HOUSE DOCKET, NO. 2607        FILED ON: 1/19/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2181

The Commonwealth of Massachusetts

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PRESENTED BY:

Elizabeth A. Malia

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to substance use disorder diversion and treatment.

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PETITION OF:

HOUSE DOCKET, NO. 2607        FILED ON: 1/19/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2181

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act relative to substance use disorder diversion and treatment.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Section 1 of chapter 111E of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by adding the following paragraphs:-

"Addiction specialist", a licensed physician who specializes in the practice of psychiatry or addiction medicine, a licensed psychologist, a licensed independent social worker, a licensed mental health counselor, a licensed psychiatric clinical nurse specialist or a licensed alcohol and drug counselor I as defined in section 1 of chapter 111J.

"Bureau", the bureau of substance abuse services within the department of public health.

"Second drug offense", an illegal act which stands pending for trial wherein the defendant has been assigned to treatment under chapter 111E 1 time previously.

"Successful completion of treatment", when the administrator of the facility has determined that the drug dependent person, as defined by this Act, has completed the requirements set forth by the individual patient treatment plan to the best of his current ability.

SECTION 2. Said section 1 is hereby further amended by striking out the fourteenth sentence and inserting in place thereof the following sentence:-

"Director", the director of the division of rehabilitation, his designee, the assistant commissioner in charge of the bureau or his designee.

SECTION 3. Said section 1 is hereby further amended by striking out the nineteenth sentence and inserting in place thereof the following sentence:-

"Drug dependent person", a person, regardless of age, who is unable to function effectively and whose inability to do so causes, or results from, the use of a drug other than, tobacco or lawful beverages containing caffeine, and other than from a medically prescribed drug when such drug is medically indicated and the intake is proportioned to the medical need, or a person who is at risk of becoming drug dependent, as defined herein.

SECTION 4. Section 5 of said chapter 111E is hereby amended by adding the following paragraph:--

If the division is unable to comply with the provisions of this section, the bureau shall prepare and publish annually a list of facilities operating in accordance with this chapter and shall make such list available to all district and superior courts, interested attorneys and their statewide organizations, the offices of the district attorneys for each county and their statewide organizations, and probation departments and their statewide organizations within the commonwealth on an annual basis and to members of the public upon request. Such list shall include, but not be limited to, the following:

(a) eligibility of treatment;

(b) scope of treatment offered;

(c) applicable facility fees;

(d) last known patient capacity; and

(e) facilities available for emergency treatment.

SECTION 5. Section 8 of said chapter 111E is hereby amended by striking the second paragraph and inserting in place thereof the following paragraph:-

Upon receipt by the director of an application for admission, the director shall designate an addiction specialist to conduct an examination of the person to determine whether that person is a drug dependent person who would benefit from treatment. The addiction specialist shall report his findings in writing to the director after the completion of the examination, stating the facts upon which the findings are based and the reasons therefore.

SECTION 6. Said section 8 is hereby further amended by striking the fourth paragraph.

SECTION 7. Section 10 of said chapter 111E is hereby amended by striking the first paragraph and inserting in place thereof the following paragraph:-

Section 10. Any defendant who is charged with a first or second drug offense shall be informed, upon being brought before the court on such charge, that he is entitled to request an examination to determine whether or not he is a drug dependent person who would benefit from treatment. A court may in its discretion request an examination of any person charged with a drug offense to determine whether a defendant is drug dependent and would benefit from treatment in accordance with this chapter.

SECTION 8. Said section 10 is hereby further amended by striking the third through sixth paragraphs inclusive and inserting in place thereof the following paragraphs:-

Court proceedings shall be stayed from the time a request for examination is made under this section and while that request is considered by the court. Upon such a request, the court shall appoint an addiction specialist to conduct the examination at an appropriate location within 3 days of the granting of the request. In no event shall the request for such an examination or any statement by the defendant during the course of the examination, or any finding by the addiction specialist be admissible against the defendant in any court proceedings. The appointed addiction specialist shall report his findings in writing to the court within 3 days after the completion of the examination, stating the facts upon which the findings are based and the reasons therefore.

If the defendant requests assignment to treatment and the evaluation of the addiction specialists deems the defendant would benefit from treatment the court must stay the court proceedings and assign the defendant to a drug treatment facility.

SECTION 9. Said section 10 is hereby further amended by striking the eighth and ninth paragraphs and inserting in place thereof the following paragraphs:-

In determining whether a defendant is eligible for assignment under this section, the court shall consider the report of the addiction specialist, the defendant's criminal record , the availability of adequate and appropriate treatment, the nature of the offense with which the defendant is currently charged, including but not limited to whether the offense charged is that of sale or sale to a minor, and any other evidence the court deems relevant, provided, however, that where the offense charged is that of a sale or sale to a minor, no defendant may be assigned under this section unless that defendant is determined to be currently drug dependent, not merely at risk of becoming drug dependent.

If the defendant is determined to be a drug dependent person under sections 15 or 22 of this Act, requests assignment to treatment, and if the defendant is charged with a first or second drug offense not involving the sale or manufacture of dependency related drugs, or is assigned by the court, and there are no continuances outstanding with respect to the defendant pursuant to this section, the court shall order that the defendant be assigned to a drug treatment facility without consideration of any other factors notwithstanding sections 15 and 22 of this Act.

SECTION 10. Said section 10 is hereby further amended by striking the eleventh paragraph and inserting in place thereof the following paragraph:-

If the defendant requests assignment to treatment and is determined by an addictions specialist to be a drug dependent person that would benefit from treatment, and the defendant is charged with a first or second drug offense not involving the sale or manufacture of dependency related drugs, or is assigned by the court, and there are no continuances outstanding with respect to the defendant pursuant to this section, and adequate and appropriate treatment at a facility is not available, the stay of court proceedings shall remain in effect until such time as adequate and appropriate treatment is available.

SECTION 11. Said section 10 is hereby further amended by striking the first sentence of the fifteenth paragraph and inserting in place thereof the following:-

If the addiction specialist reports that the defendant is not a drug dependent person who would benefit from treatment, the defendant shall be entitled to request a hearing to determine whether or not he is a drug dependent person who would benefit from treatment.

SECTION 12. Said section 10 is hereby further amended by striking the twenty sixth sentence and inserting in place thereof the following sentence:-

Within 10 days of the receipt by the court of an application for discharge, the administrator and an independent addictions specialist designated by the court to make an examination of the defendant shall report to the court as to whether or not the patient would benefit from further treatment at a facility.

SECTION 13. Said section 10 is hereby further amended by striking the twenty ninth sentence and inserting in place thereof the following sentence:-

Within 10 days of the receipt of the court of an application of transfer, the administrator and an independent addictions specialist shall report to the court as to whether the defendant is a proper subject for the transfer for which he has made application.

SECTION 14. Said section 10 is hereby further amended by striking the forty third sentence and inserting in place thereof the following sentence:-

The provisions of this section shall not apply to a person charged with violating sections 32 to 32G, inclusive, of chapter 94 C; provided, however, notwithstanding the provisions of this section, section of said chapter 94C or any other law to the contrary, the provisions of this section shall apply to a person charged with first or second offense of subsection (a) of section 32 of chapter 94C or a first offense of subsection (b) of said section 32, first or second offense of subsection (a) of section 32A of chapter 94C or a first offense of subsection (b) of said section 32A, first or second offense of subsection (c) of section 32A of chapter 94C or a first offense of subsection (d) of said section 32A, first or second offense of subsection (a) of section 32B of chapter 94C or a first offense of subsection (b) of said section 32B, first or second offense of subsection (a) of section 32C of chapter 94C or a first offense of subsection (b) of said a section 32C, and first or second offense of subsection (a) of section 32D of chapter 94C or a first offense of subsection (b) of said section 32D.

SECTION 15. Section 11 of said chapter 111E is hereby amended by striking the first paragraph and inserting in place thereof the following paragraph:-

Any person found guilty of a violation of law other than a drug offense, who prior to disposition of the charge, states that he is a drug dependent person, and requests an examination, shall be assessed by an addictions specialist to determine whether or not he is a drug dependent person who would benefit from treatment. The court may use the determination that the defendant is a drug dependent person to place him into treatment services under this chapter.

SECTION 16. Section 12 of said chapter 111E is hereby amended by inserting after the fifth sentence the following sentence:--

A positive drug test alone shall not be considered a breach of the terms of probation. The court shall not prohibit the use of medication-assisted treatment as a condition of probation.

SECTION 17. This act shall not apply to any convictions entered or sentences imposed prior to the effective date of this act.

SECTION 18. Section 17N of chapter 32A of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after the definition of “Clinical stabilization services” the following definition:-

“Transitional support services”, short-term, residential support services, as defined by the department of public health, usually following clinical stabilization services, that provide a safe and structured environment to support adults or adolescents through the addiction recovery process and the transition to outpatient or other step-down addiction recovery care.

SECTION 19. Said section 17N of said chapter 32A, as so appearing, is hereby further amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

The commission shall provide for medically necessary acute treatment services, medically necessary clinical stabilization services, and medically necessary transitional support services to an active or retired employee of the commonwealth who is insured under the group insurance commission coverage for up to 30 days and shall not require preauthorization prior to obtaining such acute treatment services, clinical stabilization services, or transitional support services. The facility providing such services shall provide the carrier with notification of admission and the initial treatment plan within 48 hours of admission and within a reasonable time thereafter shall provide the carrier with a projected discharge plan for the member. The carrier’s utilization review procedures may be initiated on day 14; provided however that a carrier shall not make any utilization review decisions that impose any restriction or deny any future medically necessary acute treatment, clinical stabilization, or transitional support services unless a patient has received at least 30 consecutive days of said services; and provided further, that the commission shall provide to any active or retired employee of the commonwealth who is insured under the group insurance commission coverage for, without preauthorization, substance abuse evaluations ordered pursuant to section 51½ of chapter 111. Upon receipt of notification by the admitting facility and receipt of the discharge plan, the carrier may provide outreach to the treating clinician and member to offer care management and support services.

Medical necessity shall be determined by the treating clinician in consultation with the patient and noted in the patient’s medical record.

SECTION 20. Said chapter 118E of the General Laws, as so appearing, is amended by inserting after section 10J the following section:-

Section 10K. For the purposes of this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Acute treatment services”, 24-hour medically supervised addiction treatment for adults or adolescents provided in a medically managed or medically monitored inpatient facility, as defined by the department of public health, that provides evaluation and withdrawal management and which may include biopsychosocial assessment, individual and group counseling, psychoeducational groups and discharge planning.

“Clinical stabilization services”, 24-hour clinically managed post detoxification treatment for adults or adolescents, as defined by the department of public health, usually following acute treatment services for substance abuse for individuals beginning to engage in recovery from addiction, which may include intensive education and counseling regarding the nature of addiction and its consequences, relapse prevention, outreach to families and significant others and aftercare planning.

“Transitional support services”, short-term, residential support services, as defined by the department of public health, usually following clinical stabilization services, that provide a safe and structured environment to support adults or adolescents through the addiction recovery process and the transition to outpatient or other step-down addiction recovery care.

The division and its contracted health insurers, health plans, health maintenance organizations, behavioral health management firms and third-party administrators under contract to a Medicaid managed care organization or primary care clinician plan shall cover the cost of medically necessary acute treatment services and shall not require a preauthorization prior to obtaining treatment. The division and its contracted health insurers, health plans, health maintenance organizations, behavioral health management firms and third-party administrators under contract to a Medicaid managed care organization or primary care clinician plan shall cover the cost of medically necessary clinical stabilization services, and medically necessary transitional support services for up to 30 days and shall not require preauthorization prior to obtaining acute treatment services, clinical stabilization services, or transitional support services. The facility providing such services shall provide the carrier notification of admission and the initial treatment plan within 48 hours of admission and within a reasonable time thereafter shall provide the carrier with a projected discharge plan for the member. The carrier’s utilization review procedures may be initiated on day 14; provided, however, that a carrier shall not make any utilization review decisions that impose any restriction or deny any future medically necessary acute treatment, clinical stabilization, or transitional support services unless a patient has received at least 30 consecutive days of said services; and provided further, that the division and its contracted health insurers, health plans, health maintenance organizations, behavioral health management firms and third party administrators under contract to a Medicaid managed care organization or primary care clinician plan shall cover, without preauthorization, substance abuse evaluations ordered pursuant to section 51½ of chapter 111. Upon receipt of notification by the admitting facility and receipt of the discharge plan, the carrier may provide outreach to the treating clinician and member to offer care management and support services.

Medical necessity shall be determined by the treating clinician in consultation with the patient and noted in the patient’s medical record.

SECTION 21. Section 47GG of chapter 175 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after the definition of “Clinical stabilization services” the following definition:-

“Transitional support services”, short-term, residential support services, as defined by the department of public health, usually following clinical stabilization services, that provide a safe and structured environment to support adults or adolescents through the addiction recovery process and the transition to outpatient or other step-down addiction recovery care.

SECTION 22. Said section 47GG of said chapter 175, as so appearing, is hereby further amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

Any policy, contract, agreement, plan or certificate of insurance issued, delivered or renewed within the commonwealth, which is considered creditable coverage under section 1 chapter 111M, shall provide coverage for medically necessary acute treatment services, medically necessary clinical stabilization services, and medically necessary transitional support services for up to 30 days and shall not require preauthorization prior to obtaining acute treatment services, clinical stabilization services, or transitional support services. The facility providing such services shall provide the carrier notification of admission and the initial treatment plan within 48 hours of admission and within a reasonable time thereafter shall provide the carrier with a projected discharge plan for the member. The carrier’s utilization review procedures may be initiated on day 14; provided however that a carrier shall not make any utilization review decisions that impose any restriction or deny any future medically necessary acute treatment, clinical stabilization, or transitional support services unless a patient has received at least 30 consecutive days of said services; provided further, any policy, contract, agreement, plan or certificate of insurance issued, delivered or renewed within the commonwealth, which is considered creditable coverage pursuant to section 1 of chapter 111M, shall cover, without preauthorization, a substance abuse evaluation ordered pursuant to section 51½ of chapter 111. Upon receipt of notification by the admitting facility and receipt of the discharge plan, the carrier may provide outreach to the treating clinician and member to offer care management and support services.

Medical necessity shall be determined by the treating clinician in consultation with the patient and noted in the patient’s medical record.

SECTION 23. Section 8II of chapter 176A, of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after the definition of “Clinical stabilization services” the following definition:-

“Transitional support services”, short-term, residential support services, as defined by the

department of public health, usually following clinical stabilization services, that provide a safe and structured environment to support adults or adolescents through the addiction recovery process and the transition to outpatient or other step-down addiction recovery care.

SECTION 24. Said section 8II of said chapter 176A, as so appearing, is hereby further amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

Any contract between a subscriber and the corporation under an individual or group hospital service plan which is delivered, issued or renewed within the commonwealth shall provide coverage for medically necessary acute treatment services, medically necessary clinical stabilization services, and medically necessary transitional support services for up to 30 days and shall not require preauthorization prior to obtaining acute treatment services, clinical stabilization services, or transitional support services. The facility providing such services shall provide the carrier notification of admission and the initial treatment plan within 48 hours of admission and within a reasonable time thereafter shall provide the carrier with a projected discharge plan for the member. The carrier’s utilization review procedures may be initiated on day 14; provided however that a carrier shall not make any utilization review decisions that impose any restriction or deny any future medically necessary acute treatment, clinical stabilization, or transitional support services unless a patient has received at least 30 consecutive days of said services; provided further, any contract between a subscriber and the corporation under an individual or group hospital service plan which is delivered, issued or renewed within the commonwealth, shall cover, without preauthorization, a substance abuse evaluation ordered pursuant to section 51½ of chapter 111. Upon receipt of notification by the admitting facility and receipt of the discharge plan, the carrier may provide outreach to the treating clinician and member to offer care management and support services.

Medical necessity shall be determined by the treating clinician in consultation with the patient and noted in the patient’s medical record.

SECTION 25. Section 4II of chapter 176B, of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after the definition of “Clinical stabilization services” the following definition:-

“Transitional support services”, short-term, residential support services, as defined by the department of public health, usually following clinical stabilization services, that provide a safe and structured environment to support adults or adolescents through the addiction recovery process and the transition to outpatient or other step-down addiction recovery care.

SECTION 26. Said section 4II of said chapter 176B, as so appearing, is hereby further amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

Any subscription certificate under an individual or group medical service agreement delivered, issued or renewed within the commonwealth shall provide coverage for medically necessary acute treatment services, medically necessary clinical stabilization services, and medically necessary transitional support services for up to 30 days and shall not require preauthorization prior to obtaining acute treatment services, clinical stabilization services, or transitional support services. The facility providing such services shall provide the carrier notification of admission and the initial treatment plan within 48 hours of admission and within a reasonable time thereafter shall provide the carrier with a projected discharge plan for the member. The carrier’s utilization review procedures may be initiated on day 14; provided however that a carrier shall not make any utilization review decisions that impose any restriction or deny any future medically necessary acute treatment, clinical stabilization, or transitional support services unless a patient has received at least 30 consecutive days of said services; provided further, any subscription certificate under an individual or group medical service agreement delivered, issued or renewed within the commonwealth shall provide coverage for, without preauthorization, a substance abuse evaluation ordered pursuant to section 51½ of chapter 111. Upon receipt of notification by the admitting facility and receipt of the discharge plan, the carrier may provide outreach to the treating clinician and member to offer care management and support services.

Medical necessity shall be determined by the treating clinician in consultation with the patient and noted in the patient’s medical record.

SECTION 27. Section 4AA of chapter 176G of the General Laws, as appearing in the 2014 Official Edition,, is hereby amended by inserting after the definition of “Clinical stabilization services” the following definition:-

“Transitional support services”, short-term, residential support services, as defined by the department of public health, usually following clinical stabilization services, that provide a safe and structured environment to support adults or adolescents through the addiction recovery process and the transition to outpatient or other step-down addiction recovery care.

SECTION 28. Said section 4AA of said chapter 176G, as so appearing, is hereby further amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

An individual or group health maintenance contract that is issued or renewed shall provide coverage for medically necessary acute treatment services, medically necessary clinical stabilization services, and medically necessary transitional support services for up to 30 days and shall not require preauthorization prior to obtaining acute treatment services, clinical stabilization services, or transitional support services. The facility providing such services shall provide the carrier notification of admission and the initial treatment plan within 48 hours of admission and within a reasonable time thereafter shall provide the carrier with a projected discharge plan for the member. The carrier’s utilization review procedures may be initiated on day 14; provided however that a carrier shall not make any utilization review decisions that impose any restriction or deny any future medically necessary acute treatment, clinical stabilization, or transitional support services unless a patient has received at least 30 consecutive days of said services; provided further, an individual or group health maintenance contract that is issued or renewed shall provide coverage for, without preauthorization, a substance abuse evaluation ordered pursuant to section 51½ of chapter 111. Upon receipt of notification by the admitting facility and receipt of the discharge plan, the carrier may provide outreach to the treating clinician and member to offer care management and support services.

Medical necessity shall be determined by the treating clinician in consultation with the patient and noted in the patient’s medical record.

SECTION 29. The center for health information and analysis, in consultation with the division of insurance, the department of public health, the office of Medicaid and the health policy commission, shall conduct reviews on the 14 day mandated coverage of acute treatment services, clinical stabilization services and the long-term effects of the increase in covered days from 14 days to 30 days related to the mandated benefits for acute treatment services, clinical stabilization services, and transitional support services on the following areas: (i) the continuum of care for substance use disorder treatment; (ii) access to the continuum of care for patients eligible for MassHealth and department of public health programs; (iii) access to the continuum of care for commercially insured patients; and (iv) any changes in costs to MassHealth, the department of public health and health insurance carriers.

The center shall provide an initial report not later than October 1, 2018 on the effects of the 14 day mandated coverage of acute treatment services and clinical stabilization services to the areas listed above and a final report not later than October 1, 2019 on the effects of the 30 day mandated coverage of acute treatment services, clinical stabilization services, and transitional support services to the areas listed above. The initial report and final report shall be posted on the center’s website and shall be filed with the clerks of the house of representatives and senate, the house and senate chairs of the committee on financial services, the house and senate chairs of the committee on health care financing, the house and senate chairs of the committee on public health, and the house and senate committees on ways and means not later than October 1, 2018 and October 1, 2019, respectively.

SECTION 30. Sections 18 through 30, inclusive, shall take effect October 1, 2018.

SECTION 31.  Section 34A of chapter 94C of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking subsections (a) and (b) and inserting in place there of the following subsections: --  

Section 34A. (a) A person who, in good faith, seeks or is engaged in providing medical assistance including substance abuse treatment, shelter, or social services for someone experiencing a drug-related overdose or at risk of experiencing an overdose due to active drug use shall not be charged or prosecuted for possession of a controlled substance under sections 34 or 35, nor be subject to the execution of a warrant for arrest for any non-violent drug offense, if the evidence for the charge of possession of a controlled substance or the presence of the individual subject to the arrest warrant was gained as a result of the seeking of medical assistance including substance abuse treatment, shelter, or social services.

(b) A person who experiences a drug-related overdose or is at risk of experiencing an overdose due to active drug use and is in need of medical assistance including substance abuse treatment, shelter, or social services and, in good faith, seeks such medical assistance, or is the subject of such a good faith request for medical assistance, shall not be charged or prosecuted for possession of a controlled substance under said sections 34 or 35, nor be subject to the execution of a warrant for arrest for any non-violent drug offense, if the evidence for the charge of possession of a controlled substance was gained as a result of the overdose and the need for medical assistance.

SECTION 32: Section 3 of chapter 94G, as so appearing, is hereby amended by striking subsection (i) and inserting in place thereof the following:-

(i)a collection system to provide convenient, ongoing collection services to all persons seeking to dispose of unwanted drugs; provided, however, that the collection system may accept any covered drug and any other prescription drug in a pill formulation regardless of its schedule, brand or source of manufacture; provided further, that the collection system shall include collection kiosks in every chain pharmacy location, and must include at least one of the following: (A) a mail-back program that provides prepaid and preaddressed packaging for a pharmacy to distribute when filling a prescription for a covered drug or upon request by a consumer; (B) drop-off day events at regional locations; (C) in-home disposal methods that render a product safe from misuse and that comply with applicable controlled substance regulations and environmental safety regulations; or (D) any other method recommended pursuant to United States Drug Enforcement Administration guidelines;

SECTION 33: Section 5 of chapter 94G, as so appearing, is hereby amended by striking subsections (b) and (c) and inserting in place thereof the following:-

(b) The department shall establish convenience of access standards to evaluate the drug stewardship program. Said standards shall include, but not be limited to, a requirement that manufacturers and stewardship organizations provide, collectively through their proposed stewardship programs, for a collection kiosk at every chain pharmacy location in the commonwealth, where “chain pharmacy” shall mean a retail drug organization that operates 10 or more retail drug stores within the commonwealth.

(c) Nothing in this chapter shall require an independent community pharmacy to participate in the collection, securing, transport or disposal of unwanted drugs, where “independent community pharmacy” shall mean a retail drug organization that operates 9 or fewer registered retail drugstores in the commonwealth and employs not more than 20 full-time pharmacists.

(d) No stewardship program shall require an independent community pharmacy to participate in the collection, securing, transport or disposal of unwanted drugs or to provide a space for or to maintain a collection kiosk within an independent community pharmacy, unless the pharmacy certifies, in writing, that this participation is voluntary.

SECTION 34: Sections 32 and 33 shall take effect on October 1, 2019.