish an annual report based on the information submitted under
213	213	183this chapter concerning health care provider, provider organization and private and public health 10 of 14
214	214	184care payer costs and cost trends, section 13 of chapter 6D relative to market power reviews and
215	215	185section 15 relative to quality data. The center shall compare the costs and cost trends with the
216	216	186health care cost growth benchmark established by the health policy commission under section 9
217	217	187of chapter 6D, analyzed by regions of the commonwealth, and shall compare the costs, cost
218	218	188trends, and expenditures with the aggregate behavioral health expenditure target established
219	219	189under section 9A of chapter 6D, and shall detail: (1) baseline information about cost, price,
220	220	190quality, utilization and market power in the commonwealth's health care system; (2) cost growth
221	221	191trends for care provided within and outside of accountable care organizations and patient-
222	222	192centered medical homes; (3) cost growth trends by provider sector, including but not limited to,
223	223	193hospitals, hospital systems, non-acute providers, pharmaceuticals, medical devices and durable
224	224	194medical equipment; provided, however, that any detailed cost growth trend in the pharmaceutical
225	225	195sector shall consider the effect of drug rebates and other price concessions in the aggregate
226	226	196without disclosure of any product or manufacturer-specific rebate or price concession
227	227	197information, and without limiting or otherwise affecting the confidential or proprietary nature of
228	228	198any rebate or price concession agreement; (4) factors that contribute to cost growth within the
229	229	199commonwealth's health care system and to the relationship between provider costs and payer
230	230	200premium rates; (5) behavioral health expenditure trends as compared to the aggregate behavioral
231	231	201health baseline expenditures, as defined in section 1 of chapter 6D; (6) the proportion of health
232	232	202care expenditures reimbursed under fee-for-service and alternative payment methodologies; (7)
233	233	203the impact of health care payment and delivery reform efforts on health care costs including, but
234	234	204not limited to, the development of limited and tiered networks, increased price transparency,
235	235	205increased utilization of electronic medical records and other health technology; (8) the impact of
236	236	206any assessments including, but not limited to, the health system benefit surcharge collected under 11 of 14
237	237	207section 68 of chapter 118E, on health insurance premiums; (9) trends in utilization of
238	238	208unnecessary or duplicative services, with particular emphasis on imaging and other high-cost
239	239	209services; (10) the prevalence and trends in adoption of alternative payment methodologies and
240	240	210impact of alternative payment methodologies on overall health care spending, insurance
241	241	211premiums and provider rates; (11) the development and status of provider organizations in the
242	242	212commonwealth including, but not limited to, acquisitions, mergers, consolidations and any
243	243	213evidence of excess consolidation or anti-competitive behavior by provider organizations; (12) the
244	244	214impact of health care payment and delivery reform on the quality of care delivered in the
245	245	215commonwealth; and (13) costs, cost trends, price, quality, utilization and patient outcomes
246	246	216related to behavioral health service subcategories, as described in section 21A.
247	247	217 SECTION 8. Said section 16 of said chapter 12C, as so appearing, is hereby further
248	248	218amended by adding the following subsections:-
249	249	219 (d) The center shall publish the aggregate behavioral health baseline expenditures in its
250	250	220annual report, beginning in the center’s 2024 annual report.
251	251	221 (e) The center, in consultation with the commission, shall determine the behavioral health
252	252	222baseline expenditures for individual health care entities and shall report to each health care entity
253	253	223its respective baseline expenditures annually, by October 1.
254	254	224 SECTION 9. Said chapter 12C, as so appearing, is hereby further amended by striking
255	255	225out section 18 and inserting in place thereof the following section:-
256	256	226 Section 18. The center shall perform ongoing analysis of data it receives under this
257	257	227chapter to identify any payers, providers or provider organizations whose: (i) increase in health
258	258	228status adjusted total medical expense is considered excessive and who threaten the ability of the 12 of 14
259	259	229state to meet the health care cost growth benchmark established by the joint committee on health
260	260	230care financing and the commission under section 10 of chapter 6D; or (ii) expenditures fail to
261	261	231meet the behavioral health expenditure target under section 9A of chapter 6D. The center shall
262	262	232confidentially provide a list of the payers, providers and provider organizations to the
263	263	233commission such that the commission may pursue further action under sections 10 and 10A of
264	264	234chapter 6D.
265	265	235 SECTION 10. Section 21A of said chapter 12C, as so appearing, is hereby amended by
266	266	236adding the following sentence:-
267	267	237 Said continuing program of investigation and study shall include developing and defining
268	268	238criteria for health care services to be categorized as behavioral health services, with
269	269	239subcategories including, but not limited to: (i) mental health; (ii) substance use disorder; (iii)
270	270	240outpatient; (iv) inpatient; (v) services for children; (vi) services for adults; and (vii) provider
271	271	241type.
272	272	242 SECTION 11. Notwithstanding any general or special law to the contrary, there shall be a
273	273	243special task force to develop guiding principles and practice specifications that will assist health
274	274	244care entities in meeting their annual behavioral health expenditure target, as established by
275	275	245section 9A of chapter 6D of the General Laws.
276	276	246 The task force shall consist of 21 individuals: the executive director of the health policy
277	277	247commission or a designee, who shall serve as chair; the secretary of health and human services
278	278	248or a designee; the executive director of the center for health information and analysis or a
279	279	249designee; the senate chair of the joint committee on health care financing or a designee; the
280	280	250house chair of the joint committee on health care financing or a designee; and 16 members to be 13 of 14
281	281	251appointed by the chair, 1 of whom shall be a representative of the Association for Behavioral
282	282	252Healthcare, 1 of whom shall be a representative of Blue Cross Blue Shield of Massachusetts,
283	283	253Inc., 1 of whom shall be a representative of the Children’s Mental Health Campaign, 1 of whom
284	284	254shall be a representative from Health Care For All, 1 of whom shall be a representative of the
285	285	255Massachusetts Association for Mental Health, Inc., 1 of whom shall be a representative of
286	286	256Massachusetts Association of Behavioral Health Systems, 1 of whom shall be a representative of
287	287	257the Massachusetts Association of Health Plans, Inc., 1 of whom shall be a representative of the
288	288	258Massachusetts Health and Hospital Association, Inc., 1 of whom shall be a representative of the
289	289	259Massachusetts League of Community Health Centers, 1 of whom shall be from a healthcare
290	290	260consumer organization that advocates on behalf of adults who receive behavioral health care
291	291	261services, 1 of whom shall be from a healthcare consumer organization that advocates on behalf
292	292	262of children who receive behavioral health services, 1 of whom shall be a representative from a
293	293	263behavioral health provider group, 1 of whom shall have expertise in the behavioral health
294	294	264treatment of Black, Indigenous, and People of Color, 1 of whom shall have expertise in the
295	295	265behavioral health treatment of the lesbian, gay, bisexual, transgender, and queer community, 1 of
296	296	266whom shall have expertise in the treatment of individuals with a mental health condition, and 1
297	297	267of whom shall have expertise in the treatment of individuals with a substance use disorder.
298	298	268 The task force shall make recommendations on the guiding principles and practice
299	299	269specifications by which health care entities are required to meet their annual behavioral health
300	300	270expenditure target, as established by section 9A of chapter 6D of the General Laws. The guiding
301	301	271principles and practice specifications may include, but are not limited to: (i) the adoption and
302	302	272dissemination of practices that promote health; (ii) person-centered and whole person care
303	303	273delivery; (iii) early intervention and urgent care services that mitigate morbidity and mortality 14 of 14
304	304	274risks; (iv) integrated behavioral health and primary care; (v) non-medical supports such a
305	305	275recovery coaches and peer specialists in care transformation efforts; and (vi) emphasis on
306	306	276ambulatory and community-based services.
307	307	277 The task force shall submit a report and recommendations to the clerks of the senate and
308	308	278house of representatives not later than 6 months after passage of this legislation. The executive
309	309	279director of the health policy commission shall also make the report and recommendations
310	310	280publicly available on the commission’s website.
311	311	281 SECTION 12. Subsection (e) of section 16 of chapter 12C of the General Laws shall take
312	312	282effect October 1, 2024.