Massachusetts Health Care Bill Makes Several Significant Changes

While you were celebrating the New Year, Governor Baker signed Chapter 260 of the Acts of 2020, an “Act promoting a resilient health care system that puts patients first,” the result of the Legislature’s months of work to address various health care delivery system and social equity issues that the COVID-19 epidemic has hastened. The Act imposes a number of new requirements on providers and health plans regarding telehealth, balance billing, and coverage for COVID-19 related services. The Act also includes reforms that expand the ability of certain non-physician practitioners to provide services. In terms of the Act’s effect on providers, the Act uses the terms “provider” and “health care provider,” but does not specifically define—or redefine—them. Still, at least one relevant already-existing definition of provider includes medical and osteopathic doctors, dentists, RNs, LCSWs, chiropractors, psychologists, interns, residents, fellows, and medical officers, as well as hospitals, clinics and nursing homes, and their agents or employees, meaning the Act affects a range of providers.

• Telehealth: The Act requires coverage of services provided via telehealth, including for MassHealth enrollees, when the same in-person service would be covered and when telehealth services are appropriate. Patient cost-sharing for telehealth services must be the same as cost-sharing for in-person services.

Plans must cover services provided via telehealth—which include services involving a patient’s physical, oral, or mental health, or a substance use disorder—at the same rates as in-person services until 90 days after the end of the COVID-19 state of emergency. Plans also must cover primary care and chronic disease management provided via telehealth at the same rates as in-person services for two years. The parity requirement also applies permanently to behavioral health services, though a possible wrinkle exists in the context of services for developmental disorders provided via telehealth. The Act’s definition of “behavioral health services” includes services for patients with mental health, developmental or substance use disorders, but the definition of “telehealth” includes only mental health and substance use disorders in listing the conditions telehealth services may treat. The discrepancy suggests that telehealth services for developmental disorders may not enjoy the same payment parity as telehealth services for mental health or substance use disorders.

Health plans should note that significant reliance on telehealth will not meet regulatory requirements to maintain an adequate network of providers if patients cannot timely access appropriate in-person services upon request. However, during the current state of emergency, plans can significantly rely on telehealth to meet network adequacy requirements. Plans may also use utilization review in assessing appropriateness of telehealth, with some restrictions.

• Scope of practice: The Act expands the types of practitioners able to provide services independently by allowing nurse practitioners, nurse anesthetists, and psychiatric nurse mental health clinical specialists to practice independently, subject to certain education, training, and prior supervised practice standards. Optometrists may now also provide treatment for glaucoma.
• Balance billing: The Act addresses balance billing in the non-emergency context only. Primarily, the Act requires a provider to disclose whether he/she participates in the patient’s plan at least seven days prior to a scheduled procedure (with allowances for circumstances where a procedure is scheduled less than seven days prior to its date). Certain notice requirements regarding charges, out-of-pocket costs, and potential in-network providers apply depending on whether the provider participates in the patient’s plan. Providers must also make certain disclosures regarding participating provider status when referring patients to other providers. A non-participating provider who fails to comply with the notice and consent requirements can bill the patient only for the applicable cost-sharing amount (i.e., the provider cannot balance bill the patient) and, in addition, the Act imposes a $2,500 penalty for each violation of these requirements.

The Act’s balance billing-related requirements differ somewhat from the recent similar federal legislation on the topic, the No Surprises Act. Again, the Massachusetts law applies only to non-emergency services; the federal law addresses non-emergency, emergency, and air ambulance services. Yet the Massachusetts Act is also somewhat broader than the federal law, as the Act imposes requirements on all providers—participating and non-participating—while the No Surprises Act’s non-emergency services provisions apply only to non-participating providers at participating facilities and to non-participating facilities. And the two laws may conflict in some contexts. For example, the Massachusetts Act would allow any non-participating provider to balance bill if notice and consent requirements are met. Yet the federal law prohibits certain non-participating providers at participating facilities—such as emergency providers, radiologists, pathologists, anesthesiologists, and neonatologists—from balance billing at all. This effectively means that, for example, a non-participating anesthesiologist at a participating facility in Massachusetts cannot simply comply with Massachusetts notice and consent requirements and balance bill a patient; federal law prohibits the anesthesiologist from balance billing at all. In general, if the state law conflicts with the federal law, the federal law applies.

• COVID-19 testing, treatment, and coverage: The Act ensures continued treatment and coverage for COVID-19 by requiring that plans cover medically necessary outpatient testing (including testing for asymptomatic individuals in accordance with guidelines that the Massachusetts Secretary of Health and Human Services will develop), as well as treatment (including emergency department visits, inpatient, professional, and laboratory services) without any patient cost-sharing. Again, plans must pay for services provided via telehealth at the same rates as in-person services for 90 days after the end of the COVID-19 state of emergency. The Act also requires the Massachusetts Secretary of Health and Human Services to promulgate guidelines regarding testing of asymptomatic individuals in industries with increased COVID-19 exposure, such as the health care, restaurant, retail, and hospitality industries.
• Disease-specific reforms. The Act requires that plans provide coverage for pediatric autoimmune neuropsychiatric disorder associated with streptococcal infections and pediatric acute neuropsychiatric syndrome.

Again, the Act imposes a number of new requirements on providers and health plans but also includes some likely improvements to the health care delivery system. The Act also ensures that the Health Policy Commission will have a busy couple of years, as the Act requires the Commission to produce—or participate in—comprehensive reports on telehealth, payment for services provided by out-of-network providers, the state of Massachusetts’ health care delivery system, and COVID-19’s effect on access.