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.
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.
- 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, which you can read more about here. The new federal law defers to existing state requirements with respect to state-established payment amounts, meaning that the federal law does not fully preempt or otherwise displace state payment standards. States also can continue to pass surprise billing laws and regulations in the future.
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.
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 
- 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.
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.
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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
|1.||Surprise Bills||– The act requires healthcare providers to disclose, upon request from a patient or prospective patient, 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, and to provide the patient with the estimated maximum if an exact quote is not ascertainable. The provider must notify the patient prior to admission as to whether it is an out-of-network provider.
– A provider referring a patient to another provider must notify the patient if the provider to whom the patient is referred is represented by the same provider organization and if the other provider is out-of-network.
– The act prohibits healthcare providers who do not participate in the patient’s health benefit plan from billing an insured for healthcare services in excess of the applicable coinsurance, copayment or deductible that would be imposed for such healthcare services if the services were rendered by a participating provider.
– The act directs the Secretary of the EOHHS to work with the HPC, CHIA, and Division of Insurance to recommend a default rate for out-of-network billing by September of 2021.
|2.||Scope of Practice||– The act permits nurse anesthetists, nurse practitioners, and psychiatric nurse mental health clinical specialists to prescribe drugs and practice independently if they meet certain supervised practice experience criteria.
– The “practice of optometry” and related licensure regime are revised, granting optometrists greater authority to prescribe topical and oral therapeutics, including to treat glaucoma.
– Psychiatric nurse mental health clinical specialists have expanded authority with respect to determinations on psychiatric evaluations, restraints, and hospitalizations.
|3.||Telehealth||– The definition of “telehealth” now includes audio-only services.
– A third party payor shall not require a healthcare provider to document a barrier to an in-person visit, nor limit the type of setting where telehealth services may be provided. However, patients may decline receiving services via telehealth in order to receive in-person services.
– The act prohibits insurers from denying coverage for healthcare services solely on the basis that such services were delivered using telehealth, as long as (i) the healthcare services are covered by way of in-person consultation or delivery, and (ii) the healthcare services may be appropriately provided through telehealth. Co-pays and deductibles must also be the same for in-person services and telehealth services. This applies to nonprofit hospital service corporations, medical service corporations, and health maintenance organizations.
– The Group Insurance Commission shall ensure that the rate of payment for in-network providers of behavioral health services delivered via interactive audio-video technology and audio-only telephone is no less than the rate of payment for the same behavioral health service delivered via in-person methods. This also applies to the division of medical assistance within the executive office of health and human services, insurance companies, hospital service corporations, medical service corporations, health maintenance organizations, and provider organizations.
– The Group Insurance Commission, the division of medical assistance, insurance companies, nonprofit hospital service corporations, medical service corporations, health maintenance organizations, and preferred provider organizations must ensure that the rate of payment for in-network providers of chronic disease management and primary care services delivered via telehealth is not less than the rate of payment for the same services delivered via in-person methods.
– The act requires rate parity for all telehealth services for 90 days past the COVID-19 state of emergency.
|4.||MassHealth||– The act eliminates for MassHealth beneficiaries (i) the need to obtain a referral from a PCP before urgent care visits, and (ii) requirements for care coordination with the beneficiary’s primary care physician.
– The act provides enhanced monthly Medicaid payments for two years to eligible Massachusetts community hospitals. An “eligible hospital” means a nonprofit or municipal acute care hospital that, as calculated by CHIA: (i) has a statewide relative price less than 0.90; (ii) has a public payer mix equal to or greater than 60%; and (iii) is not owned, financially consolidated, or corporately affiliated, with a provider organization that (a) owns or controls two or more acute care hospitals, and (b) has total net assets of all affiliated acute care hospitals greater than $600 million.
|5.||COVID-19||– Insurers, including MassHealth, are required to cover all COVID-19 related emergency, inpatient, and cognitive rehab services.
– The act requires coverage for medically necessary outpatient COVID-19 testing, including for asymptomatic individuals under specific circumstances outlined by the Secretary of EOHHS.
– The act directs HPC and CHIA to analyze and report on the effect of COVID-19 on healthcare accessibility; the quality of healthcare services; fiscal sustainability in the short term; and long-term policy considerations, including an examination of existing healthcare disparities due to economic, geographic, racial or other factors.
 Note: these are only state-level flexibilities, and providers should keep in mind applicable Medicare requirements.
 “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.
 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.
 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.
McDermott Will & Emery’s new Associate, Allyn N. Rosenberger also contributed to this article.