Testimony Relative to an Act Furthering Health Empowerment and Affordability by Leveraging Transformative Health Care

The Massachusetts Medical Society, on behalf of over 25,000 physicians and medical students, appreciates the opportunity to provide comment on this legislation. The Medical Society applauds the Senate for continuing to promote policies that support high-quality and high-value care in the Commonwealth. We have seen many positive trends on the cost front, including attainment of the cost benchmark again this year, and data suggesting that Massachusetts has exhibited some of the strongest containment of rates of health care growth in the country over the past five years. Physicians in Massachusetts play a central role in containing health care costs. For example, this was the fourth consecutive year that total medical expenses for physician services grew less than 2 percent, and grew slower than overall spending, an important contributing factor in the Commonwealth’s ability to beat its per capita health care cost growth benchmark. However, despite these positive trends, we also appreciate the increasing toll that health care costs are taking on physicians and their patients. Rising premiums, deductibles, drug costs, and constraints on physician time with their patients all point to the need for thoughtful health care cost containment policies. 

The Medical Society has long recognized that increasing the value of care—that is, providing high-quality care as efficiently as possible—allows the healthcare budget in the Commonwealth to stretch farther, thereby improving access to care for patients throughout the state. The Medical Society commends the Senate’s efforts to make legislative changes in pursuit of this shared goal. We urge caution, however, in determining the degree of those changes, in light of both the aforementioned positive trends in healthcare costs in Massachusetts and the present uncertainty at the federal level, which has already caused significant market instability. The legislature has already enacted a complex and fine-tuned legal framework to ensure that patients in the Massachusetts receive the high-value care for which the Commonwealth is renowned; and in such times, using a scalpel rather than a sledgehammer is wise. 

Quality Measure Alignment, Prevention & Wellness Trust Fund, Drug Pricing Transparency

The Medical Society commends the Senate, and offers its strong support, for sections pertaining to quality measure alignment, the Prevention and Wellness Trust Fund, and enhanced transparency for pharmaceutical manufacturers and pharmacy benefit managers. We believe that each of these proposals represent imminently thoughtful policies that address very specific areas of concern on the health care cost front in Massachusetts. 

The establishment of a Task Force on Quality Measurement is an important step toward improving quality and strengthening Massachusetts health system performance. The Medical Society is grateful for your commitment to achieving standardized quality measures across payers through Section 2 of the bill, as this is an important step toward improved transparency, efficiency and, ultimately quality, as we streamline the process and allow for comparisons across plans and populations. We hear regularly about the burden on physician practices that has resulted from the proliferation of competing quality metrics, all with little benefits to patients. This Task Force represents an important step forward, and we urge the Senate to continue to find ways to promote the resulting aligned quality measure set as the exclusive or at least predominant quality measure set across all payers in the Commonwealth.

The Medical Society also commends the Senate for its longstanding commitment to health care prevention, an essential component to evidence-based cost containment. We strongly support Section 67 which reinstates the Prevention and Wellness Trust Fund. The Medical Society believes that a far greater emphasis should be placed on addressing social determinants of health. The reestablishment of this Trust Fund creates the infrastructure for funding more programs that focus on wellness and prevention, and which begin to address social determinants of health- programs not often covered by traditional payers and providers. 

The Medical Society has had longstanding, mounting concerns about the costs of prescriptions drugs. Evidence shows rising pharmaceutical costs contribute greatly to increases in total medical expenditures in the state; but, more importantly, we also know that these increases are affecting patients and their access to essential medications. We therefore strongly support the sections of the legislation addressing pharmaceutical drug costs, and costs associated with pharmacy benefit managers. While the state has made tremendous strides in improving health care cost transparency and analysis over the past five years, pharmaceutical cost analyses have always been shrouded in asterisks indicating incomplete or insufficient data. The Medical Society therefore supports sections 10, 12, 21, and 30, which all will make important improvements in shining a light on pharmaceutical costs. Section 12, for example, which requires individual pharmaceutical manufacturers and pharmacy benefit managers to be required to participate, at HPC request, in the annual cost trends hearings is an important step to ensure that pharmacy costs are no longer an enigma. And the annual reports that will be put out by CHIA on pharmaceutical and pharmacy benefit manager price and fee issues, and the commensurate authority of the agency to obtain necessary data to complete these analyses, is an essential step in deepening the understanding of this sector of healthcare, to allow for further policy intervention if necessary.

Telemedicine

The Massachusetts Medical Society wishes to express concern regarding the sections of this bill dedicated to addressing telemedicine. The Medical Society was dismayed to find that the telemedicine sections include neither a consistent mandate for payers to provide coverage to patients for telemedicine services when clinically appropriate, nor any assurances of adequate reimbursement when those services are provided. Instead, the proposed language will largely codify the status quo, and will only provide protections against issues that have not been identified as problems in Massachusetts. This approach further contributes to a patchwork system of insurance requirements in an already complex system that many patients struggle to navigate and understand. 

The Medical Society was concerned to see the omission of a consistent telemedicine coverage requirement for services that can appropriately be provided via telemedicine. Such a provision would simply ensure coverage for telemedicine services that would be covered if those same services were offered in an in-person setting. Again, such policy would not constitute a mandate to cover new services, but rather, a requirement to cover services across modalities, regardless of whether those services are delivered in-person or via telemedicine. The Center for Health Information and Analysis has determined that a telemedicine bill with a coverage mandate, such as the one filed last legislative session, would have a negligible impact on costs for insurers because the number of services covered under such a bill would not increase, as stated above.

Telemedicine is an essential component of an efficient, high-quality, cost-effective healthcare system truly serious about addressing the social determinants of health and health inequity by providing access to care remotely for some of our most marginalized populations. Unfortunately, the telemedicine provisions of this bill represent a missed opportunity to expand access to telemedicine in Massachusetts. Failure to propose laws that consistently assure coverage and reimbursement for medically appropriate telemedicine services prevents Massachusetts from realizing many possible improvements to access to high-value medical care for persons with behavioral health needs, with mobility challenges, for school age children, among many others.

Research shows that ambiguous laws which do not provide coverage or reimbursement mandates, such as the telemedicine provisions in this bill, impede the uptake of telemedicine care. A recent report by the Milbank Memorial Fund, which evaluated the impact on telehealth private payer laws, noted in its findings:

“Despite passage of telehealth private payer laws, expansion of the use of telemedicine to deliver care has not moved as rapidly or expansively as state policymakers may have envisioned. This could be due to the ambiguous way most of these laws are written, often omitting critical language that could encourage provider to utilize and be reimbursed for telehealth care. This lack of clarity in the language of the private payer laws provides discretion to the private payer to establish its own disparate policies that me or not be restrictive, making it challenging for providers and patients to understand and navigate.”[1]

This point that telemedicine parity laws are needed to expand access to telemedicine is further confirmed by a recent study in Health Affairs, which concluded that states with telemedicine parity laws had a 20 percent higher rate of utilization of telemental health than in states without such laws.[2] If the legislature desires to expand access to telemedicine, data confirm that parity, not ambiguity, is needed.  

Specifically, Section 99, which provides a coverage mandate for HMO products, is ineffective. Coverage alone is not sufficient for facilitating an expansion of telemedicine, as many insurers cover certain telemedicine services, but reimburse physicians at a significantly reduced rate as compared to if the services were provided in-person. These reduced telemedicine rates are not sustainable for clinical practice, and cover neither the overhead costs of the technology nor the physician time of the visit itself. With so many studies showing equivalent quality outcomes for medical services provided via telemedicine as compared to in-person, the reimbursement should not be substantially reduced simply because of a differing modality. 

The Medical Society thus strongly supports reconsideration of the telemedicine provisions in this bill to include consistent parity in payment for telemedicine services, so that reimbursement is equivalent to the amount meted out for medically appropriate care delivered in-person. That parity is needed to correct present inequities in access to care, as reduced reimbursement for care provided through telemedicine contributes to the limits to access to high-quality care for vulnerable patients across the state of Massachusetts.

The Medical Society urges the Senate to reconsider this approach to telemedicine, and to instead revisit coverage and reimbursement provisions already put forward filed, such as Senator Lewis’s Senate Bill 549.

Out-of-Network billing

The Medical Society strongly opposes the out-of-network proposal contained in Sections 22, 106, and 118 of this bill, which are unlike any other law passed in the country. If passed, we believe that this legislation would have drastic negative impacts on access to medical care in Massachusetts by giving payers unilateral authority to underpay physicians for services provided to patients. The Medical Society has long sought to end the situation whereby patients receive unavoidable out-of-network bills. The Medical Society has crafted a legislative proposal which we believe would achieve all of the patient protections laid out in these sections, by establishing a formula that promotes the balance and sustainability that this bill lacks. That proposal has been shared with Senate staff and is attached to this testimony for your convenience.

In particular, we believe that Section 118, which fails to provide any floor for the rate of reimbursement by referencing rates “up to” the 80th percentile of charges, is inconsistent with the Provider Price Variation Report, which cautioned to not set a rate “at such a low level as to make a health plan indifferent as to whether the provider is in-or out-of-network.” This section of this bill, which would allow payers to pay physicians at any rate they desire, would create far more than an “indifference.” It would remove all incentives for payers to negotiate in good faith, and would thereby allow for the underpayment of physicians in a manner that could significantly jeopardize practice sustainability and, thus, access to care. 

The Medical Society also has concerns with the provisions set out in Section 22, which would turn the Health Policy Commission into a rate setting entity. Several states have crafted solutions to the out-of-network issue, such as our neighbors in Connecticut and New York, which dictate a sustainable formula for the rate in statute. The Medical Society urges that the legislature consider enacting an analogous statute, which would be demonstrably effective and far simpler than the alternative put forward in this bill, and which would not turn a policy entity such as HPC into a rate setting body. 

Lastly, the Medical Society wishes to again point out important patient protections already in place in statute that, with further awareness and enforcement, may address at least in part the concerns over patient’s being subjected to large bill for unavoidable out of network care. Section 6 of Chapter 176O includes a provision that requires carriers inform insureds that, “the insured shall not be responsible to pay more than the amount required for network services even if part of the medically necessary covered benefits are performed by out-of-network providers unless the insured has a reasonable opportunity to choose to have the service performed by a network provider.”

Scope of Practice

The MMS also wishes to be recorded in opposition the sections of this legislation that grant independent practice to advanced practice nurses, and to those that expand the scope of practice of optometrists and podiatrists. The MMS applauds the Senate’s goal of decreasing health care costs in the Commonwealth through this legislation, but these expansions to the scope of practice of the aforementioned health care providers would not result in costs savings, and could jeopardize the high quality of health care provided to citizens of the Commonwealth through the current statutory framework.

The MMS believes that the physician led team-based care model promotes integrated, coordinated care that utilizes all appropriate health care professionals while ensuring that physicians are available for consultation or collaboration when necessary to promote the highest quality and safety of care for patients. Physicians’ extensive medical education, required medical residencies, and, in many cases, post-residency fellowships, provide them with unique expertise and qualifications to manage care, particularly for the sickest, most complex patients. Surveys indicate that patients prefer health care teams led by physicians when care becomes complex and as patients age. The MMS supports H.2437, An Act to Promote Team Based Health Care, as a model for cooperative, integrated health care.

The MMS shares the Senate’s commitment to finding solutions to the high costs of health care in Massachusetts. We hold, however, that this legislation is an ineffective means of lowering costs. While nurse practitioners and other advanced practice nurses may be reimbursed at slightly lower rates, studies have shown that their increased utilization, referral patterns, and hospitalization rates often offset savings that might have resulted from the reduced price. Additionally, many claims of cost savings from changes in scope of practice laws put forward by the optometry community have been widely accepted as significantly inflated. 

The MMS appreciates that the Senate has heard and responded to concerns regarding many patient protections in statute for advanced practice nurses; however, a significant gap remains between the patient safeguards in place to uphold the standard of care for physician practice, and those in place to do the same for nursing practice. The legislature, in fulfilling its duty to protect patients of the Commonwealth, has over many years established a thoughtful, patient-focused framework of policies and statutory requirements that apply to physicians in light of their ability to independently provide medical care.

Specifically, the Medical Society points to the statutory requirement that all physician complete a two or three-year medical residency, to the 100 credit/hour per license cycle continuing medical education requirement, and to the online physician profile as important means by which the legislature has acted in the name of patient protection and transparency. Care provided by independent non-physician practitioners would be subject to fewer and less stringent patient protections. While the Senate has made note of the importance of these provisions for non-physician extenders, we do not believe that language goes far enough to ensure patient protection. 

Additionally, the Board of Registration in Medicine, with its unparalleled requirements and thoroughness in the licensure process, and through the unmatched sophistication and resources of its investigatory unit, also provides important protections to patients cared for by independently practicing physicians. The most important patient safety protection that can be provided to patients is to ensure that all care meets the same high standard, regardless of whether it is provided by a physician, APRN, podiatrist, optometrist, etc. Therefore, licensure boards would need similar expertise and resources to understand and uphold the medical standard of care provided by physicians. The Board of Registration in Nursing, for example, currently has seven vacancies, and only has three members trained to understand the medical standard of care. The Medical Society is concerned that patients seen by non-physicians would not have the same standard of care, protections, or assurances guaranteed to patients seen by physicians. 

Provider Price Transparency

The MMS has partnered with multiple fellow stakeholders to address system-wide mechanisms that control the forces responsible for the escalation in health care costs. These include, among others, improving the market structure for medical services through transparency of price and outcomes. The Society’s policy is to work toward improving price transparency in our healthcare system using a multi-stakeholder approach as outlined by the Institute of Medicine’s (IOM) recommendation from their report, Crossing the Quality Chasm, “that private and public purchasers, health care organizations, clinicians, and patients should work together to redesign health care processes” in the need for transparency whereas the “health care system should make information available to patients and their families that allows them to make informed decisions when selecting a health plan, hospital, or clinical practice, or choosing among alternative treatments.” 

Unfortunately, section 69 of the Senate bill, abandons this multi-stakeholder approach and mandates that health care providers bear the burden of transparency when scheduling a procedure or service or referring a patient to needed medical care. The information on health plans that providers are expected to disseminate to their patients on cost and network status is very difficult and time-consuming to obtain and fraught with inaccuracies. This undue burden negatively impacts providers’ ability to provide timely, efficient care to their patients, hindering patients’ access to high-quality care and further exacerbating inefficiencies in the health care system that increase cost. Therefore, the Society strongly opposes this section and instead recommends that health plans work with physicians and patients to disseminate this important information directly from its source. 

New Plan options for Small Group and Individuals 

The Medical Society supports access to affordable health care for all residents of the Commonwealth, and has therefore watched with concern as insurance costs have risen in the small group and individual markets in Massachusetts. While the Medical Society appreciates the need for reform of this market, Section 101 of this bill proposes several complex, novel insurance plan designs that we believe are concerning and could jeopardize patient health and market stability. Proposing entirely new insurance market designs in 20-word bullet points does not provide nearly enough detail to ensure that patients will be protected, nor to determine the effect of such plans on physicians, hospitals, and other stakeholders. We would need more details regarding each of these proposed plans before they can be endorsed in statute. 

60 days opt out

Section 106 eliminates the 60-day opt out provision for providers for the small group and individual market for the new proposed plan -- (iv) of subsection (b) of section 11 of Chapter 176J – which is “a plan in which a separate cost-sharing differential is applied to shoppable health care services among the network of providers”. 

As detailed in the section above, MMS has concerns about the actual nature of this plan in general. No specificity is provided and one is left concerned that this novel program could not provide insurance coverage to patients that meets the standards and expectations we have set in Massachusetts. We therefore oppose adding a provision to these newly proposed plans which eliminate a longstanding provision that allows physicians to opt-out of the plans at certain opportunities, such as after they are re-tiered, or in these cases, after premiums are adjusted pursuant to their previous years’ cost metrics.  The elimination of this opt-out option appears arbitrary and inconsistent. The language in 176O, Section 9A gives the plans options to pick and choose the providers who will be in their networks.  Similarly, providers can pick and choose which new plans they will join. If the plan cannot make its products attractive enough to the provider, the provider should not be mandated to participate. Eliminating a provider opt-out on these new insurance plan proposals that offer insufficient detail as to their implementation is unfair and will not be in the best interest of physicians or their patients.

Alternative Payment Thresholds

Section 116 establishes Alternative Payment Model Threshold for APM penetration and for downside risk assumption.  The imposition of a threshold for the downside risk is troubling. Assuming downside risk must be voluntary and self-determined as the financial assessments and clinical integration competencies physicians need to consider are complex. ACOs and other provider organizations should not be mandated to accept down side risk for which they are not adequately prepared to assume. This threshold for downside risk acceptance from 25 percent to 65 percent over 6 years potentially sets up requirements that could subject these organizations to assume arrangements they are not capable of managing and that should not be enforced for the sake of patients and providers alike. Further and to complicate matters, it is unclear which threshold is being proposed by using the MassHealth ACO as the base.   The statutory language about what rate of risk of the various MassHealth ACOS is unclear. 

The Medical Society supports all insurance contracting arrangements, and supports the continuum of risk arrangements currently in the marketplace. Downside risk, for physician organizations with sufficient capital, risk reserves, and population management infrastructure, is often an effective way to effectuate high-value care. Forcing these arrangements on organization without the financial or organization infrastructure to accept downside risk will jeopardize the solvency of physician organizations, and could jeopardize access to care. We therefore oppose blanket benchmarks for downside risk.

Tiering/ Aligned Measures 

The key principles used to tier physicians should strengthen patient-physician relationships, involve physicians in program design and implementation, use clinically relevant and sound performance measures, rely on data-driven analysis, and be reviewed with physicians prior to public release. However, given the complexity of our current health care system, even those tiering programs with methodologies rooted in these key principles, can result in errors. Therefore, it is essential that the tiering program outlined in the bill must include an appeals mechanism and should acknowledge the importance of consistency in the use of standardized quality measures to simplify the process across payers to improve accuracy. The Society applauds the bill’s proposal to standardize quality measures across plans and urges the adoption of standardized measures in tiering programs as well. 

This legislation also requires plans to utilize the aligned measure set established by the EOHHS and task force, may use the non-core set, and sets up the core set to be the determiner of the tier. MMS strongly advocates for simplicity, consistency, reliability and validity in measurements. The core set identified should be the only set required. Every effort must be made to synthesize the quality reporting space as it is has become a major burden on practices and is contributing along with the Electronic Health Records to physician burnout. 

MMS also had significant concerns with the first two plans proposed in Section 101 of this bill, as they are complex, novel and have the concern of jeopardizing patient health and market stability.  The last plan is also novel and complex and can be greatly confusing for patients. The Medical Society urges the legislature to develop these plans in more detail prior to encoding them in statute.  

MMS also has concerns about the legislature’s proposal to eliminate the 60-day opt out provision for providers for the small group and individual market for the new proposed plan, put forward in Section 106. The lack of specificity regarding these concept insurance plans and the elimination of this opt-out provision do not instill the proper amount of analysis and insight that should occur before new insurance plans are implemented.  Further, it is not at all clear why participation would be required.  This requirement appears arbitrary and inconsistent. The language in 176O, Section 9A gives the plans options to pick and choose the providers who will be in their networks.  Similarly, providers can pick and choose which new plans they will join. This elimination of the 60 days opt out appears to be a legitimate option and if the plan cannot make itself attractive enough to the provider, the provider should not be mandated to participate.    

The Medical Society commends the Senate for its dedication to health care cost containment. We support many provisions of this bill, as detailed at the outset, including the quality measure alignment, Prevention and Wellness Trust Fund, and attention to pharmaceutical costs. Other issues, such as telemedicine and out-of-network billing, are also issues that warrant close attention by the legislation. For these issues, we believe that alternative legislative proposals would be a more prudent path forward, to assure the uptake of telemedicine in Massachusetts, and to assure a sustainable solution for out-of-network billing which protects patients and fairly reimburses physicians for their services to ensure continued improvement in access to quality care in the Commonwealth. The Medical Society appreciates the opportunity to provide comment, and we look forward to continuing to engage on these issues and other issues for the betterment of the health care system for all patients of the Commonwealth.


[1]  Milbank Memorial Fund, Telehealth Private Payer Laws: Impact and Issues. Available at https://www.milbank.org/publications/telehealth-private-payer-laws-impact-issues/

[2] Ateev Mehrotra, Haiden A. Huskamp, Jeffrey Souza, Lori Uscher-Pines, Sherri Rose, Bruce E. Landon, Anupam B. Jena and Alisa B. Busch, Rapid Growth In Mental Health Telemedicine Use Among Rural Medicare Beneficiaries, Wide Variation Across States, Health Affairs 36, no.5 (2017):909-917.

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