SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2880

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Third General Court
(2023-2024)

_______________

by striking out section 98 and inserting in place thereof the following section:-

SECTION 98. Said chapter 112 is hereby further amended by inserting after section 4 the following 2 sections:-

Section 4A. (a) For the purposes of this section and section 4B, the following words shall have the following meanings unless the context clearly requires otherwise:

“Clinician without independent practice authority”, a registered practicing clinician who is not a physician, psychologist, licensed independent clinical social worker or nurse practitioner, psychiatric nurse mental health clinical specialist or nurse anesthetist who has independent practice authority pursuant to sections 80E, 80H and 80J.

“Health care practice”, a business, regardless of form, through which a registered practicing clinician offers health services; provided, however, that “health care practice” shall not include any entity that holds a license issued by the department of public health pursuant to sections 51, 51M, 51N or 52 of chapter 111.

“Licensed independent clinical social worker,” a licensed independent clinical social worker who is licensed to practice in the commonwealth pursuant to sections 130 to 137, inclusive.             

“Management services organization”, a business that provides management or administrative services to a provider or provider organization for compensation.

“Non-profit hospital health system”, a nonprofit entity that directly or indirectly owns or controls at least 1 nonprofit hospital licensed by the department of public health pursuant to chapter 111.

“Nurse anesthetist”, an advanced practice registered nurse who registered to practice advanced nursing practice in the commonwealth pursuant to sections 74, 80B and 80H.

“Nurse-midwife”, a nurse-midwife who is registered to practice nurse-midwifery in the commonwealth pursuant to sections 74, 80B, 80C and 80G.

“Nurse practitioner”, an advanced practice registered nurse who is registered to practice advanced nursing practice in the commonwealth pursuant to sections 74, 80B and 80E.

“Physician”, a doctor of medicine or doctor of osteopathy who is registered to practice medicine in the commonwealth pursuant to section 2.

“Physician assistant,” a physician assistant who is registered to practice in the commonwealth pursuant to sections 9F and 9I.

“Psychiatric nurse mental health clinical specialist”, an advanced practice registered nurse who is registered to practice advanced nursing practice in the commonwealth pursuant to sections 74, 80B, 80E and 80J.

“Psychologist”, a psychologist licensed to practice psychology in the commonwealth pursuant to sections 118 to 129B, inclusive.

“Registered practicing clinician,” a physician, physician assistant, nurse practitioner, psychiatric nurse mental health clinical specialist, nurse anesthetist, nurse-midwife, psychologist or licensed independent clinical social worker.

(b) No person or entity shall own a health care practice or employ registered practicing clinicians except as specified in this section.

(c)(1) A majority share of a health care practice shall not be owned, alone or in combination, by any person or entity other than: (i) a nonprofit hospital health system; (ii) a hospital that holds a license issued by the department of public health under chapter 111; or (iii) a registered practicing clinician who: (A) holds a license and, when applicable, a certificate of registration, that is issued by the applicable board of registration, neither of which have been suspended or revoked; and (B) is substantially engaged in delivering health care to patients in the commonwealth through the practice or managing of the health care practice. A violation of this section shall constitute the unauthorized practice of medicine in violation of section 6. Nothing in this section shall permit a nurse-midwife to practice beyond the scope established pursuant to section 80G.

(2) It shall constitute the unauthorized practice of medicine in violation of section 6 for any person or entity other than a health care facility or entity that holds a license issued by the department of public health pursuant to sections 51, 51M, 51N or 52 of chapter 111 or a health care practice to employ registered practicing clinicians.

(d) Health care facilities or entities that hold a license issued by the department of public health pursuant to sections 51, 51M, 51N or 52 of chapter 111, health care practices and nonprofit hospital health systems shall not directly or indirectly interfere with, control or otherwise direct the professional judgment or clinical decisions of: (i) registered practicing clinicians who receive compensation from the health care facility or entity or health care practice as employees or independent contractors; (ii) a health care practice fully or partially owned or controlled by a hospital that holds a license issued by the department of public health pursuant to chapter 111 or nonprofit hospital health system; or (iii) said health care practice’s employees. Conduct prohibited under this subsection shall include, but not be limited to, controlling, either directly or indirectly, through discipline, punishment, threats, adverse employment actions, coercion, retaliation or excessive pressure: (i) the amount of time spent with patients, including the time permitted to triage patients in the emergency department or evaluate admitted patients; (ii) the time period within which a patient must be discharged; (iii) decisions involving the patient’s clinical status, including, but not limited to, whether the patient should be kept in observation status, whether the patient should receive palliative care and where the patient should be placed upon discharge; (iv) the diagnosis, diagnostic terminology or codes that are entered into the medical record; or (v) any other conduct the department of public health determines by regulation would interfere with, control or otherwise direct the professional judgement or clinical decisions of clinicians with independent practice authority; provided, however, that the department may establish exceptions to subsections (i) to (v), inclusive, for the appropriate clinical supervision of clinicians without independent practice authority. Such health care facilities or entities, nonprofit hospital health systems or health care practices fully or partially owned by a hospital or nonprofit hospital health system shall not limit the range of clinical orders available to registered practicing clinicians either directly or by configuring the medical record to prohibit or significantly limit the clinical order options available. Nondisclosure or non-disparagement agreements regarding subsections (i) to (v), inclusive, to which health care practices or registered practicing clinicians are a party shall be considered void and unenforceable. Any policy or contract that has the effect of violating this subsection shall be void and unenforceable and shall be considered the unauthorized practice of medicine in violation of section 6. If a court of competent jurisdiction finds a policy, contract or contract provision void and unenforceable pursuant to this subsection, the court shall award the plaintiff reasonable attorney’s fees and costs. Nothing in this section shall limit the ability of any person to bring any action relating to defamation, disclosure of confidential or proprietary information or trade secrets or similar torts.

(e) All health care practices shall provide written certification that the health care practice meets the requirements in this section to the department of public health at the time of formation and on a biennial basis thereafter. Health care practices shall, at the time that such registered practicing clinicians are hired or affiliated with the practice and within 30 days of providing certification to the department of public health pursuant to this section, provide a copy of the most recent certification to all registered practicing clinicians who: (i) engage in providing health services at the health care practice; and (ii) do not hold any ownership interest in the health care practice.

(f) Health care practices shall file with the department of public health a registration application containing such information as the department may reasonably require, including, but not limited to: (i) the identity of the applicant and of the registered practicing clinicians that constitute the practice; (ii) any management services organization under contract with the health care practice; (iii) a certified copy of the health care practice’s certificate of organization, if any, as filed with the secretary of the commonwealth, or any applicable partnership agreement; (iv) the address of the health care practice; (v) the services provided by the health care practice; and (vi) any information the department, in consultation with the health policy commission and the center for health information and analysis, deems relevant for the state health plan and focused assessments pursuant to section 22 of chapter 6D and the health care resources inventory pursuant to section 9 of chapter 12C. The application shall be accompanied by a fee in an amount to be determined pursuant to section 3B of chapter 7. All health care practices registered in the commonwealth shall renew their certificates of registration with the department every 2 years. The department shall share information relevant to the state health plan and focused assessments pursuant to said section 22 of said chapter 6D with the commission and information relevant to the health care resources inventory pursuant to said section 9 of said section 12C with the center.

(g) All health care practices with more than 1 registered practicing clinician that constitutes the practice shall designate a registered practicing clinician at the practice to serve as health care director; provided, however, that the designated clinician shall hold a license issued by the applicable board of registration and, when applicable, a certificate of registration issued by said board, neither of which have been suspended or revoked. The director shall be responsible for implementing policies and procedures to ensure compliance with local ordinances and state and federal laws and regulations governing the practice of medicine or the practice of nursing, including regulations promulgated and policies established by the applicable board. The applicable board may impose discipline against the licenses of the director and registered practicing clinicians who own and control the health care practice for failure of the health care practice to comply with local ordinances and state and federal laws and regulations governing the registered practicing clinician’s practice, including regulations promulgated and policies established by the applicable board.

(h) The department of public health may promulgate regulations to establish minimum requirements for the conduct of a health care practice, including, but not limited to: (i) compliance with this section; (ii) maintenance and access to medical records; and (iii) in the event of a planned closure of the health care practice or an unplanned event that prevents the health care practice from continuing operations, the development of a continuity plan to: (A) ensure access to medical records, (B) provide notice to patients, and (C) assist patients with transitioning to a new provider.

Section 4B. (a) This section shall apply only to health care practices that are not owned or controlled by hospitals licensed by the department of public health under chapter 111 or nonprofit hospital health systems. It shall be a violation of this section for a management services organization or other entity that is not a health care practice to exercise control over clinical decisions of a health care practice. A management services organization, or any other organization that is not a health care practice, that does the following shall be considered to have control over the clinical decisions of the health care practice: (i) managing, supervising, evaluating or recommending promotion or discipline of any owner of or registered practicing clinician associated with the health care practice; (ii) negotiating with third-party payers on behalf of a health care practice without first obtaining informed consent from the health care practice’s owners; (iii) advertising or otherwise presenting as a health care practice or provider of health care services; or (iv) performing any other functions that the department of public health determines, by regulation, confers to a management services organization or any other entity that is not a health care practice the ability to control the clinical decisions of the health care practice or its registered practicing clinicians.

(b) A health care practice shall maintain ultimate decision-making authority over: (i) personnel decisions involving registered practicing clinicians, including, but not limited to, employment status, compensation, hours or working conditions; (ii) coding or billing decisions; (iii) the selection and use of property, including, but not limited to, real property, medical equipment or medical supplies; (iv) the number of patients seen in a given period of time or the amount of time spent with each patient; (v) the appropriate diagnostic test for medical conditions; (vi) the use of patient medical records; (vii) referral decisions; or (viii) any other function or decision that the department of public health determines, by regulation, confers to a management services organization or any other entity that is not a health care practice the ability to control the clinical decisions of a health care practice or its registered practicing clinicians.

(c) It shall be a violation of this section for a management services organization or any other entity that is not a health care practice to include in an agreement with any health care practice provisions that would: (i) restrict the ability of the health care practice or practice owner to exercise complete, unfettered control and discretion over the finances or capital of the health care practice, including, but not limited to, restricting the ability to create, buy or sell stock, issue dividends or sell the health care practice; (ii) restrict the ability of a person who owns stock in the health care practice to transfer, alienate or otherwise exercise unfettered discretion and control over their stock; (iii) restrict, in any way, the ability of the health care practice or clinicians with independent practice authority associated with the health care practice to provide health care services in any place, for any entity or in any form otherwise permitted by law; (iv) restrict the ability of the health care practice to contract with another management services organization for management or administrative services upon expiration of the current contract; (v) limit the ability of the health care practice or the practice’s owners, employees or agents to publicly discuss the business relationship between the health care practice and the management services organization; provided, however, that this provision shall not limit the ability of any person to bring any action relating to defamation, disclosure of confidential or proprietary information or trade secrets or similar torts; (vi) limit access to, take control from or otherwise obscure from any registered practicing clinicians providing services in connection with the health care practice, the price, rate or amount of the charges for their services; (vii) establish, supervise, manage or otherwise control the health care practice’s officers or directors; or (viii) create any other situation the department of public health determines, by regulation, could create the possibility of allowing the management services organization to control the clinical decisions of the health care practice or registered practicing clinicians.

(d) No management services organization shall have any ownership interest in or direct or indirect control over health care practices for which the management services organization provides services. No health care practice shall have any ownership interest in or direct or indirect control over a management services organization unless the management services organization is fully owned, alone or in combination, by: (i) health care practices substantially engaged in delivering health care to patients in the commonwealth; (ii) registered practicing clinicians who both: (A) hold a license from the applicable board of registration and, when applicable, a certificate of registration that is issued by said board, neither of which have been suspended or revoked, and (B) are substantially engaged in delivering health care to patients in the commonwealth; or (iii) hospitals that hold a license issued by the department of public health pursuant to chapter 111 or non-profit hospital health systems. For the purposes of this subsection, a de minimis interest in a publicly traded company held in a mutual fund, index fund or similar financial instrument shall not be considered an ownership interest.

(e) No person may serve as a director, officer, employee or contractor for both a management services organization and a health care practice for which the management services organization provides services; provided, however, that this subsection shall not apply when a management services organization is fully owned, alone or in combination, by: (i) health care practices substantially engaged in delivering health care to patients in the commonwealth; (ii) registered practicing clinicians who both: (A) hold a license from the applicable board of registration and, when applicable, a certificate of registration that is issued by said board, neither of which have been suspended or revoked; and (B) are substantially engaged in delivering health care to patients in the commonwealth; or (iii) hospitals that hold a license issued by the department of public health pursuant to chapter 111 or nonprofit hospital health systems.

(f) A violation of this section shall constitute the unauthorized practice of medicine in violation of section 6 or the unauthorized practice of nursing in violation of section 80E, 80H or 80J. Any provision of a contract or agreement that has the effect of violating this section shall be void and unenforceable. If a court of competent jurisdiction finds a policy, contract or contract provision void and unenforceable pursuant to this section, the court shall award the plaintiff reasonable attorney’s fees and costs.

(g) The department of public health, in consultation with the health policy commission, shall promulgate regulations to effectuate the purposes of this section.