Session Laws

Be it approved by the Senate and House of Representatives in General Court assembled, pursuant to Article LXXXVII of the Amendments to the Constitution, and by the Authority of the same, as follows:

SECTION 1. Chapter 6A of the General Laws, as appearing in the 1990 Official Edition, is hereby amended by inserting, after section 16, the following section:-

Section 16A. There shall be a division of medical assistance within the executive office of health and human services. Such division shall be in the charge of a commissioner who shall be known as the commissioner of medical assistance. The commissioner of medical assistance shall administer the provisions of chapter one hundred and eighteen E. Any agency within the executive office of health and human services engaging in any activity or implementing any policy involving the delivery of services reimbursable under chapter one hundred and eighteen E, certification or licensure of providers of services under such chapter, or identification of individuals eligible for medical assistance under such chapter, shall seek review by the commissioner of medical assistance prior to engaging in any such activity or implementing any such policy.

SECTION 2. The first paragraph of section 2 of chapter 18, as appearing in the 1990 Official Edition, is hereby amended by inserting after the words medical care in line 8 the following words:- , except that such assistance shall not include medical assistance provided under chapter one hundred and eighteen E;.

SECTION 3. Paragraph (B)(h) of section 2 of chapter 18, as appearing in the 1990 Official Edition, is hereby amended by deleting, in lines 49 and 50 the words "chapters one hundred and eighteen and one hundred and eighteen E" and inserting in place thereof the following words:- chapter one hundred and eighteen.

SECTION 4. Section 5C of chapter 18, as appearing in the 1990 Official Edition is hereby amended by deleting, in lines 6 and 7 the words "or section fourteen of chapter one hundred and eighteen E".

SECTION 5. Section 5C of chapter 18, as so appearing, is hereby further amended by deleting the last sentence and inserting in place thereof the following sentence:- All vouchers submitted by a vendor shall be signed under the penalties of perjury.

SECTION 6. The second paragraph of Section 5G of chapter 18, as appearing in the 1990 Official Edition, is hereby amended by inserting after the word department, in line 7, the following words:- and the division of medical assistance.

SECTION 7. The second paragraph of section 5G of chapter 18, as so appearing, is hereby further amended by inserting after the word department, in line 8, the following words:- or the division of medical assistance.

SECTION 8. The second paragraph of Section 5G of chapter 18, as so appearing, is hereby further amended by adding at the end thereof the following sentence:- If the monies available for such repayment are insufficient to satisfy in full any competing claims of both the department and the division of medical assistance, the department and the division each shall be entitled to its respective pro rata share of such monies as are available for such repayment.

SECTION 9. The third paragraph of section 5G of chapter 18, as so appearing, is hereby further amended by inserting after the word department, in line 19, the following words:- or the division of medical assistance.

SECTION 10. The third paragraph of Section 6 of chapter 18, as appearing in the 1990 Official Edition, is hereby amended by deleting, in lines 28 through 31, the following sentence:- Such report shall include recommendations of methods to reduce the costs of the medical assistance program administered by the department under chapter one hundred and eighteen E.

SECTION 11. Section 10 of Chapter 18, as appearing in the 1990 Official Edition, is hereby amended by deleting, in line 19, the following words:- or XIX.

SECTION 12. Section 10 of Chapter 18, as so appearing, is hereby further amended by inserting after the last sentence the following sentence:- Prior to undertaking any activity or implementing any policy which would affect expenditures for medical assistance under chapter one hundred and eighteen E, including but not limited to identifying individuals eligible for such assistance under said chapter, the commissioner shall assure that such activity or policy is reviewed by the commissioner of medical assistance.

SECTION 13. Section 7 of Chapter 18B, as appearing in the 1990 Official Edition, is hereby amended by inserting, after paragraph (k), the following paragraph:-

(1) Prior to undertaking any activity or implementing any policy which would affect expenditures for medical assistance under chapter one hundred and eighteen E, including but not limited to identifying individuals eligible for such assistance under said chapter, the commissioner shall assure that such activity or policy is reviewed by the commissioner of medical assistance.

SECTION 14. Section 2 of Chapter 19, as appearing in the 1990 Official Edition, is hereby amended by inserting at the end thereof the following paragraph:-

Prior to undertaking any activity or implementing any policy which would affect expenditures for medical assistance under chapter one hundred and eighteen E, involving the delivery of services reimbursable under said chapter, certification and licensure of providers of services under said chapter, or identifying individuals eligible for such assistance under said chapter, the commissioner shall assure that such activity or policy is reviewed by the commissioner of medical assistance.

SECTION 15. Section 2 of Chapter 19B, as appearing in the 1990 Official Edition, is hereby amended by inserting at the end thereof the following paragraph:-

Prior to undertaking any activity or implementing any policy which would affect expenditures for medical assistance under chapter one hundred and eighteen E, involving the delivery of services reimbursable under said chapter, certification and licensure of providers of services under said chapter, or identifying individuals eligible for such assistance under said chapter, the commissioner shall assure that such activity or policy is reviewed by the commissioner of medical assistance.

SECTION 16. Section 2 of Chapter 111, as appearing in the 1990 Official Edition, is hereby amended by inserting at the end thereof the following paragraph:-

Prior to undertaking any activity or implementing any policy which would affect expenditures for medical assistance under chapter one hundred and eighteen E, including but not limited to the certification and licensure of providers of services under said chapter, the commissioner shall assure that such activity is reviewed by the commissioner of medical assistance.

SECTION 17. The General Laws are hereby amended by striking out Chapter 118E and inserting in place thereof the following chapter:- `tuc Chapter 118E. Division of Medical Assistance

Section 1. The division of medical assistance, established under section sixteen A of chapter six A, is hereby designated as the single state agency responsible for administering the programs of medical assistance established under this chapter. All actions of the division shall be taken by the commissioner, or at the direction of the commissioner, by such agents or subordinate officers as he or she shall determine.

Section 2. The secretary of health and human services, designated pursuant to section three of chapter six A, shall appoint, with the approval of the governor, a commissioner of medical assistance who shall serve at the pleasure of the secretary and may be removed by the secretary at any time, subject to the approval of the governor. The commissioner shall have such educational qualifications and such administrative and other experience as the secretary of health and human services determines to be necessary for the performance of the duties of commissioner. The commissioner shall appoint and may remove such agents and subordinate officers as the commissioner may deem necessary and may establish such subdivisions within the division as the commissioner deems appropriate from time to time. The position of commissioner shall be classified in accordance with section forty-five of chapter thirty and the salary shall be determined in accordance with section forty-six C of said chapter thirty.

Section 3. The commissioner shall appoint a deputy commissioner and such assistant commissioners, not to exceed four in number, as the commissioner may determine to be necessary or desirable to carry out the work of the division. The deputy and assistant commissioners shall be assigned areas of responsibility to be specified by the commissioner. The deputy and assistant commissioners shall have such educational qualifications and such administrative and other experience as the commissioner determines to be necessary for the performance of the duties of those offices.

The positions of deputy commissioner and assistant commissioner shall be classified in accordance with section forty-five of chapter thirty and the salary shall be determined in accordance with section forty-six C of said chapter thirty. If the office of the commissioner becomes vacant, the deputy commissioner shall discharge the duties and have the powers of the commissioner. During the absence or disability of the commissioner, the deputy commissioner shall discharge the duties and have the powers of the commissioner; and, if the office of the deputy commissioner is vacant or if the deputy commissioner is absent or disabled at the same time as the commissioner, an assistant commissioner designated by the commissioner shall discharge the duties and have the powers of the commissioner.

Section 4. The commissioner shall appoint a general counsel who shall be a member of the Massachusetts bar. The general counsel may hire such additional legal counsel and such other personnel, subject to appropriation, as may be deemed necessary to perform the functions of the office of general counsel.

Section 5. The commissioner may establish regional or local offices at such locations in the commonwealth as the commissioner may deem necessary to ensure the effective administration of the medical assistance programs established under this chapter. Such locations may include, but shall not be limited to, the regional or local offices of the department of public welfare.

Section 6. There shall be a medical care advisory committee which shall advise the division about health and medical care services. The committee shall have the opportunity to participate in policy development and program administration. The commissioner shall appoint members to the advisory committee on a rotating and continuous basis in such numbers and for such terms as the commissioner deems appropriate; provided that the committee shall include board-certified physicians and other representatives of the health professions who are familiar with the medical needs of low-income population groups and with the resources available and required for their care, members of consumers' groups, including medical assistance recipients, and the commissioner of the department of public welfare.

The division shall provide the committee with such staff and technical assistance as is necessary to enable the committee to make effective recommendations, and such financial arrangements as are necessary to make possible the participation of recipient members.

Section 7. In addition to all powers conferred on state agencies, the division shall have the following powers:

a. to make, amend, and repeal rules and regulations for the management of its affairs;

b. to make contracts and execute all instruments necessary or convenient for carrying out its business;

c. to acquire, own, hold, dispose of, and encumber personal property and to lease real property in the exercise of its powers, and the performance of its duties;

d. to enter into agreements or transactions with any federal, state, or municipal agency, or other public institution, or with any private individual, partnership, firm, corporation, association, or other entity;

e. to charge and collect fees, rentals and other charges as reasonable and necessary for carrying out its business;

f. to receive and administer any funds granted, given or bequeathed to its use or for a special purpose as indicated in the gift, grant, or order or decree of a court;

g. to do all acts and things necessary or convenient to carry out the powers otherwise granted under this chapter; and

h. to review, prior to implementation, any activity or policy of any agency within the executive office of human services involving the delivery of services reimbursable under this chapter, certification or licensure of providers of services under this chapter, or identification of individuals eligible for medical assistance under this chapter.

Section 8. As used in this chapter the following terms and phrases shall, unless the context clearly requires otherwise, have the following meanings:

a. "Division", the division of medical assistance within the Executive Office of Health and Human Services.

b. "Institution", any licensed hospital, any licensed nursing home, or any public medical institution which meets the requirements of the Secretary.

c. "Medicaid", the jointly funded state and federal medical assistance program established pursuant to Title XIX under section nine of this chapter.

d. "Medical assistance", payment by the department, or its agent, or any predecessor or successor agency, of all or part of the cost of the medical care and services provided to recipients of any program established under this chapter.

e. "Person", any individual who resides in the commonwealth, or any individual residing outside the commonwealth who is deemed to be a resident of the commonwealth under Title XIX.

f. "Provider", any institution, agency, individual, or other legal entity qualified under the laws of the commonwealth to perform the medical care or services for which medical assistance is available under this chapter.

g. "Public medical institution", any medical institution supported in whole or in part by public funds, either federal, state or municipal staffed by professional, medical and nursing personnel and providing medical care, in accordance with standards established through licensing or approval by the department of public health.

h. "Reside", to occupy an established place of abode with no present intention of definite and early removal, but not necessarily with the intention of remaining permanently, but in no event shall the word "reside" be construed more restrictively or less restrictively than as defined by the Secretary under Title XIX.

Confinement of a person in any nursing home, hospital, or other medical institution in the commonwealth shall not, in and of itself, be sufficient evidence to qualify such person as a resident under this chapter.

i. "Secretary", the Secretary of the United States Department of Health and Human Services, except as that term is used in section two of this chapter.

j. "Title XIX", Title XIX of the Social Security Act, 42 U.S.C. 1396 et seq.

Section 9. There is hereby established, pursuant to and in conformity with the provisions of Title XIX, a program of medical assistance, hereafter referred to in this chapter as Medicaid, for certain residents of the commonwealth.

Medicaid benefits shall be available to all persons eligible for financial assistance under the provisions of chapter one hundred and eighteen and Title IV of the Social Security Act and to all persons who are eligible for supplemental security income payments on account of age or disability under the provisions of Title XVI of said Social Security Act or for assistance under the provisions of chapter one hundred and eighteen A. Such benefits may also be made available to other persons who would be eligible for financial assistance under any of the foregoing provisions but for income or resources, provided that such persons meet the financial eligibility requirements of Title XIX; provided, further, that said benefits shall be available to otherwise eligible persons seeking admission to and residents of long-term care facilities whose income and resources are insufficient to meet the cost of their medical care as determined by the financial eligibility requirements of said program.

Section 10. The division shall establish a program of medical care and assistance for pregnant women and infants who are not otherwise eligible for medical assistance under this chapter and who lack private health insurance coverage or have a health insurance policy which does not cover all medically necessary care which is covered by the program established by this section. The division shall furnish such medical assistance to each such pregnant woman and infants residing in the commonwealth in accordance with standards of eligibility established in section 1902 of the Social Security Act, as amended by section 4101 of the Omnibus Budget Reconciliation Act of 1987 (P. L. 100-203); provided, however, that the income eligibility standards shall not be less than one hundred and eighty-five per cent of the non-farm income poverty guidelines as defined by the United States Office of Management and Budget.

The division shall, to the extent permitted by Title XIX, provide for Medicaid in the form of ambulatory care to pregnant women who are presumptively eligible for Medicaid for the period of time prescribed by federal law. The division shall promulgate regulations to implement this section, which shall require health care providers to notify such pregnant women of the need to file an application for Medicaid and which shall set standards to be used by providers in determining presumptive eligibility.

Section 11. The division shall, within the limits of the funds which have been appropriated for the purposes of this chapter, cooperate with the appropriate federal authorities in the administration of Title XIX, under which federal funds are available to the commonwealth for Medicaid, and accept for the commonwealth any benefits thereof. The state treasurer shall be the custodian of such funds allocated to the commonwealth.

Section 12. In administering the medical assistance programs established under this chapter, the division shall formulate such methods, policies, procedures, standards and criteria, except medical standards and criteria, as may be necessary for the proper and efficient operation of those programs in a manner consistent with simplicity of administration and the best interests of recipients.

The division may enter into any types of contracts with providers of medical services as the division deems necessary to carry out the provisions of this chapter, including, but not limited to, selective contracts, volume purchase contracts, preferred provider contracts and managed care contracts; provided, that such contracts are reviewed by the rate setting commission and the executive office of administration and finance. The division may negotiate the rate of reimbursement to the provider under any such contract, and any such negotiated rate shall not be subject to the provisions of section thirty-two of chapter six A.

The division may take such further action, consistent with law and within the limits of available funds appropriated for the purposes of this chapter, as may be necessary for carrying out the purposes of this program in conformity with all requirements governing the availability of federal financial participation to the commonwealth under said Title XIX, including said provisions relative to notice and reimbursement, a uniform system of records and accounts to be kept by the regional or local offices and the manner and form of making reports to the division.

The division may adopt, promulgate, amend and rescind rules and regulations suitable or necessary to carry out the provisions of this chapter and said Title XIX and any amendments thereto, and as interpreted from time to time by the Secretary.

Such rules and regulations shall include provisions requiring providers of long term care services intending to withdraw from the medical assistance programs established by this chapter to provide for the continuing care or appropriate relocation of the medical assistance recipients residing in their facilities.

The division may require any long term care provider expressing its intention to withdraw from said programs whose facility is able to meet the standards for participation in said programs to enter into a standard provider contract with the division under which the provider continues to provide services only to those patients residing in its facility at the time the provider announces its intention to withdraw who are eligible for medical assistance or who become eligible for medical assistance during the term of the contract. Such rules and regulations shall also provide that any such provider who has withdrawn from said programs may not participate in said programs for a period of time, not exceeding five years, specified in said regulations.

Such rules and regulations shall also provide that any long term care provider whose facility is unable to meet the standards for participation in said programs shall continue to provide care to the medical assistance recipients residing in its facility until the provider has arranged for the complete relocation of all the medical assistance recipients residing in its facility in accordance with such rules and regulations and with the regulations of the department of public health.

Any provider who violates the provisions of this section by failing to provide care to a medical assistance recipient residing in its facility shall be subject to a fine of one thousand dollars for each violation.

As a method of providing medical assistance to recipients, the division is authorized to contract with any fiscal agent, institution, health insurer, health maintenance organization, health plan, management service or consultant firm consistent with the requirements of 42 CFR Part 434 to administer all or part of the services and benefits available under this chapter; or, to establish a health maintenance organization; provided, that said health maintenance organization shall be operated in accordance with applicable federal and state law.

Section 13. The division shall review, and approve or disapprove, any change in rates or in rate methodology proposed by the rate setting commission. The division shall review such proposed rate changes for consistency with division policy and federal requirements, and with the available funding authorized in the final budget for each fiscal year prior to certification of such rates by the commission; provided, that the division shall not disapprove a rate increase solely based on the availability of funding if the federal health care financing administration provides written documentation that federal reimbursement would be denied as a result of said disapproval and said documentation is submitted to the house and senate committees on ways and means. The division shall, whenever it disapproves a rate increase, submit the reasons for disapproval to the commission together with such recommendations for changes. Such disapproval and recommendations for changes, if any, shall be submitted to the commission after the division is notified that the commission intends to propose a rate increase for any class of provider under Title XIX but in no event later than the date of the public hearing held by the commission regarding such rate change; provided that no rates shall take effect without the approval of the division. The commission and the division shall provide documentation on the reasons for increases in any class of approved rates that exceed the medical component of the consumer price index to the house and senate committees on ways and means. The commission shall supply the division with all statistical information necessary to carry out the division's review responsibilities under this section. Notwithstanding the foregoing, the division shall not review, approve, or disapprove any such rate set pursuant to chapter twenty-three of the acts of nineteen hundred and eighty-eight.

If projected payments from rates necessary to conform to applicable requirements of Title XIX are estimated by the division to exceed the amount of funding appropriated for such purpose in the budget for such fiscal year, the division and the commission shall jointly prepare and submit to the Governor a proposal for the minimum amount of supplemental funding necessary to satisfy the requirements of the state plan developed by the division under Title XIX.

Section 14. Pursuant to the second paragraph of section twelve, the division shall enter into negotiated rate contracts with nursing homes that recognize the acquisition cost, or portion thereof which exceeds the allowable basis under relevant regulations of the rate setting commission, as the allowable basis of fixed assets where there has been a change of ownership effective on or after January first, nineteen hundred and eighty-seven, provided that:

(a) (i) the new owner has received a determination letter from the Internal Revenue Service that it is an organization described in section 501(c)(3) of the Internal Revenue Code of 1986; and

(ii) the new owner is a nonprofit hospital within the commonwealth licensed by the department of public health, or is a nonprofit organization affiliated with a nonprofit hospital which is organized and operated for the benefit of, to perform one or more functions of, or to carry out one or more of the purposes of the nonprofit hospital it is affiliated with, including operation of freestanding nursing homes licensed by the department of public health; and

(iii) the new owner demonstrates that on average not less than eighty-five percent of its patient population is a recipient of medical assistance under this chapter; and

(iv) the new owner demonstrates that in the nonprofit hospital it operates it has an average of administratively necessary patient days that is fifty percent of the regional average of administratively necessary patient days as calculated by the division; and

(v) the new owner demonstrates that in the nonprofit hospital it operates that on average it has not less than eighty percent occupancy of medical or surgical beds; and

(vi) the change of ownership did not occur between a person or organization which is associated or affiliated with or has control of or is controlled by the new owner or is related to the new owner or any director, trustee, partner, shareholder or administrator of the new owner by common ownership or control or in a manner specified in section 267(b) and (c) of the Internal Revenue Code of 1986; and

(vii) the change of ownership was made for reasonable consideration; and

(viii) the change in ownership was a bona fide transfer of all powers and indicia of ownership; and

(ix) the change of ownership manifested an intent to sell the assets of the facility rather than implement a method of financing, or refinancing; and

(x) the department of public health certifies the need for additional beds for publicly-assisted residents in the geographical area; and

(xi) such geographical area is reasonably isolated which isolation creates difficulties in obtaining access to nursing home care; and

(xii) the new owner obtains at least two independent appraisals of the property; and

(xiii) the division and the department of public health have determined that the transaction is necessary to ensure the safety of patients as evidenced by current or anticipated delicensure or decertification proceeding against the current owner; provided however, that the provisions of clauses (xii) and (xiii) of paragraph (a) shall only apply to nursing homes acquired after July first, nineteen hundred and ninety; or

(b) (i) the new owner acquired the facility from an acute care hospital to operate the nursing home pursuant to relief granted to the acute care hospital by the acute care hospital conversion board pursuant to section one hundred and one of chapter six A; and

(ii) the acute care hospital conversion board approves the new owner's acquisition cost; and

(iii) the new owner demonstrates that on average, not less than eighty-five percent of its patient population is receiving medical assistance under this chapter.

If the division is unable to calculate regional averages for administratively necessary patient days pursuant to clause (a)(iv) of this section, the new owner shall be able to receive the acquisition cost, or the portion thereof which exceeds the allowable basis under relevant regulations of the rate setting commission, as the allowable basis of the fixed assets as a result of a change of ownership if the new owner otherwise complies with clauses (i) to (iii), inclusive, and clauses (v) to (xiii), inclusive of paragraph (a).

Section 14A. The division shall treat admissions to acute care hospitals and chronic disease or rehabilitation hospitals as equivalent for purposes of reimbursing nursing homes to reserve beds for medical assistance recipients during brief absences from nursing homes by such recipients to obtain hospital care.

Section 15. The division shall provide Medicaid benefits for such medical care or services as Title XIX and regulations adopted thereunder by the secretary require. The division may provide Medicaid benefits for such additional medical care or services as Title XIX and said regulations permit.

The amount, duration and scope of the aforesaid care and services shall be determined by the rules and regulations of the division, provided such rules and regulations are consistent with the provisions of this chapter and Title XIX. Such rules and regulations may include appropriate limitations on care and services based on such criteria as medical necessity or utilization control procedures.

The division shall develop regulations and procedures requiring a recipient of medical assistance under this chapter to participate in a program of managed care, upon determination by the department, pursuant to the provisions of 42 USC 1396n(a), subject to appeal by the recipient, that said recipient has demonstrated a pattern of excessive or inappropriate utilization of a covered benefit.

Any person who is eligible for assistance under the provisions of this chapter who is not maintaining his or her own home and who is receiving care in a licensed nursing home, a licensed chronic hospital, a licensed rest home, an approved public medical institution, or a public psychiatric institution shall retain the first sixty dollars of monthly income for clothing, personal needs allowance, and leisure time activities. If there is no such income, or if such income is less than sixty dollars, the recipient shall be paid, in advance, the difference between such income and sixty dollars.

The division shall provide by regulation that personal laundry costs shall not be charged to the amount retained by or paid to the recipient pursuant to this section. Personal laundry costs shall be reimbursed through rates paid to such institutions.

Section 16. The division shall establish a program of primary and supplemental medical care and assistance for certain disabled residents of the commonwealth who are not eligible for medical assistance pursuant to Title XIX of the federal Social Security Act. The benefits of such program shall be available to all such persons (1) who are not covered for medical costs relative to their disability by an employer's group health insurance plan, (2) who are not eligible for medical assistance under any work incentive programs with federal participation, and (3) who, if not engaged in substantial gainful activity, would meet all eligibility requirements for supplemental security income under the provisions of Title XVI of said Social Security Act at the time of application for said program of medical care and assistance. Subsequent to their enrollment in said program, such disabled residents may continue in enrollment in said program notwithstanding the fact that they no longer meet the financial requirements of said Title XVI in accordance with income requirements established by the division. The cost of such program shall be funded, in part, by premium contributions, co-payments, and deductibles contributed by enrollees according to a sliding scale schedule designed by the division.

The division shall further establish a program of assistance for persons forced to leave employment due to the onset or worsening of a severe and chronic disability or illness or whose access to employer sponsored health insurance is jeopardized by a substantial reduction in work hours as a result of such disability or illness. The benefits of such program shall provide for assistance in paying health insurance premiums offered through a group plan of health insurance sponsored by the employer for those persons whose continuing disability or illness would likely result in their becoming eligible for benefits under this chapter; provided that the cost of such benefits shall be paid, in part, by payments from such persons according to a sliding fee schedule established by the division.

Section 16A. The division shall establish a program of medical care and assistance for certain disabled children of the commonwealth. The benefits of such program shall be available to children who are not eligible for medical assistance programs with federal financial participation and who would meet the disability requirements for supplemental security income under the provisions of Title XVI of the Social Security Act. The cost of such program shall be funded, in part, by premium contributions, co-payments and deductibles according to a sliding scale schedule designed by the division.

Section 17. Multiple source drugs listed in the Massachusetts list of interchangeable drug products established pursuant to the provisions of section thirteen of chapter seventeen of the General Laws and regulations adopted thereunder shall not be reimbursable except for the "Massachusetts maximum allowable cost", as defined by regulations of the department, unless the division grants prior authorization based upon the provision of written documentation by the practitioner to the division that satisfactorily demonstrates that a recipient's medical condition requires the use of a nongeneric drug or unless the practitioner writes on the face of the prescription in his or her own handwriting the words "brand name medically necessary" under the words "no substitution" in a manner consistent with applicable state law; provided that a pharmacist dispensing in accordance with this section shall be exempt from the provisions of the fourth paragraph of section twelve D of chapter one hundred and twelve.

Section 18. The division may purchase on behalf of any person eligible for medical assistance under this chapter medical insurance furnished in accordance with the provisions of chapter one hundred and seventy-five, one hundred and seventy-six A, one hundred and seventy-six B or one hundred and seventy-six G, provided that such medical insurance, in conjunction with any supplemental coverage that may be available to such person by the division under this chapter, would enable such person to obtain medical care and services comparable to those afforded any other similar eligible person under this chapter, at no greater cost to such person or the division. The third party liability unit of the division is hereby authorized to establish services and procedures which seek to maximize and coordinate the utilization of health care benefits provided under any such purchase of medical insurance for such person.

Section 19. The division shall establish methods of approving services to be performed as a prerequisite to extending medical assistance. Said methods of prior approval may include, but need not be limited to: (1) in the case of restorative dentistry, or dentures, examination of proposed recipients or of diagnostic information regarding proposed recipients by dental consultants of the department; (2) in the case of orthodontic services, procedures which assure that medical assistance will be provided only for severe handicapping malocclusions; and (3) in the case of transportation to obtain medical care, a statement from the attending physician certifying that such transportation is necessary due to a physical disability.

Assistance under this chapter for nursing services for persons twenty years of age or under may be available only after a medical review team under the supervision or with the approval of the department of public health, in cooperation with the division and the departments of mental health and mental retardation, approves such services for such persons. The department of public health, in cooperation with the division and such other departments, shall promulgate rules and regulations for such services, and any person or facility offering such services shall receive prior certification from the department of public health.

The division shall establish methods of random posttreatment examination of recipients of medical care or services under this chapter in order to assure that the care or services for which the division is billed were actually performed as described.

Section 20. An application or reapplication by an individual for medical assistance shall be made to the division on forms prepared by the division. Such forms shall include but not be limited to the following:- the name, address and social security number of the applicant and the name, address and social security number of any member of the family sixteen years of age and older, the total income from wages, salaries, pensions, fees, tips, bonuses and all other sources of income of all such persons, the ownership and description of any motor vehicle or boat, or trailer, or similar assets readily convertible into cash owned by any member of the family. Such form shall require that the applicant provide information to determine his or her eligibility for medical assistance under penalty of perjury.

An institution furnishing services under this chapter shall have the right to make such application on behalf of an individual only if, and to the extent, provided by regulations of the division.

Section 21. Upon receipt of such application, the division shall make full inquiry concerning the eligibility of the applicant, his or her need for medical assistance and his or her resources and income, if any, and, shall make its decision: (1) within ninety days after receipt of such application for applicants who apply for medical assistance on the basis of a disability; and (2) within forty-five days after receipt of such application for all other persons. At the time of such initial decision, and in the event of any subsequent decision, the applicant or recipient shall be notified in writing of such decision and shall be informed of the reason therefor and of his right to appeal and of the method by which he may appeal under this chapter.

The division may enter into an agreement with the secretary, or with any government or private agency, whereby the secretary or agency shall determine on behalf of the division the eligibility for medical assistance under this chapter of all or certain applicants for such assistance.

Section 22. In this section, the word "claimant" shall mean any person who suffers any loss from property damage, accident, illness, injury or otherwise for which monies may be provided by liability insurance, worker's compensation, or any other third party.

When any claimant receives payment from a liability or worker's compensation insurer or any other third party, the claimant shall repay to the division an amount equal to the benefits provided under any medical assistance program administered by the division to or on behalf of the claimant, the claimant's spouse or children, or any individual whom the claimant is required by law to support, but only to the extent that such benefits were provided as a result of the property damage, accident, illness, injury or other loss suffered by the claimant; and the application for and receipt of such benefits shall, after notification has been given to the third party, operate as a lien to secure repayment against monies which may be provided by liability insurance, worker's compensation, or any other third party up to the amount of such benefits. If the monies available for such repayment are insufficient to satisfy in full any competing claims of both the department and the division of medical assistance, the department and the division each shall be entitled to its respective pro rata share of such monies as are available for such repayment.

If benefits are provided under any medical assistance program administered by the division as a result of property damage, accident, illness, injury or loss for which a third party may be liable, the division shall require the person receiving such benefits to assign to the commonwealth an amount equal to the benefits so provided from the proceeds of any such claim against the third party.

A claimant shall notify the division in writing upon commencement by him or her of a civil action or other proceeding to establish the liability of any third party or to collect monies payable under accident, liability, or health insurance, worker's compensation, or from any other source by reason of the accident, injury or disability referred to in the preceding paragraph.

The commonwealth shall be subrogated to a claimant's entire cause of action or right to proceed against any third party and to a claimant's claim for monies to the extent of assistance provided under this chapter. The division, with the consent of the attorney general, may, by attorneys employed or selected by it, commence a civil action or other proceeding on behalf of the commonwealth to establish the liability of any third party or to collect such monies if a claimant does not commence such a civil action or other proceedings within nine months after the date of the accident, injury, or onset of disease or other disability.

Section 23. Notwithstanding any other provision of general or special law, rule or regulation, the division shall be subrogated to the right of any recipient of medical assistance under this chapter to proceed against any health care insurer that is or may be liable to pay for covered services obtained by a recipient of medical assistance to the extent of any medical benefits provided by the division on behalf of the recipient or his or her dependents.

A recipient of medical assistance or any person legally obligated to support and have actual or legal custody of a recipient of medical assistance shall inform the division of any health insurance available to such recipient upon initial application and redetermination for eligibility for assistance and shall make known the nature and extent of any health insurance coverage to any person or institution that provides medical benefits to the recipient or his or her dependent.

No policy for health insurance for health care delivery administered, issued or renewed in the commonwealth shall contain any provision denying or reducing benefits to a person who is eligible for or who is receiving medical assistance under this chapter.

A provider of medical assistance under this chapter shall determine whether any recipient for whom it provides medical care or services that are or may be eligible for reimbursement pursuant to this chapter is a subscriber or beneficiary of a health insurance plan. The division is the payor of last resort, and accordingly a provider shall request payment for medical care or services it provides from a health insurer which is or may be liable for the medical care or services so provided, before payment is requested from the division.

Payment by the division under the medical assistance programs established by this chapter shall constitute payment in full; subsequent to any such payment a provider may not recover from any health insurer an amount greater than the amount so paid by the division for any service for which the division is to be the payor of last resort.

Notwithstanding any provision of law, all health insurers doing business in the commonwealth shall provide information to the division to the extent sufficient to identify persons who are recipients of medical assistance under this chapter and who are also beneficiaries under any policy for health insurance in force and effect in the commonwealth.

Section 24. A treasurer of a savings bank, national bank, trust company, cooperative bank, benefit association, insurance company or safe deposit company authorized to do business in the commonwealth who, upon written request, signed by an authorized employee or agent of the division, unreasonably refuses to inform such employee or agent of the amount deposited in the corporation or association to the credit of a person named in such request as a charge upon the commonwealth, or as an applicant to the commonwealth for medical assistance under this chapter, or who willfully renders false information in reply to such request, shall forfeit fifty dollars to the use of the commonwealth. Upon such request, a treasurer, as aforesaid shall furnish the records on deposits and withdrawals during the past five years, concerning any applicant for or recipient of medical assistance under this chapter to any authorized employee or agent of the division.

Section 25. For purposes of determining an individual's eligibility for Medicaid, the following income and resources shall be exempt and shall neither be taken into consideration nor, except as permitted under Title XIX, required to be applied toward the payment or part payment of Medicaid benefits:

(1) Monthly income in an amount not exceeding the level of the minimum dollar amount required under Title XIX;

(2) ownership of one's residence, including furniture, which is essential and appropriate to the needs of the household except as permitted by section 1902(a)(10)(C) of Title XIX. In the case of an applicant or recipient for whom a medical determination has been made, after notice and opportunity for an appeal and hearing, that he or she cannot reasonably be expected to return to live in the residence, the residence will be considered a countable asset unless:

(A) the division determines that counting the residence as an asset would cause undue hardship; or

(B) any one of the following persons continue or would continue to reside therein: (i) the applicant or recipient's spouse; or (ii) a child of the applicant or recipient who is under twenty-one years of age or who is blind or permanently disabled; or (iii) a sibling of the applicant or recipient who has an equity interest in the home and who was residing there for a period of at least one year immediately before the date of the applicant's admission to the medical institution; or (iv) a son or daughter of the applicant or recipient who was residing in the applicant or recipient's home for a period of at least two years immediately before the date of the applicant's admission to the medical institution, and who establishes to the satisfaction of the division that he or she provided care to the applicant which permitted the applicant to reside at the home rather than in an institution; or

(C) the applicant or recipient has obtained long term care insurance whose coverage meets the requirements of 211 C.M.R. 65.00.

In the case of an applicant or recipient for whom such a medical determination has been made under this subsection, the division shall continue to consider the residence as a noncountable asset for a period of not less than three months following such medical determination in order that the applicant or recipient may make funds available for his or her medical needs based on his or her equity interest in such residence.

(3) personal property in an amount not exceeding the minimum resource amount required under Title XIX;

(4) cemetery plots purchased for the use of the applicant or recipient;

(5) funds not to exceed the minimum amount required under Title XIX deposited in a trust account and so reserved for the payment of funeral and burial expenses of the applicant or recipient including, but not limited to, the purchase of a plot, the opening of the grave, the fee for religious services, and the monument inscription; the cash surrender value of burial insurance, so called, or prepaid irrevocable burial contracts, so called.

In any case where the monthly income of an applicant or recipient is in excess of the exemptions allowed, the applicant or recipient, if otherwise eligible for Medicaid under this chapter, shall be liable to pay to the provider of medical care or service an amount which shall be equal to the excess income for a period of six consecutive months, which includes the period when such service was provided.

In determining responsibility of any individual for any Medicaid applicant or recipient, such responsibility shall be limited to a person for his spouse and parents for children under the age of eighteen. The income and assets of any Medicaid applicant or recipient under eighteen years of age who lives with his or her parent shall be deemed to include the income and assets of the parent of such applicant or recipient. The income and assets of any Medicaid applicant or recipient under eighteen years of age who does not live with his or her parents shall include only the income and assets that are actually contributed to the applicant or recipient by the parent.

Notwithstanding the first paragraph of this section, the division may require Medicaid recipients to pay enrollment fees, premiums, deductibles, coinsurance, copayments or similar cost sharing charges as participants in managed care plans implemented by the division, provided that any waivers of Title XIX provisions regarding such recipient cost sharing are obtained from the secretary in conjunction with any other federal approvals and waivers necessary to implement said managed care plans; provided further that, in the absence of such managed care plans, the division shall require, to the extent permitted by Title XIX, that recipients, if eligible for such benefits, be liable for a copayment of not more than fifty cents toward the purchase of each pharmaceutical product, including prescription drugs and over-the-counter drugs, and to require the copayment of three dollars for the use of emergency room services in acute care hospitals for the treatment of nonemergency conditions.

Section 26. The division shall issue a numbered identification card to persons receiving medical assistance under this chapter. Such card shall bear the date of issue and shall be presented to providers as verification of eligibility for medical assistance. The division shall establish by rules and regulations such procedures as may be necessary for the purpose of recalling identification on termination of eligibility.

Section 27. If an individual has become eligible under this chapter, eligibility shall be reconsidered or redetermined:

(a) When required on the basis of information the division has obtained previously about anticipated changes in the individual's situation.

(b) Promptly within thirty days, after a report is obtained from any source which indicates that changes in the individual's circumstances may affect the amount of assistance to which he or she is entitled or may make him or her ineligible.

(c) Periodically, but at least once in every six months.

(d) If any recipient shall by gift, inheritance, or other manner acquire additional assets during any twelve month interval following determination of his or her eligibility, the recipient shall immediately report such acquisition to the division which shall immediately make a reevaluation of such recipient's eligibility.

Section 28. In determining the resources of an individual, there shall be included, consistent with Title XIX, any interest in real or personal property owned by such individual with regard to which such individual made an assignment or transfer at less than fair market value, provided, however, that this provision may be waived if the department determines that application of the provision would work an undue hardship on a particular individual. For purposes of making this determination, the amount of uncompensated value which is included in said resources shall be reduced by incurred medical bills, for which the individual is liable. Said medical bills cannot also be applied to excess income as provided in section twenty-five of this chapter. This section shall apply only to assignments or transfers made after June thirtieth, nineteen hundred and eighty-three.

Section 29. Whenever an individual who is receiving medical assistance under this chapter transfers an interest in real or personal property, such individual shall notify the division. Such notice shall include, at a minimum, the individual's name, social security number or, if different, medical assistance identification number, the date of transfer and the dollar value, if any, paid or received by the individual receiving benefits under this chapter.

Section 30. When the division determines that an applicant is eligible for Medicaid, it shall pay for eligible care and services furnished on or after the date of application. Payment shall be made to the person or institution supplying medical services. The date of application for Medicaid of an individual who has applied for financial assistance under the provisions of chapter one hundred and eighteen A or section one hundred and thirty-one of chapter six, shall be deemed to be the date of application for such financial assistance, whether or not such financial assistance is granted. If consistent with Title XIX of the federal Social Security Act and the regulations established thereunder, the division shall pay for eligible care and services furnished to an eligible applicant during the three months immediately prior to the month in which the applicant filed his or her application; provided, however, that, at the time such care or services are furnished to such individual, that individual upon application would have been eligible for Medicaid pursuant to this chapter.

Section 31. (Until June 30, 1995, this section reads as follows:)

There shall be no adjustment or recovery of medical assistance correctly paid except (a) from the estate of an individual who was an inpatient in a nursing facility or other medical institution when he or she received such assistance, or (b) from the estate of an individual who was sixty-five years of age or older when he or she received such assistance; provided however, that in the case of an individual under clause (a) or (b), the adjustment or recovery may be made only after the death of the surviving spouse, if any, and only at a time when he or she has no surviving child who is under age twenty-one or is blind or permanently and totally disabled. Recovery of assistance provided to individuals under age sixty-five in a nursing facility or other medical institution under clause (a) shall be limited to assistance provided on or after March twenty-second nineteen ninety-one.

The division is authorized to solicit and collect contributions from relatives of any individual who is a patient in a long-term care institution and who is an applicant for or recipient of medical assistance under this chapter.

The division is authorized to establish contribution programs that shall entail mandatory or voluntary contributions; provided, however, that under a program of mandatory contributions, no contribution greater than two percent of the total medical assistance payment made annually by the department to the long-term care institution on behalf of said patient shall be required; provided, further, that no contributions shall be required of any person who is a member of a household with an income that is less than three hundred percent of the federal poverty standard; and provided, further, that for this purpose income shall be determined after any expenditures required by this chapter. The division may also solicit and collect voluntary contributions from any member of the general public who wishes to make such a contribution. For the purposes of this section, "relatives" of such individual shall mean his or her spouse, his or her children by blood, marriage, or adoption, his or her grandchildren who have reached the age of twenty-one; or, where such individual is a minor in a long-term care institution, his or her parents and grandparents by blood or adoption.

The division shall send to the relatives of such individual, at least annually, an itemized list of all payments made by the medical assistance program on behalf of said individual, together with, in the case of a voluntary program, a request for voluntary contributions or, in the case of a mandatory program, a bill for two percent of such total charges which shall be the obligation of the relative to pay to the division. The division is authorized to request of all said individuals a listing of relatives and other pertinent information, and to promulgate regulations for the administration of the contributions programs. The division shall issue to each person who makes a contribution under this section a receipt for the contribution.

The making of such contributions by relatives of an applicant for or recipient of medical assistance shall not be a precondition of or requirement for obtaining or maintaining eligibility for medical assistance under this chapter, nor shall any such contributions be considered income or resources available to an applicant for or recipient of medical assistance if such contributions are made by an individual who is not a responsible relative as defined by the provisions of Title XIX of the Social Security Act as amended and the regulations promulgated thereunder.

Contributions made pursuant to the provisions of this section shall be deposited in the Long-Term Care Trust Fund established pursuant to section thirty-two A.

(From and after June 30, 1995, this section reads as follows:)

There shall be no adjustment or recovery of medical assistance correctly paid except (a) from the estate of an individual who was an inpatient in a nursing facility or other medical institution when he or she received such assistance, or (b) from the estate of an individual who was sixty-five years of age or older when he or she received such assistance; provided, however, that in the case of an individual under clause (a) or (b), the adjustment or recovery may be made only after the death of the surviving spouse, if any, and only at a time when he or she has no surviving child who is under age twenty-one or is blind or permanently and totally disabled.

Section 32. (a) Notwithstanding any provision of law to the contrary, a petition for admission to probate of a decedent's will or for administration of a decedent's estate shall include a sworn statement that copies of said petition and death certificate have been sent to the division by certified mail. Within thirty days of a request by the division, an executor or administrator shall complete and send to the division by certified mail a form prescribed by the division and provide such further information as the division may require.

In the event a petitioner fails to send copies of the petition and death certificate to the division and the decedent received medical assistance: (1) when age sixty-five or older; or (2) at any time on or after March 22, 1991, regardless of age, while an inpatient in a nursing facility or other medical institution, any person receiving a distribution of assets from the decedent's estate shall be liable to the division to the extent of such distribution.

(b) The division may present claims against a decedent's estate as follows:

(1) the division may within four months after approval of the official bond of the executor or administrator file a written statement of the amount claimed under section thirty-one of this chapter with the registry of probate where the petition was filed and deliver or mail a copy thereof to the executor or administrator. The claim shall be deemed presented upon the filing of the claim in the registry of probate; or

(2) the division may within one year after the date of the death of the decedent commence an action under the provisions of section nine of chapter one hundred and ninety-seven.

As to claims presented by written statement as provided in subparagraph (1), an executor or administrator may mail a notice to the division stating that a claim has been disallowed in whole or in part. Failure of the executor or administrator to mail a notice of disallowance to the division within sixty days after presentation of the claims shall be deemed an allowance. If, after a decision disallowing a claim, the executor or administrator changes such decision, he or she shall notify the division in writing of such change. In the event of a disallowance in whole or in part, the division may commence an action against the executor or administrator in a court of competent jurisdiction within sixty days after receipt of said notice of disallowance.

A judgment in a proceeding in any court against an executor or administrator to enforce a claim by the division against a decedent's estate shall be an allowance of the claim.

(c) Unless otherwise provided in any judgment entered against the executor or administrator, claims allowed pursuant to this section shall bear interest at the rate provided under section six B of chapter two hundred thirty-one for the period commencing four months plus sixty days after approval of the official bond of the executor or administrator.

By petition filed in the probate court, the division, if its claim has been allowed as provided herein but not paid, may seek an order directing the executor or administrator to pay the claim to the extent that funds are available for payment and for such other relief as may be required.

(d) Notice of a petition by an executor or administrator for a license to sell real estate shall be given to the division in any estate where:

(1) The division has filed a written statement of claim with the registry of probate as provided in subsection (b); or

(2) The division has filed with the registry of probate a notice, as prescribed under subsection (a) of section nine of chapter one hundred ninety-seven, that an action has been commenced.

(e) In all cases where: (1) the division determines it may have a claim against a decedent's estate; (2) a petition for administration of the decedent's estate or for admission to probate of the decedent's will has not been filed; and (3) more than one year has passed from the decedent's date of death, the division is hereby authorized to designate a public administrator to be appointed and to serve pursuant to chapter one hundred ninety-four. Said designation by the division shall include a statement of the amount claimed. This provision shall apply to all estates in which no petition for administration of the decedent's estate or for admission to probate of the decedent's will has been filed as of the effective date of this section, regardless of the decedent's date of death.

Section 32A. There is hereby established on the books of the commonwealth a Long-Term Care Trust Fund to which shall be deposited all contributions collected by the division pursuant to section thirty-one. All interest earned on the amount in said trust fund shall be deposited or retained in said trust fund.

Amounts from this trust fund may be expended, subject to appropriation, on care for recipients of long-term care benefits under this chapter or for services otherwise authorized pursuant to this chapter.

Section 33. Notwithstanding the provisions of sections thirty-one and thirty-two, a person receiving medical assistance who has obtained long term care insurance and whose coverage meets the requirements of 211 C.M.R. 65.00 shall not be liable for the payment of medical assistance correctly paid to or on such person's behalf. No mandatory contributions shall be required from such person's relatives pursuant to section thirty-one and no claims may be made by the division pursuant to sections thirty-one and thirty-two against such person's estate on account of assistance correctly paid.

Section 34. No lien or encumbrance of any kind except as may be permitted by the Secretary, shall be required from or imposed against the property of any individual prior to his death because of Medicaid benefits paid or to be paid on his behalf except pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of a Medicaid recipient.

The division shall not be required to pay a recording fee for filing a notice of lien or encumbrance or a release or discharge of a lien or encumbrance under this section.

Section 35. No claim for medical care or services provided for under this chapter shall be reimbursed if any health insurance company, non-profit hospital service corporation, medical service corporation, or other health insurer is liable for such claim under the terms of a group or individual policy providing coverage for such claim to a person eligible for assistance under this chapter. The division shall establish procedures to ensure that no such unauthorized claims are paid, including the soliciting of information regarding alternative health coverage from all applicants and recipients.

Notwithstanding the provisions of any general or special law to the contrary, chronic hospitals and skilled nursing facilities shall seek certification for Title XVIII of the Social Security Act for those services reimbursed under Title XVIII of the Social Security Act.

Notwithstanding any law to the contrary, all health insurers governed by chapters one hundred and seventy-five, one hundred and seventy-six A, one hundred and seventy-six B, one hundred and seventy-six C, one hundred and seventy-six E, one hundred and seventy-six F, and one hundred and seventy-six G, shall provide information to the division which is necessary to carry out the purposes of this section, including the names and addresses of their policyholders or subscribers.

Section 36. Participation in the medical assistance programs established under this chapter shall be limited to providers of services who have not been convicted of larceny or fraud or any other crime in connection with such services, or the billing therefor and who:

(1) indicate their intention to the division to so participate;

(2) present evidence, satisfactory to the division, of their qualifications to provide such services;

(3) agree to accept, as payment in full, the amounts paid in accordance with the fee schedules provided for under this chapter;

(4) agree to comply with all laws, rules and regulations governing the operation of the programs;

(5) participation in the programs as a skilled nursing and/or intermediate care facility shall be limited to providers who:

agree to be responsible for all overpayments owed to the division, including, in the case of transfer of ownership, the overpayments of any and all previous owners.

Section 37. The division shall distribute to all providers a copy of the rules, regulations, standards, and laws governing the medical assistance programs established by this chapter and shall establish administrative sanctions against providers, including, but not limited to, administrative fines, and, suspension or termination from the programs, for any violations of said rules, regulations, standards or laws. The division shall notify the proper professional society and licensing agency of any such violations.

Section 38. Providers shall submit to the division a bill for goods sold and services rendered not later than ninety days after the goods are sold or the services rendered, and the division shall verify no less than ten percent of said bills with the recipient of said goods or services. The division shall require that the provider maintain proof, subject to audit, of the actual delivery to recipients of services and goods for which bills are submitted. The division shall verify the accuracy of bills submitted under this section through the application of statistical sampling methods.

Said bills shall be signed under the penalties of perjury; provided, however, that an institution, as defined in clause (c) of section eight, may, in lieu of this requirement, agree in writing with the commissioner that its books and records will be available for inspection at all reasonable times by the division with respect to services rendered under the medical assistance programs administered by the division. The division may establish regulations which provide exceptions to the ninety day billing limitation. Said regulations shall not permit payment of such bills submitted more than one year after the last day of the month in which the goods are sold or the services are provided.

The division may also promulgate regulations which establish procedures for providers to appeal erroneous denials by the division of a provider's claim for payment under this chapter. Such procedures may: (1) provide for disposition of such appeal by a board comprised of division personnel with expertise in claims processing; (2) provide for summary disposition of such appeal based on a review of written submissions; and (3) require that such appeals be filed with the division within thirty days, or some other time period specified by the division, after the date that the division notifies the provider of the final denial of the claim for payment. The provider's right to payment under this chapter shall be extinguished if the provider fails to file an appeal within the time prescribed by the division.

When the division has reason to believe that a provider has received payment to which he is not entitled, the division shall notify the provider of the facts on which it bases its belief, identifying the amount believed to have been overpaid and the reasons therefor, and shall accord the provider a reasonable opportunity to submit additional data and argument to support the provider's claim for reimbursement. After consideration and review of any such information submitted by the provider, the division shall make a final determination. Any amount determined to have been overpaid shall be recoverable under the provisions of this section unless the provider files a timely claim for an adjudicatory hearing raising a material dispute of fact or law. In such adjudicatory hearing, the burden shall be on the provider to demonstrate his entitlement to the payments denied by the division. After such hearing, the commissioner shall notify the provider of his decision with reasons therefor. The decision of the commissioner shall be final and is enforceable under this section unless stayed pursuant to a court order; provided, however, that the division has given written notice of the entry and filing provisions of this section to the provider prior to any notification from the division that it has reason to believe that the provider has received a payment to which he is not entitled. Said written notice shall state that the entry and filing provisions of this section are applicable only to those claims for which the division notifies the provider, subsequent to the date of said written notice, that payments are in dispute.

If the division's determination, or an administrative review thereof, has become final and the amount overpaid remains unpaid in full or in part, the commissioner may file with the clerk of the municipal court of the city of Boston, or in the district court in the judicial district where the provider has his principal place of business, a certificate or a copy thereof under official seal, stating: the name and address of the provider, the amount owed to the commonwealth as overpayment and in default, that the time in which administrative or judicial review is permitted has expired without appeal having been taken, or, if a claim has been filed under section fourteen of chapter thirty A, that the division's determination has not been stayed. Upon such filing of a certificate stating said information, such clerk shall assign a civil docket number to such certificate and enter judgment thereon in the civil docket as in a civil action. Such entry shall include the name of the provider identified in the certificate, the amount of such overpayment in default, and the date such certificate is filed. Such certificate shall be enforceable in the same manner and to the same extent as a judgment entered by a court of competent jurisdiction; provided, however, that the rules of court governing procedures in civil cases after the entry of judgment shall not apply to certificates entered as judgments as provided herein. Retroactive rate adjustments made to the rates of institutional providers pursuant to section thirty-two of chapter six A shall not be subject to the filing and entry dispositions of this section.

No physician shall submit a claim for goods or services rendered if said physician is a salaried employee of a hospital and the hospital submits a claim for such goods or services.

Section 39. Any person or institution which knowingly makes a false representation or, contrary to a legal duty to do so, knowingly fails to disclose any material fact to the division or its agents affecting eligibility or level of benefits for the purpose of causing any person, including the person making such representations, to be supported in whole or in part by the commonwealth, or for the purpose of procuring a payment under any medical assistance program administered by the division, shall be punished by a fine of not less than two hundred nor more than five hundred dollars or by imprisonment for not more than one year.

Nothing in this section shall be construed as preventing the institution of criminal proceedings for the violation of any other law of the commonwealth.

Section 40. Any person who furnishes items or services for which payment may be made under this chapter, who: (1) knowingly and willfully makes or causes to be made any false statement or representation of a material fact in any application for any benefit or payment under this chapter; or (2) knowingly and willfully makes or causes to be made any false statement or representation of a material fact for use in determining rights to such benefit or payment; or (3) having knowledge of the occurrence of any event affecting his or her initial or continued right to any such benefit or payment, or the benefit of any other individual in whose behalf he or she has applied for or is receiving such benefit or payment, conceals or fails to disclose such an event with an intent fraudulently to secure such benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized; or (4) having made application to receive any such benefit or payment for the use and benefit of another and having received it, knowingly and willfully converts such benefits or payment other than for the use and benefit of such person, shall be punished by a fine of not more than ten thousand dollars, or by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one-half years, or by both such fine and imprisonment.

Any person who does not furnish items of services for which payment may be made under this chapter, who violates any of the provisions of clauses (1) to (4), inclusive, shall be punished by imprisonment in a jail or house of correction for not more than two and one-half years or by a fine of not more than five thousand dollars or by both such fine and imprisonment.

Section 41. Whoever solicits or receives any remuneration, including any bribe or rebate, directly or indirectly, overtly or covertly, in cash or in kind in return for purchasing, leasing, ordering or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under this chapter, or whoever offers or pays any remuneration, including any bribe or rebate, directly or indirectly, overtly or covertly, in cash or in kind to induce such person to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under this chapter shall be punished by a fine of not more than ten thousand dollars, or by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one-half years, or by both such fine and imprisonment.

This section shall not apply to a discount or other reduction in price obtained by a provider of services or other entity under this chapter if the reduction in price is properly disclosed and appropriately reflected in the costs claimed or charges made by the provider or entity under this chapter or to any amount paid by an employer to an employee, who has a bona fide employment relationship with such employer, for employment in the provision of covered items or services.

Section 42. Whoever knowingly and willfully charges for any service provided to a patient under this chapter, money or other consideration at a rate in excess of the rates established in accordance with this chapter, shall be punished by a fine of not more than ten thousand dollars, or by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one-half years, or by both such fine and imprisonment.

Section 43. Whoever knowingly and willfully charges, solicits, accepts or receives, in addition to any amount otherwise required to be paid under this chapter, any gift, money, donation, or other consideration as a precondition or guarantee of admitting a recipient of services under this chapter whether or not presently certified or otherwise lawfully approved for long term care, to a hospital or nursing facility or to expedite the admission of such recipient or as a requirement for such recipient's continued stay in such a facility shall be punished by a fine of not more than ten thousand dollars or by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one-half years or by both such fine and imprisonment.

Section 44. If any person violates the provisions of this chapter, the attorney general or a district attorney may bring a civil action, either in lieu of or in addition to a criminal prosecution, and recover three times the amount of damages sustained including the costs of investigation and litigation. No action shall be brought under this section more than six years after it accrues.

Section 45. Any action brought under this chapter may be filed in the district or superior courts of Suffolk county.

Section 46. The remedies in sections thirty-nine to forty-five, inclusive, are in addition to and do not supersede any other available remedies.

Section 46A. Any provider procuring a payment under any medical assistance program administered by the division who violates any of the provisions of sections thirty-nine to forty-six, inclusive, shall be ineligible to participate further in the program for a period of three years next subsequent to the date of conviction for said violation; provided, however, that a vendor shall not be considered in violation of said sections thirty-nine to forty-six, inclusive, upon submission of proof, to the satisfaction of the commissioner, that such violation was due solely to a clerical or administrative error.

Section 47. Any applicant for or recipient of medical assistance, or the legal representative of such applicant or recipient, aggrieved by the failure of the division to grant medical assistance or by the failure of the division to approve or reject an application within the time limits established by section twenty-one or by the withdrawal of such assistance shall have a right to a hearing, after due notice, upon appeal to the division in the manner and form prescribed by the division; provided, however, such appeal is received by the division within thirty days after official notice of the action taken by the division has been received by the applicant or recipient. Such hearing shall be conducted by the commissioner of medical assistance or a referee designated by the commissioner within the board of hearings established under section forty-eight. The commissioner or the designated referee is hereby empowered to subpoena witnesses, administer oaths, take testimony and secure the production of such books, papers, records and documents as may be relevant to such hearings. The decision of the commissioner, or of the designated referee, shall be the decision of the division. Such appeals, hearings, and decisions shall be subject to the provisions of section forty-eight.

The division may make such additional investigation as it may deem necessary and shall make such decision as to the granting of medical assistance and the amount of such assistance to be granted as in its opinion is justified and in conformity with the provisions of this chapter. Applicants or recipients affected by such decisions of the division shall, upon request, be given reasonable notice and opportunity for a hearing as provided under this section. The provisions relating to the conduct of hearings and decisions thereon made, as provided in this section, shall be equally applicable in all cases wherein the division acts upon its own motion.

The commissioner, or the referee designated by the commissioner, shall render and issue his or her decision within ninety days after the date of the filing of the appeal by the aggrieved applicant, or legal representative of an applicant. The commissioner, but not his or her designee, may for good cause shown, direct the director of the board of hearings to conduct a rehearing of the appeal. An order for such rehearing shall not be construed as indicating or implying any position by the commissioner on the merits of the appeal. The director shall send seven days' written notice to all parties, including the date, time and place of such rehearing, which shall be held at a location convenient to the person appealing, and after such rehearing the director may, not later than thirty days after the order for such rehearing, issue a superseding decision.

Section 48. There shall be within the division a board of hearings for the purpose of holding the hearings referred to herein and rendering decisions. Said board shall be under the supervision of a director appointed by the commissioner and shall be independent of all other subdivisions and personnel of the division.

Any person aggrieved by the failure of the division to render adequate medical assistance under any program of medical assistance administered by the division or to approve or reject an application for medical assistance thereunder within forty-five days after receiving such application, or aggrieved by the withdrawal of such assistance, or by coercive or otherwise improper conduct on the part of his or her social worker, shall have a right to a hearing, after due notice, upon appeal to the commissioner.

A hearing held pursuant to this section shall be conducted by a referee designated by the director at a location convenient to the person appealing and shall be conducted as an adjudicatory proceeding under chapter thirty A. The director of the board of hearings shall be responsible for the fair and efficient operation of the board in conformity with state and federal laws and regulations and for the training of referees, scheduling of hearings and the compilation of decisions. Neither the director nor any other employee of the division shall review, interfere with, change or attempt to influence any hearing decision by a referee. A referee may subpoena witnesses, administer oaths, take testimony and secure the production of such books, papers, records and documents as may be relevant to such hearing. The person appealing shall have the opportunity to confront and cross-examine all adverse witnesses and to question or refute any testimony, evidence, materials, or legal arguments. The referee shall base his or her decision solely on the testimony, evidence, materials and legal rules adduced at the hearing. The referee may reopen a hearing for the purpose of considering further testimony, evidence, materials or legal rules before rendering his or her decision and shall, if he or she reopens the hearing, send seven days' written notice to all parties of the reopening and the reasons therefor, including the date, time and place of the resumed hearing, which shall be held at a location convenient to the person appealing. The decision of the referee shall be the decision of the division.

A referee shall render and issue a decision within ninety days after the date of the filing of the aggrieved person's appeal, except that when an aggrieved person appeals the rejection of his or her application for medical assistance, or the failure to act on said application, or the failure of the division to render emergency medical assistance, the referee shall render and issue a decision within forty-five days after the date of filing of said appeal. The decision of the division shall be subject to review in accordance with the provisions of chapter thirty A.

When a hearing is requested because of termination or reduction of assistance, involving an issue of fact, or of judgment relating to the individual case, between the agency and the appellant, assistance will be continued during the period of the appeal and through the end of the month in which the final decision on the hearing is reached. If assistance has been terminated prior to timely request for fair hearing, assistance will be reinstated.

Section 49. The use or disclosure of information concerning applicants and recipients shall be limited to purposes directly connected with the administration of the medical assistance programs established under this chapter and the names of applicants and recipients shall not be published.

Section 50. To the extent feasible the division may contract with one or more federal agencies or corporations authorized to do business in the commonwealth, including nonprofit hospital and medical service corporations, to carry out the necessary administrative functions of the medical assistance programs established under this chapter. The division may contract for the underwriting of all or any part of such medical assistance programs with such corporation.

Section 51. The division, in cooperation with the department of public health and in accordance with the regulations of the secretary, shall establish processes of utilization review for care or services for which medical assistance is available under this chapter.

The division shall establish data processing and collection procedures which will: (1) monitor eligibility of recipients; (2) assure that providers are neither paid twice for the same care or service nor paid in amounts in excess of fee schedules or other applicable limits; and (3) provide the statistical data necessary for effective utilization review.

A medical professional employee of the division, or person providing medical professional counsel or services to the division on a voluntary or paid basis or an employee of a division subcontractor, shall not be liable in a civil action for damages arising out of any act, omission, proceeding or undertaking in the performance, in good-faith, of duties or responsibilities relative to any utilization review authorized or established by this chapter or by regulations promulgated by the secretary.

Section 52. The division, in cooperation with the department of public health, shall establish and maintain standards and conditions of participation for providers of all medical care and services for which medical assistance is available under this chapter.

The department of public health, in cooperation with the division shall: (1) plan for and stimulate the development of new medical resources and the expansion of existing resources; (2) stimulate and assist providers of health care and services to develop new and improved methods of delivery of services and payment for services; and (3) expand and increase the services of the department of public health to extend and improve, as far as is practicable, the availability and accessibility of the care and services for which medical assistance is available under this chapter to all recipients of medical assistance, and the coordination of these services in such manner that the best interests of the recipients are served.

SECTION 18. The first paragraph of Section 46A of chapter 152, as appearing in the 1990 Official Edition, is hereby amended by inserting after the word or, in line 20, the following words:- the division of medical assistance under.

SECTION 19. The first paragraph of Section 46A of chapter 152, as so appearing, is hereby further amended by inserting after the word welfare, in line 22, the following words:- and the division of medical assistance.

SECTION 20. The first paragraph of Section 46A of chapter 152, as so appearing, is hereby further amended by inserting after the word welfare, in line 28, the following words:- , the division of medical assistance.

SECTION 21. The first paragraph of Section 46A of chapter 152, as so appearing, is hereby further amended by deleting after the word corporations, in line 33, the word "or", and inserting after the word welfare, in line 33, the following words:- or the division of medical assistance.

SECTION 22. The second paragraph of Section 46A of chapter 152, as so appearing, is hereby amended by inserting at the end of the first sentence, the following words:- ; provided that if the amount of the award or lump sum is insufficient to satisfy in full any competing claims of both the department of public welfare and the division of medical assistance, the department and the division each shall be entitled to its respective pro rata share of such award or lump sum.

SECTION 23. Section 47 of chapter 152 of the General Laws, as appearing in the 1990 Official Edition, is hereby amended by inserting after the words eighteen, and in line 6, the words:- the division of medical assistance under.

SECTION 24. Section 47 of chapter 152, as so appearing, is hereby further amended by deleting the word "and" in line 11, and inserting after the word welfare in line 12, the words:- and the division of medical assistance.

SECTION 25. Section 7 of chapter 193 of the General Laws, as most recently amended by section 523 of chapter 133 of the acts of 1992, is hereby further amended by striking the words "department of public welfare pursuant to subsection (e) of section sixteen A" and inserting in place thereof the following words:- division of medical assistance pursuant to subsection (e) of section thirty-two.

SECTION 26. Section 4 of chapter 194 of the General Laws, as most recently amended by section 524 of chapter 133 of the acts of 1992, is hereby further amended by striking the words "department of public welfare pursuant to subsection (e) of section sixteen A" and inserting in place thereof the following words:- division of medical assistance pursuant to subsection (e) of section thirty-two.

SECTION 27. Section 6 of chapter 194 of the General Laws, as most recently amended by section 525 of chapter 133 of the acts of 1992, is hereby further amended by striking the words "department of public welfare pursuant to subsection (e) of section sixteen A" and inserting in place thereof the words:- division of medical assistance pursuant to subsection (e) of section thirty-two.

SECTION 28. Section 16 of chapter 195 of the General Laws, as most recently amended by section 526 of chapter 133 of the acts of 1992, is hereby further amended by striking the words "department of public welfare" and inserting in place thereof the words:- division of medical assistance.

SECTION 29. Section 16 of chapter 195 of the General Laws, as most recently amended by section 526 of chapter 133 of the acts of 1992, is hereby further amended by striking the words "section sixteen A" and inserting in place thereof the words:- section thirty-two.

SECTION 30. Section 16A of chapter 195 of the General Laws, as most recently amended by section 527 of chapter 133 of the acts of 1992, is hereby further amended by striking the words "department of public welfare" and inserting in place thereof the words:- division of medical assistance.

SECTION 31. Section 16A of chapter 195 of the General Laws, as most recently amended by section 527 of chapter 133 of the acts of 1992, is hereby further amended by striking the words "section 16A" and inserting in place thereof the words:- section thirty-two.

SECTION 32. Section 1 of chapter 198 of the General Laws, as most recently amended by section 528 of chapter 133 of the acts of 1992, is hereby further amended by striking the words "department of public welfare" and inserting in place thereof the words:- division of medical assistance.

SECTION 33. The secretary of health and human services shall appoint a commissioner for medical assistance immediately following the effective date of this Act. Effective upon the approval of his or her appointment by the governor, said commissioner shall have all powers necessary to prepare for the orderly and timely implementation of this act, including the power to sign contracts for services and, subject to appropriation or the transfer of funds under section 34 of this Act, to employ staff and sign leases.

SECTION 34. Notwithstanding section twenty-two of chapter twenty-nine of the general laws or any other law to the contrary, funds appropriated to the department of public welfare for expenditures related solely to medical assistance or administration of medical assistance programs shall be transferred to the division of medical assistance.

Notwithstanding section twenty-two of chapter twenty-nine of the general laws or any other law to the contrary, the commissioner of public welfare and the commissioner of medical assistance shall reasonably and equitably apportion to the department and the division those funds appropriated to the department of public welfare for expenditures related both to medical assistance and public welfare financial assistance and the administration of said programs.

All questions regarding the identification, apportionment, and the times for the transfer of such funds shall be determined by the secretary of health and human services or his designee. Notwithstanding section twenty-two of chapter twenty-nine of the general laws or any other law to the contrary, such transfer shall be made at such times as are consistent with the provisions of section 40 of this Act.

SECTION 35. The commissioner of public welfare shall transfer to the division of medical assistance all books, papers, records, documents, equipment, land, interests in land, buildings, facilities, and other property, both personal and real which, immediately prior to the times set by section 40 of this Act for the implementation of this act, are in the custody of the department of public welfare, and relate solely to or are maintained for purposes related to medical assistance; provided, that all such property held in trust shall continue to be held in trust by the division of medical assistance.

The commissioner of public welfare and the commissioner of medical assistance shall reasonably and equitably apportion to the department and the division the rights to and responsibilities for those books, papers, records, documents, equipment, land, interest in land, buildings, facilities, and other property, both personal and real which, immediately prior to the times set by section 40 of this Act for the implementation of this act, are in the custody of the department of public welfare and relate to or are maintained for purposes related both to medical assistance and public welfare financial assistance; provided, that all such property held in trust shall continue to be held in trust by the department or the division.

All questions regarding the identification of such property, the apportionment of rights to and responsibilities for such property, and the times for the transfer of such property shall be determined by the secretary of health and human services or his designee. Such transfers shall be made at such times as are consistent with the provisions of section 40 of this Act.

SECTION 36. All employees of the department of public welfare who, on January 1, 1993, performed functions related solely to medical assistance regardless of to which division within the department of public welfare any such employee was allocated on that date, shall be transferred to the division of medical assistance. All employee positions which, on January 1, 1993 regardless of whether such positions were filled, were designated for functions related solely to medical assistance, regardless of to which division within the department of public welfare any such position was allocated on that date, also shall be transferred to the division of medical assistance.

The commissioner of public welfare and the commissioner of medical assistance shall reasonably and equitably apportion to the department and the division those employees of the department of public welfare who, on January 1, 1993, performed functions related both to medical assistance and public welfare financial assistance regardless of to which division within the department of public welfare any such employee was allocated on that date. The commissioner of public welfare and the commissioner of medical assistance also shall reasonably and equitably apportion to the department and the division those employee positions which, on January 1, 1993 regardless of whether such positions were filled, were designated for functions related both to medical assistance and public welfare financial assistance regardless of to which division within the department of public welfare any such position was allocated on that date.

All questions regarding the identification of such employees and employee positions, the apportionment of such employees and employee positions, and the times for the transfer of such employees and employee positions shall be determined by the secretary of health and human services or his designee. Such transfers shall be made at such times as are consistent with the provisions of section 40 of this Act.

SECTION 37. All employees of the department of public welfare who are allocated to the division of medical assistance pursuant to section 36 of this Act, shall be transferred to the division of medical assistance without impairment of civil service status, without interruption of service within the meaning of chapter thirty-one of the General Laws, without impairment of seniority, retirement or other rights of employees, without reduction in compensation or salary grade, and without change in union representation, notwithstanding any change in title or duties resulting from such transfer. Nothing in this section shall be construed to confer upon any employee any right not held immediately prior to the date of such transfer, or to prohibit any reduction of salary or grade, transfer, reassignment, suspension, discharge, layoff or abolition of position not prohibited prior to such date.

SECTION 38. All duly existing contracts, leases, and obligations of the department of public welfare which relate solely to medical assistance and which are in force immediately prior to the time set by section 40 of this Act for the implementation of this act, shall thereafter be performed by the division of medical assistance. This paragraph shall not affect any renewal provision or option to renew contained in any such lease in existence on the date of such transfer.

The commissioner of public welfare and the commissioner of medical assistance shall reasonably and equitably determine which agency appropriately shall perform those duly existing contracts, leases, and obligations of the department of public welfare which relate both to medical assistance and public welfare financial assistance and which are in force immediately prior to the time set by section 40 of this Act for the implementation of this act. This paragraph shall not affect any renewal provision or option to renew contained in any such lease in existence on the date of any transfer resulting from operation of this paragraph.

All questions regarding the identification of such contracts, leases and obligations, the responsibility for such contracts, leases and obligations and the times for the transfer of such contracts, leases and obligations to the division of medical assistance shall be determined by the secretary of health and human services or his designee. All such transfers shall take place at such times as said secretary or designee shall determine to be consistent with the provisions of section 40 of this Act.

SECTION 39. All petitions, hearings, and other proceedings duly brought before or against, and all prosecutions and legal and other proceedings duly begun by, the department of public welfare which relate solely to medical assistance and which are pending immediately prior to the times set by section 40 of this Act for the implementation of this act, shall continue unabated and remain in force notwithstanding the passage of this act, and shall be transferred to the division of medical assistance upon such dates as are determined by the secretary of health and human services or his designee to be consistent with the provisions of section 40 of this Act.

The commissioner of public welfare and the commissioner of medical assistance shall reasonably and equitably determine which agency shall appropriately assume responsibility for those petitions, hearings, and other proceedings duly brought before or against, and all prosecutions and legal and other proceedings duly begun by, the department of public welfare which relate both to medical assistance and public welfare financial assistance and which are pending immediately prior to the times set by section 40 of this Act for the implementation of this act. All such proceedings shall continue unabated and remain in force notwithstanding the passage of this act, and shall be transferred, if appropriate, upon such dates as are determined by the secretary of health and human services or his designee to be consistent with the provisions of section 40 of this Act. Any orders, rules, and regulations duly made, and all licenses, permits, certificates, and approvals duly granted, by the department of public welfare which arise from or relate to medical assistance and which are in force immediately prior to the times set by section 40 of this Act for the implementation of this act, shall remain in force and effect unless and until superseded, revised, rescinded, or cancelled in accordance with law, by the division of medical assistance.

All questions regarding the identification of and responsibility for such petitions, hearings, prosecutions, proceedings, orders, rules, regulations, licenses, permits, certificates and approvals shall be determined by the secretary of health and human services or his designee.

SECTION 40. Implementation of this act shall commence upon the date of its effect under Section 41 of this Act, with a transition period extending until one year from that date. The commissioner of medical assistance, with the approval of the secretary of health and human services, may make agreements with the commissioner of public welfare for the department of public welfare to carry out any of the functions included under section 17 of this Act. Notwithstanding any provisions of this Act to the contrary, powers and duties vested in the department of public welfare or any board, council or official of such department and powers and duties vested in the division of medical assistance under this act shall be exercised by the department of public welfare during such transition period until such time as such power or duty shall be implemented and assumed by the division of medical assistance.

SECTION 41. This Act shall take effect upon the expiration of sixty calendar days following its presentation to the general court pursuant to Article LXXXVII of the Massachusetts Constitution. `ts