On January 1, 2021, Governor Charlie Baker signed an omnibus healthcare law entitled “An Act promoting a resilient health care system that puts patients first,” which is aimed at addressing pressing healthcare issues in Massachusetts, many of which have been exacerbated by the COVID-19 pandemic.

The act addresses a wide variety of healthcare issues, such as surprise billing, advanced practitioner scope of practice, telehealth, mental health parity and healthcare accessibility. Governor Baker initially proposed several of these measures in late 2019 in “An Act to improve health care by investing in value.” While the January 2021 act incorporates many of the core concepts from the 2019 proposal, in some cases these concepts were substantially modified and new provisions (specifically, those related to addressing the COVID-19 pandemic) were introduced into the final version of the act. Key features of the act are summarized below.

Surprise Billing

In recent years, various federal and state governmental authorities have taken steps to address so-called “surprise” medical bills, which are bills considered to be significantly higher than a patient would otherwise anticipate at the time she receives the service. A “surprise bill” typically arises when an insured patient receives a bill from an out-of-network provider for services rendered in an emergency situation, or where such services were rendered by an out-of-network provider at an in-network facility.

The act:

• Requires providers to disclose their out-of-network status to patients prior to admission

• Requires providers, upon patient request, to disclose the amount to be charged for admission, a procedure, or service, including the amount for any healthcare services rendered by an out-of-network provider and any facility fees

• Requires providers making referrals to notify patients if the provider to whom the patient is referred is out-of-network for the patient

• Prohibits providers from billing an insured patient for healthcare services in excess of the applicable coinsurance, copayment, or deductible that would be imposed for such services if they were rendered by a participating provider

• Directs the Secretary of the Executive Office of Health and Human Services (EOHHS) to work with the Health Policy Commission (HPC), Center for Health Information and Analytics (CHIA), and Division of Insurance to recommend, among other things, a default rate for out-of-network billing by September 2021.

The new requirements and restrictions under the act impose additional compliance obligations for out-of-network providers that may affect patient utilization in the short term, and ultimately push providers that had previously pursued an out-of-network strategy to contract with major commercial payors in the Commonwealth. The act does not explicitly create a private right of action for patients, but directs the Department of Public Health (DPH) commissioner to implement and impose penalties for noncompliance not to exceed $2,500 per instance. Unlike similar laws in other jurisdictions, the act does not create any dispute resolution or similar mechanism for providers and insurers to determine what additional amount, if any, an out-of-network provider may be reimbursed for services rendered to an insured patient and for which such patient’s financial responsibility is limited to the applicable in-network coinsurance amount.

On December 21, 2020, the US Congress passed its own surprise billing legislation, referred to as the “No Surprises Act,” as part of the Consolidated Appropriations Act, 2021. Starting in 2022, when the federal law goes into effect, patients will only be required to pay in-network cost-sharing amounts for out-of-network emergency care and care provided by out-of-network providers at in-network facilities without the patient’s informed consent. The No Surprises Act will extend surprise billing protections to beneficiaries under plans that are regulated by the Employee Retirement Income Security Act of 1974, as well as to individuals in states without comparable state laws. The No Surprises Act defers to state-established payment amounts and dispute resolution procedures for state-regulated health plans. Therefore, if a state law already sets a payment amount for the out-of-network services covered by the federal law, or if a state has an existing surprise medical bill dispute mechanism, the state’s law will govern.

Scope of Practice

The act also expands the scope of practice for nurse anesthetists, nurse practitioners, and psychiatric nurse mental health clinical specialists (collectively, advance practice registered nurses or APRNs), allowing APRNs who meet certain qualifications (including two years of supervised practice) to practice independently and prescribe drugs to patients. This cements the DPH emergency administrative order responding to the initial wave of the COVID-19 pandemic, which lifted prescribing restrictions and physician supervision requirements for APRNs. Under the act, psychiatric nurse mental health clinical specialists also have expanded authority with respect to determinations on psychiatric evaluations, restraints, and hospitalizations.

The act also overhauls the optometrist scope of practice, adding new prescriptive authority (including both topical and oral therapeutics), allowing optometrists to treat glaucoma in certain instances, and creating a pathway for reciprocity for optometrists licensed by other jurisdictions.

Telehealth

The COVID-19 pandemic resulted in sweeping changes at the state and federal levels to expand access to telehealth services, as in-person care presented relatively more risk than telehealth or was otherwise infeasible. The act incorporates several of these emergency changes into law, focusing on parity in access and reimbursement between telehealth and in-person healthcare services. The act:

• Revises the definition of “telehealth” to include audio-only services

• Removes the requirement for providers to document barriers to in-person healthcare visits and the limitation on location settings for telehealth services [1]

• Prohibits healthcare insurers from declining coverage for healthcare services solely on the basis that such services were delivered through the use of telehealth, as long as (i) the healthcare services are otherwise covered when done in-person, and (ii) the healthcare services may be appropriately provided through telehealth

• Requires payment parity, as between copays and deductibles for in-person services and telehealth services, and extends temporary rate parity across all healthcare services for 90 days after the expiration of the COVID-19 state of emergency in the Commonwealth

• Requires, on a permanent basis, licensed hospitals, insurance companies and health maintenance organizations, medical service corporations, preferred provider organizations, and the EOHHS to ensure that the rate of payment for in-network providers of behavioral health services and chronic disease management services delivered via telehealth is no less than the rate of payment for the same services delivered in-person.

Healthcare Accessibility

Access to care and controlling healthcare spending have been decades-long priorities for Massachusetts, and the spotlight on these matters has only intensified during the COVID-19 pandemic. The act ushers in several changes to address those priorities. Under the new law:

• Massachusetts Medicaid (MassHealth) patients are no longer required to seek a primary care provider (PCP) referral prior to an urgent care visit, removing barriers to access for MassHealth patients to urgent care services

• Eligible Massachusetts community hospitals will receive enhanced monthly Medicaid payments for two years

• Insurers, including MassHealth, are required to cover all COVID-19-related emergency, inpatient, and cognitive rehabilitation services, as well as medically necessary COVID-19 testing (including for asymptomatic individuals in certain circumstances)

HPC and CHIA must analyze and produce a report on the effects of the COVID-19 pandemic, including its effects on healthcare accessibility, Massachusetts’s fiscal sustainability, the quality of healthcare services, and long-term impacts on social, economic, and health disparities.

* * * *

The changes under the act present opportunities, as well as a few challenges, for Massachusetts healthcare providers and other industry stakeholders, including the following:

• The act’s surprise billing requirements stepped away from the rigid rate setting approach initially proposed in the 2019 act and instead put the onus on state agencies to study the matter and produce a proposal on next steps by September 2021. This approach is flexible, giving stakeholders an opportunity to provide comments to EOHHS and other state agencies on a reasonable surprise billing framework. The absence of arbitration provisions in the act, however, creates significant operational uncertainty as to whether, and to what extent, an out-of-network provider may seek additional reimbursement from a third-party payor for services rendered to an insured patient in a “surprise billing” situation, and for which the patient’s financial responsibility is limited to the in-network coinsurance amount. The Secretary of EOHHS is required to analyze the advisability of establishing a process for healthcare providers or carriers to dispute the accuracy or appropriateness of a non-contracted, out-of-network commercial payment rate and to review best practices in other states.

• The increased independence for certain APRNs and the expanded scope of practice for optometrists may allow providers (including health systems) more flexibility in staffing and potentially enable them to lower costs for providing certain services (such as primary care services). Independent APRNs may also alleviate some of the PCP scarcity in the Commonwealth, especially in rural areas, allowing providers and insurers to expand their PCP networks and expand access to PCP services.

• Lastly, because the Act cements access parity and out-of-pocket expense parity for telehealth, providers can more confidently invest in expanding their telehealth services and platforms, especially relative to behavioral health services, which have been a critical backstop for delivering healthcare services during the COVID-19 pandemic.

Table of Key Provisions

Footnotes:

[1] Note: these are only state-level flexibilities, and providers should keep in mind applicable Medicare requirements.

[2] “Telehealth” means the use of synchronous or asynchronous audio, video, electronic media or other telecommunications technology, including, but not limited to: (i) interactive audio-video technology; (ii) remote patient monitoring devices; (iii) audio-only telephone; and (iv) online adaptive interviews, for the purpose of evaluating, diagnosing, consulting, prescribing, treating or monitoring of a patient’s physical health, oral health, mental health or substance use disorder condition.

[3] Additionally, the fiscal year 2021 state budget prohibits insurance carriers from denying coverage for any behavioral health service or any evaluation and management office visit solely because the two services were delivered on the same day in the same practice or facility, provided that the two services are not delivered by the same provider, or providers of the same specialty.

[4] The fiscal year 2021 state budget requires MassHealth and commercial insurers to use a standardized credentialing form so providers only need to complete one application.