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SENATE DOCKET, NO. 1130 FILED ON: 1/18/2023
SENATE . . . . . . . . . . . . . . No. 645
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 relative to out-of-network billing.
_______________
PETITION OF:
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
SENATE DOCKET, NO. 1130 FILED ON: 1/18/2023
SENATE . . . . . . . . . . . . . . No. 645
By Ms. Friedman, a petition (accompanied by bill, Senate, No. 645) of Cindy F. Friedman,
Susannah M. Whipps, Jack Patrick Lewis and Patricia D. Jehlen for legislation relative to out-of-
network billing. Financial Services.
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 674 OF 2021-2022.]
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act relative to out-of-network billing.
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 12C of the General Laws is hereby amended by adding the
2following section:-
3 Section 25. The center shall calculate the noncontracted commercial rate for emergency
4services and the noncontracted commercial rate for nonemergency services established under
5section 30 of chapter 176O. The center may contract with a nonprofit organization with expertise
6in independent analysis of payment rates for health care services to assist the center in
7calculating the noncontracted commercial rate for emergency services and the noncontracted
8commercial rate for nonemergency services; provided, however, that such organization shall not
9be affiliated with a health carrier or a health care provider. 2 of 9
10 SECTION 2. Section 1 of chapter 176O of the General Laws, as appearing in the 2020
11Official Edition, is hereby amended by inserting after the definition of “Downside risk” the
12following definition:-
13 “Emergency health care services”, health care services rendered to an insured
14experiencing an emergency medical condition.
15 SECTION 3. Said section 1 of said chapter 176O, as so appearing, is hereby further
16amended by inserting after the definition of “Incentive plan” the following definition:-
17 “In-network contracted rate”, the rate contracted between an insured's carrier and a
18network health care provider for the reimbursement of health care services delivered by that
19health care provider to the insured.
20 SECTION 4. Said section 1 of said chapter 176O, as so appearing, is hereby further
21amended by inserting after the definition of “Network” the following 3 definitions:-
22 “Noncontracted commercial rate for emergency services”, the amount set pursuant to
23section 28 of chapter 176O and used to determine the rate of payment to a health care provider
24for the provision of emergency health care services to an insured when the health care provider is
25not in the carrier’s network; provided, however, that “noncontracted commercial rate for
26emergency services” shall not include emergency health care services that are provided by a
27person or entity licensed by the department of public health pursuant to section 6 of chapter
28111C to establish or maintain an ambulance service.
29 “Noncontracted commercial rate for nonemergency services”, the amount set pursuant to
30section 28 of chapter 176O and used to determine the rate of payment to a health care provider 3 of 9
31for the provision of nonemergency health care services to an insured when the health care
32provider is not in the carrier’s network.
33 “Nonemergency health care services”, health care services rendered to an insured
34experiencing a condition other than an emergency medical condition.
35 SECTION 5. Subsection (a) of section 6 of said chapter 176O, as so appearing, is hereby
36amended by striking out paragraph (8) and inserting in place thereof the following paragraph:-
37 (8) a summary description of the procedure, if any, for out-of-network referrals and any
38additional charge for utilizing out-of-network providers and a description of the out-of-network
39consumer protections, including the prohibition on certain billing practices under this chapter.
40 SECTION 6. Subsection (a) of section 27 of said chapter 176O, as so appearing, is
41hereby amended by adding the following sentence:-
42 The common summary of payments form shall include a description of the out-of-
43network consumer protections, including the prohibition on certain billing practices, under this
44chapter.
45 SECTION 7. Said chapter 176O is hereby further amended by adding the following
46sections:-
47 Section 30. (a) The division shall, in consultation with the health policy commission, the
48center for health information and analysis and the executive office of health and human services,
49establish and implement the noncontracted commercial rate for emergency services and the
50noncontracted commercial rate for nonemergency services. The noncontracted commercial rate
51for emergency services and the noncontracted commercial rate for nonemergency services shall 4 of 9
52be in effect for a term of 5 years and shall apply to payments under clauses (ii) and (iv) of
53paragraph (1) of subsection (a) of section 31 of said chapter 176O.
54 (b) In establishing the noncontracted commercial rate for emergency services and the
55noncontracted commercial rate for nonemergency services, the division shall consider:
56 (i) existing contracted rates by public and private payers and the appropriateness of those
57rates for covering the cost of care;
58 (ii) the impact of each rate on: (A) patient access to health care services by geographic
59location; (B) the growth of total health care expenditures; (C) encouraging in-network
60participation by health care providers and incentivizing carriers to contract with health care
61providers; (D) financial stability of health care providers and systems; (E) insurance premiums;
62and (F) provider price variation;
63 (iii) utilization of the rates by self-insured health plans;
64 (iv) ease of transparency in calculating the rates and ease of administration by health care
65providers and carriers;
66 (v) the advisability of establishing a process for providers or payers to dispute the
67accuracy or appropriateness of a rate;
68 (vi) best practices in other states; and
69 (vii) any other factor that the division deems relevant.
70 In developing the noncontracted commercial rate for emergency services and the
71noncontracted commercial rate for nonemergency services, the division shall determine that the 5 of 9
72rates do not have a negative impact on the delivery of care by health care providers
73predominately serving communities that experience health disparities as a result of race,
74ethnicity, socioeconomic status or other status as determined by the division.
75 (c) Prior to establishing and implementing the noncontracted commercial rate for
76emergency services and the noncontracted commercial rate for nonemergency services, the
77division shall hold a public hearing. The hearing shall examine current rates paid for in-network
78and out-of-network services and the impact of those rates on the operation of the health care
79delivery system. and the hearing shall help the division determine, based on the provided
80testimony, information and data, an appropriate noncontracted commercial rate for emergency
81services and an appropriate noncontracted commercial rate for nonemergency services consistent
82with subsection (b). The division shall provide notice to the public, the health policy
83commission, the center for health information and analysis and the executive office of health and
84human services of the hearing not less than 45 days before the date of the hearing. The division
85shall identify as witnesses for the hearing a representative sample of providers, provider
86organizations, payers and other interested parties as the division may determine. Any interested
87party may testify at the hearing.
88 (d) Not later than 30 days after the division’s hearing under subsection (c), the division
89shall publish on its website and implement a noncontracted commercial rate for emergency
90services and a noncontracted commercial rate for nonemergency services. The noncontracted
91commercial rate for emergency services and the noncontracted commercial rate for
92nonemergency services shall take effect immediately and shall be in effect for the applicable 5-
93year term. 6 of 9
94 (e) The division shall conduct a review of established rates in the fourth year of the rates’
95operation. The division shall hold a public hearing under subsection (c) in said fourth year and
96recommend rates consistent with this section to be effective for the next 5-year term.
97 (f) The noncontracted commercial rate for emergency services and the noncontracted
98commercial rate for nonemergency services established under subsection (d) shall be calculated
99by the center for health information and analysis as provided in section 25 of chapter 12C.
100 Section 31. (a)(1) A carrier shall reimburse a health care provider as follows:
101 (i) where the health care provider is a member of an insured’s carrier’s network but not a
102participating provider in the insured’s health benefit plan and the health care provider has
103delivered health care services to the insured to treat an emergency medical condition, the carrier
104shall pay that provider the in-network contracted rate for each delivered service; provided,
105however, that such payment shall constitute payment in full to that health care provider and the
106provider shall not bill the insured except for any applicable copayment, coinsurance or
107deductible that would be owed if the insured received such service or services from a
108participating health care provider under the terms of the insured’s health benefit plan;
109 (ii) where the health care provider is not a member of an insured’s carrier’s network and
110the health care provider has delivered health care services to the insured to treat an emergency
111medical condition, the carrier shall pay that provider the noncontracted commercial rate for
112emergency services for each delivered service; provided, however, that such payment shall
113constitute payment in full to the health care provider and the provider shall not bill the insured
114except for any applicable copayment, coinsurance or deductible that would be owed if the 7 of 9
115insured received such service or services from a participating health care provider under the
116terms of the insured’s health benefit plan;
117 (iii) where the health care provider is a member of an insured’s carrier’s network but not
118a participating provider in the insured’s health benefit plan and the health care provider has
119delivered nonemergency health care services to the insured and a participating provider in the
120insured’s health benefit plan is unavailable or the health care provider renders those
121nonemergency health care services without proper notice to the insured as described in section
122228 of chapter 111, the carrier shall pay that provider the in-network contracted rate for each
123delivered service; provided, however, that such payment shall constitute payment in full to the
124health care provider and the provider shall not bill the insured except for any applicable
125copayment, coinsurance or deductible that would be owed if the insured received such service
126from a participating health care provider under the terms of the insured’s health benefit plan; and
127 (iv) where the health care provider is not a member of an insured’s carrier’s network and
128the health care provider has delivered nonemergency services to the insured and a participating
129provider in the insured’s health benefit plan is unavailable or the health care provider renders
130those nonemergency health care services without proper notice to the insured as described in
131section 228 of chapter 111, the carrier shall pay the provider the noncontracted commercial rate
132for nonemergency services for each delivered service; provided, however, that such payment
133shall constitute payment in full to the health care provider and the provider shall not bill the
134insured except for any applicable copayment, coinsurance or deductible that would be owed if
135the insured received such service or services from a participating health care provider under the
136terms of the insured’s health benefit plan. 8 of 9
137 (2) It shall be an unfair and deceptive act or practice in violation of section 2 of chapter
13893A for any health care provider or carrier to request payment from an enrollee, other than the
139applicable coinsurance, copayment, deductible or other out-of-pocket expense, for the services
140described in paragraph (1).
141 (b) Nothing in this section shall require a carrier to pay for health care services delivered
142to an insured that are not covered benefits under the terms of the insured’s health benefit plan.
143 (c) Nothing in this section shall require a carrier to pay for nonemergency health care
144services delivered to an insured if the insured had a reasonable opportunity to choose to have the
145service performed by a network provider participating in the insured’s health benefit plan.
146Evidence that an insured had a reasonable opportunity to choose to have the service performed
147by a network provider may include, but not be limited to, a written acknowledgement submitted
148with any claim for reimbursement from the carrier that: (i) is signed by the insured; and (ii) was
149provided by the health care provider to the insured before the delivery of nonemergency health
150care services and provided the insured a reasonable amount of time to seek health care services
151from a participating provider in the insured’s health benefit plan.
152 (d) With respect to an entity providing or administering a self-funded health benefit plan
153governed by the provisions of the federal Employee Retirement Income Security Act of 1974, 29
154U.S.C. § 1001 et seq. and its plan members, this section shall only apply if the plan elects to be
155subject to the provisions of this section. To elect to be subject to the provisions of this section,
156the self-funded health benefit plan shall provide notice to the division on an annual basis, in a
157form and manner prescribed by the division, attesting to the plan’s participation and agreeing to
158be bound by the provisions of this section. The self-funded health benefit plan shall amend the 9 of 9
159health benefit plan, coverage policies, contracts and any other plan documents to reflect that the
160benefits of this section shall apply to the plan’s members.
161 (e) In a form and manner to be prescribed by the division, carriers shall indicate to
162insureds that the plan is subject to these provisions. In the case of self-funded health benefit
163plans that elect to be subject to this section pursuant to subsection (d), the plan shall indicate to
164its members that it is self-funded and has elected to be subject to these provisions.
165 (f) The commissioner shall promulgate regulations that are necessary to implement this
166section.
167 (g) The attorney general shall have the authority to conduct investigations of alleged
168violations of this section pursuant to section 5 of chapter 175H or section 6 of chapter 93A. The
169attorney general may enforce this section by bringing an action pursuant to section 4 or said
170section 5 of said chapter 175H or section 4 of said chapter 93A.
171 SECTION 8. Notwithstanding any general or special law to the contrary, the division of
172insurance shall establish and implement a noncontracted commercial rate for emergency services
173and a noncontracted commercial rate for nonemergency services under section 30 of chapter
174176O of the General Laws not later than July 31, 2024; provided, that the noncontracted
175commercial rate for emergency services and the noncontracted commercial rate for
176nonemergency services established by the division shall be based on the report and
177recommendations of the secretary of health and human services under section 71 of Chapter 260
178of the Acts of 2020.