Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S645 Compare Versions

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

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1	1	1 of 1
2	2	SENATE DOCKET, NO. 1130 FILED ON: 1/18/2023
3	3	SENATE . . . . . . . . . . . . . . No. 645
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 relative to out-of-network billing.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Cindy F. FriedmanFourth MiddlesexSusannah M. Whipps2nd Franklin1/27/2023Jack Patrick Lewis7th Middlesex1/30/2023Patricia D. JehlenSecond Middlesex3/2/2023 1 of 9
16	16	SENATE DOCKET, NO. 1130 FILED ON: 1/18/2023
17	17	SENATE . . . . . . . . . . . . . . No. 645
18	18	By Ms. Friedman, a petition (accompanied by bill, Senate, No. 645) of Cindy F. Friedman,
19	19	Susannah M. Whipps, Jack Patrick Lewis and Patricia D. Jehlen for legislation relative to out-of-
20	20	network billing. Financial Services.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE SENATE, NO. 674 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 relative to out-of-network billing.
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. Chapter 12C of the General Laws is hereby amended by adding the
32	32	2following section:-
33	33	3 Section 25. The center shall calculate the noncontracted commercial rate for emergency
34	34	4services and the noncontracted commercial rate for nonemergency services established under
35	35	5section 30 of chapter 176O. The center may contract with a nonprofit organization with expertise
36	36	6in independent analysis of payment rates for health care services to assist the center in
37	37	7calculating the noncontracted commercial rate for emergency services and the noncontracted
38	38	8commercial rate for nonemergency services; provided, however, that such organization shall not
39	39	9be affiliated with a health carrier or a health care provider. 2 of 9
40	40	10 SECTION 2. Section 1 of chapter 176O of the General Laws, as appearing in the 2020
41	41	11Official Edition, is hereby amended by inserting after the definition of “Downside risk” the
42	42	12following definition:-
43	43	13 “Emergency health care services”, health care services rendered to an insured
44	44	14experiencing an emergency medical condition.
45	45	15 SECTION 3. Said section 1 of said chapter 176O, as so appearing, is hereby further
46	46	16amended by inserting after the definition of “Incentive plan” the following definition:-
47	47	17 “In-network contracted rate”, the rate contracted between an insured's carrier and a
48	48	18network health care provider for the reimbursement of health care services delivered by that
49	49	19health care provider to the insured.
50	50	20 SECTION 4. Said section 1 of said chapter 176O, as so appearing, is hereby further
51	51	21amended by inserting after the definition of “Network” the following 3 definitions:-
52	52	22 “Noncontracted commercial rate for emergency services”, the amount set pursuant to
53	53	23section 28 of chapter 176O and used to determine the rate of payment to a health care provider
54	54	24for the provision of emergency health care services to an insured when the health care provider is
55	55	25not in the carrier’s network; provided, however, that “noncontracted commercial rate for
56	56	26emergency services” shall not include emergency health care services that are provided by a
57	57	27person or entity licensed by the department of public health pursuant to section 6 of chapter
58	58	28111C to establish or maintain an ambulance service.
59	59	29 “Noncontracted commercial rate for nonemergency services”, the amount set pursuant to
60	60	30section 28 of chapter 176O and used to determine the rate of payment to a health care provider 3 of 9
61	61	31for the provision of nonemergency health care services to an insured when the health care
62	62	32provider is not in the carrier’s network.
63	63	33 “Nonemergency health care services”, health care services rendered to an insured
64	64	34experiencing a condition other than an emergency medical condition.
65	65	35 SECTION 5. Subsection (a) of section 6 of said chapter 176O, as so appearing, is hereby
66	66	36amended by striking out paragraph (8) and inserting in place thereof the following paragraph:-
67	67	37 (8) a summary description of the procedure, if any, for out-of-network referrals and any
68	68	38additional charge for utilizing out-of-network providers and a description of the out-of-network
69	69	39consumer protections, including the prohibition on certain billing practices under this chapter.
70	70	40 SECTION 6. Subsection (a) of section 27 of said chapter 176O, as so appearing, is
71	71	41hereby amended by adding the following sentence:-
72	72	42 The common summary of payments form shall include a description of the out-of-
73	73	43network consumer protections, including the prohibition on certain billing practices, under this
74	74	44chapter.
75	75	45 SECTION 7. Said chapter 176O is hereby further amended by adding the following
76	76	46sections:-
77	77	47 Section 30. (a) The division shall, in consultation with the health policy commission, the
78	78	48center for health information and analysis and the executive office of health and human services,
79	79	49establish and implement the noncontracted commercial rate for emergency services and the
80	80	50noncontracted commercial rate for nonemergency services. The noncontracted commercial rate
81	81	51for emergency services and the noncontracted commercial rate for nonemergency services shall 4 of 9
82	82	52be in effect for a term of 5 years and shall apply to payments under clauses (ii) and (iv) of
83	83	53paragraph (1) of subsection (a) of section 31 of said chapter 176O.
84	84	54 (b) In establishing the noncontracted commercial rate for emergency services and the
85	85	55noncontracted commercial rate for nonemergency services, the division shall consider:
86	86	56 (i) existing contracted rates by public and private payers and the appropriateness of those
87	87	57rates for covering the cost of care;
88	88	58 (ii) the impact of each rate on: (A) patient access to health care services by geographic
89	89	59location; (B) the growth of total health care expenditures; (C) encouraging in-network
90	90	60participation by health care providers and incentivizing carriers to contract with health care
91	91	61providers; (D) financial stability of health care providers and systems; (E) insurance premiums;
92	92	62and (F) provider price variation;
93	93	63 (iii) utilization of the rates by self-insured health plans;
94	94	64 (iv) ease of transparency in calculating the rates and ease of administration by health care
95	95	65providers and carriers;
96	96	66 (v) the advisability of establishing a process for providers or payers to dispute the
97	97	67accuracy or appropriateness of a rate;
98	98	68 (vi) best practices in other states; and
99	99	69 (vii) any other factor that the division deems relevant.
100	100	70 In developing the noncontracted commercial rate for emergency services and the
101	101	71noncontracted commercial rate for nonemergency services, the division shall determine that the 5 of 9
102	102	72rates do not have a negative impact on the delivery of care by health care providers
103	103	73predominately serving communities that experience health disparities as a result of race,
104	104	74ethnicity, socioeconomic status or other status as determined by the division.
105	105	75 (c) Prior to establishing and implementing the noncontracted commercial rate for
106	106	76emergency services and the noncontracted commercial rate for nonemergency services, the
107	107	77division shall hold a public hearing. The hearing shall examine current rates paid for in-network
108	108	78and out-of-network services and the impact of those rates on the operation of the health care
109	109	79delivery system. and the hearing shall help the division determine, based on the provided
110	110	80testimony, information and data, an appropriate noncontracted commercial rate for emergency
111	111	81services and an appropriate noncontracted commercial rate for nonemergency services consistent
112	112	82with subsection (b). The division shall provide notice to the public, the health policy
113	113	83commission, the center for health information and analysis and the executive office of health and
114	114	84human services of the hearing not less than 45 days before the date of the hearing. The division
115	115	85shall identify as witnesses for the hearing a representative sample of providers, provider
116	116	86organizations, payers and other interested parties as the division may determine. Any interested
117	117	87party may testify at the hearing.
118	118	88 (d) Not later than 30 days after the division’s hearing under subsection (c), the division
119	119	89shall publish on its website and implement a noncontracted commercial rate for emergency
120	120	90services and a noncontracted commercial rate for nonemergency services. The noncontracted
121	121	91commercial rate for emergency services and the noncontracted commercial rate for
122	122	92nonemergency services shall take effect immediately and shall be in effect for the applicable 5-
123	123	93year term. 6 of 9
124	124	94 (e) The division shall conduct a review of established rates in the fourth year of the rates’
125	125	95operation. The division shall hold a public hearing under subsection (c) in said fourth year and
126	126	96recommend rates consistent with this section to be effective for the next 5-year term.
127	127	97 (f) The noncontracted commercial rate for emergency services and the noncontracted
128	128	98commercial rate for nonemergency services established under subsection (d) shall be calculated
129	129	99by the center for health information and analysis as provided in section 25 of chapter 12C.
130	130	100 Section 31. (a)(1) A carrier shall reimburse a health care provider as follows:
131	131	101 (i) where the health care provider is a member of an insured’s carrier’s network but not a
132	132	102participating provider in the insured’s health benefit plan and the health care provider has
133	133	103delivered health care services to the insured to treat an emergency medical condition, the carrier
134	134	104shall pay that provider the in-network contracted rate for each delivered service; provided,
135	135	105however, that such payment shall constitute payment in full to that health care provider and the
136	136	106provider shall not bill the insured except for any applicable copayment, coinsurance or
137	137	107deductible that would be owed if the insured received such service or services from a
138	138	108participating health care provider under the terms of the insured’s health benefit plan;
139	139	109 (ii) where the health care provider is not a member of an insured’s carrier’s network and
140	140	110the health care provider has delivered health care services to the insured to treat an emergency
141	141	111medical condition, the carrier shall pay that provider the noncontracted commercial rate for
142	142	112emergency services for each delivered service; provided, however, that such payment shall
143	143	113constitute payment in full to the health care provider and the provider shall not bill the insured
144	144	114except for any applicable copayment, coinsurance or deductible that would be owed if the 7 of 9
145	145	115insured received such service or services from a participating health care provider under the
146	146	116terms of the insured’s health benefit plan;
147	147	117 (iii) where the health care provider is a member of an insured’s carrier’s network but not
148	148	118a participating provider in the insured’s health benefit plan and the health care provider has
149	149	119delivered nonemergency health care services to the insured and a participating provider in the
150	150	120insured’s health benefit plan is unavailable or the health care provider renders those
151	151	121nonemergency health care services without proper notice to the insured as described in section
152	152	122228 of chapter 111, the carrier shall pay that provider the in-network contracted rate for each
153	153	123delivered service; provided, however, that such payment shall constitute payment in full to the
154	154	124health care provider and the provider shall not bill the insured except for any applicable
155	155	125copayment, coinsurance or deductible that would be owed if the insured received such service
156	156	126from a participating health care provider under the terms of the insured’s health benefit plan; and
157	157	127 (iv) where the health care provider is not a member of an insured’s carrier’s network and
158	158	128the health care provider has delivered nonemergency services to the insured and a participating
159	159	129provider in the insured’s health benefit plan is unavailable or the health care provider renders
160	160	130those nonemergency health care services without proper notice to the insured as described in
161	161	131section 228 of chapter 111, the carrier shall pay the provider the noncontracted commercial rate
162	162	132for nonemergency services for each delivered service; provided, however, that such payment
163	163	133shall constitute payment in full to the health care provider and the provider shall not bill the
164	164	134insured except for any applicable copayment, coinsurance or deductible that would be owed if
165	165	135the insured received such service or services from a participating health care provider under the
166	166	136terms of the insured’s health benefit plan. 8 of 9
167	167	137 (2) It shall be an unfair and deceptive act or practice in violation of section 2 of chapter
168	168	13893A for any health care provider or carrier to request payment from an enrollee, other than the
169	169	139applicable coinsurance, copayment, deductible or other out-of-pocket expense, for the services
170	170	140described in paragraph (1).
171	171	141 (b) Nothing in this section shall require a carrier to pay for health care services delivered
172	172	142to an insured that are not covered benefits under the terms of the insured’s health benefit plan.
173	173	143 (c) Nothing in this section shall require a carrier to pay for nonemergency health care
174	174	144services delivered to an insured if the insured had a reasonable opportunity to choose to have the
175	175	145service performed by a network provider participating in the insured’s health benefit plan.
176	176	146Evidence that an insured had a reasonable opportunity to choose to have the service performed
177	177	147by a network provider may include, but not be limited to, a written acknowledgement submitted
178	178	148with any claim for reimbursement from the carrier that: (i) is signed by the insured; and (ii) was
179	179	149provided by the health care provider to the insured before the delivery of nonemergency health
180	180	150care services and provided the insured a reasonable amount of time to seek health care services
181	181	151from a participating provider in the insured’s health benefit plan.
182	182	152 (d) With respect to an entity providing or administering a self-funded health benefit plan
183	183	153governed by the provisions of the federal Employee Retirement Income Security Act of 1974, 29
184	184	154U.S.C. § 1001 et seq. and its plan members, this section shall only apply if the plan elects to be
185	185	155subject to the provisions of this section. To elect to be subject to the provisions of this section,
186	186	156the self-funded health benefit plan shall provide notice to the division on an annual basis, in a
187	187	157form and manner prescribed by the division, attesting to the plan’s participation and agreeing to
188	188	158be bound by the provisions of this section. The self-funded health benefit plan shall amend the 9 of 9
189	189	159health benefit plan, coverage policies, contracts and any other plan documents to reflect that the
190	190	160benefits of this section shall apply to the plan’s members.
191	191	161 (e) In a form and manner to be prescribed by the division, carriers shall indicate to
192	192	162insureds that the plan is subject to these provisions. In the case of self-funded health benefit
193	193	163plans that elect to be subject to this section pursuant to subsection (d), the plan shall indicate to
194	194	164its members that it is self-funded and has elected to be subject to these provisions.
195	195	165 (f) The commissioner shall promulgate regulations that are necessary to implement this
196	196	166section.
197	197	167 (g) The attorney general shall have the authority to conduct investigations of alleged
198	198	168violations of this section pursuant to section 5 of chapter 175H or section 6 of chapter 93A. The
199	199	169attorney general may enforce this section by bringing an action pursuant to section 4 or said
200	200	170section 5 of said chapter 175H or section 4 of said chapter 93A.
201	201	171 SECTION 8. Notwithstanding any general or special law to the contrary, the division of
202	202	172insurance shall establish and implement a noncontracted commercial rate for emergency services
203	203	173and a noncontracted commercial rate for nonemergency services under section 30 of chapter
204	204	174176O of the General Laws not later than July 31, 2024; provided, that the noncontracted
205	205	175commercial rate for emergency services and the noncontracted commercial rate for
206	206	176nonemergency services established by the division shall be based on the report and
207	207	177recommendations of the secretary of health and human services under section 71 of Chapter 260
208	208	178of the Acts of 2020.