Read
the Ballot Initiative...
Pursuant
to Article 48 of the Amendments to the Constitution of the
Commonwealth of Massachusetts, the undersigned registered voters
hereby submit the following initiative for a law entitled:
“AN
ACT TO PROTECT THE RIGHTS OF PATIENTS AND TO PROMOTE ACCESS TO
QUALITY
HEALTH
CARE FOR ALL RESIDENTS OF THE COMMONWEALTH”
Be
it enacted by the People, and by their authority, as follows:
SECTION
1.
Whereas,
Massachusetts residents are entitled to and desire a system of
health care that has the needs of patients as its central purpose
and
priority;
Whereas, the quality and availability of health care services
and treatments
is threatened by unreasonable restrictions on patient choice and
interference
with medical decision making;
Whereas, the affordability of heath care is jeopardized by continued
increases in health insurance costs and by reductions in health
plan
coverage, and many Massachusetts residents are uninsured or underinsured;
Therefore, it is the purpose of this act to ensure that there
will be access
to health care for all Massachusetts residents, including strong
patient
protections and a bill of patients’ rights.
SECTION
2. Chapter 111 of the General Laws is hereby amended by inserting
after section 1 the following new sections:--
Section
1C. There shall be established a patient-centered system of health
care that will ensure comprehensive, high quality care and health
coverage for all residents of the commonwealth, to be in effect
no later than July first, 2002. To establish such system, there
is hereby created a health care council that shall consist of
seventeen members to be appointed by the commissioner of public
health and
shall serve without compensation. The members shall include moral,
academic
and community leaders, health care advocates, consumers, providers
and
third-party payors and shall include at least one member from
each of the
following organizations selected from nominations by such organizations:
Ad
Hoc Committee to Defend Health Care, American Association of Retired
Persons, American Federation of Labor-Congress of Industrial Organizations,
Blue Cross
and Blue Shield of Massachusetts, Health Care for All, Massachusetts
Association of Health Maintenance Organizations, Massachusetts
Business
Roundtable, MassCARE, Massachusetts Hospital Association, Massachusetts
League of Community Health Centers, Massachusetts Medical Society,
Massachusetts Nurses Association, Massachusetts Public Interest
Research Group, and Massachusetts Senior Action Council. The council
shall allow for public participation, including but not limited
to the holding of at least four public hearings in different regions
of the commonwealth. The council shall study various health care
proposals, and make recommendations to the commissioner and the
legislature on a plan for the establishment of health care policies,
laws,
and other mechanisms to ensure that the following requirements
are met:
(a)
access shall be provided to health care services for all Massachusetts
residents and barriers eliminated to such services, medications,
and supplies
necessary for the prevention, diagnosis, treatment, rehabilitation,
and
palliation of physical and mental illness;
(b)
patients shall be guaranteed the right to freely choose their
health care
providers, to have a second medical opinion and to appeal denials
of care;
and the clinical freedom of physicians, nurses and other health
professionals
to act solely in the best interests of their patients shall be
assured;
(c)
affordable health care coverage shall be ensured to all Massachusetts
residents, with health care expenditures that rise no faster than
those of the nation as a whole;
(d)
the high quality of health care in Massachusetts shall be preserved
and promoted; and the well-being of medical research, training,
and innovation shall be protected and fostered;
(e)
no less than ninety percent of all payments made for health care
coverage
shall be used for patient care, public health, or the furtherance
of medical
skill and knowledge, and no more than ten percent of such payments
shall be
used for administrative costs or any other purpose; and the paperwork
and
administrative tasks of patients, hospitals and health care professionals
shall be simplified; and
(f)
no financial incentives shall be permitted that limit patient
access to
health care services and medications that are appropriate or necessary,
and
incentives, direct or indirect, that promote the provision of
inappropriate
care which does not benefit patients shall be minimized.
The
council shall review proposed and enacted health care legislation
in the
Commonwealth and make recommendations to the commissioner as to
whether such legislation meets the requirements of this section.
Section
1D. Notwithstanding any general or special law to the contrary,
until
such time as the health care council established pursuant to section
one C
determines that the requirements set out in said section one C
have been met,
there shall be a moratorium on the conversion of non-profit hospitals,
non-profit health maintenance organizations, and non-profit health
insurance
firms to entities owned and operated for profit. Notwithstanding
any general
or special law to the contrary, until such time as determination
is made, the
commissioner and the commissioner of insurance, as appropriate,
shall not
grant, renew, convert or otherwise provide a license to any such
entity that
attempts to undergo such a conversion.
SECTION
3. The General Laws are hereby amended by inserting after chapter
176N the following chapter:
Chapter
176O: Patients’ Bill of Rights
Section
1. The purpose of this chapter is to protect the rights of patients
and to strengthen the relationship between patients and their
physicians, nurses,
and other health care professionals. To achieve these goals, this
chapter,
which applies to all health insurance carriers, including health
insurance
plans, blue cross and blue shield plans, health maintenance organizations,
and preferred provider plans, establishes, as more specifically
detailed in
the following sections, the right of patients to choose their
health care
professionals, health care facilities, and other health care providers;
the
right of health care professionals to make all medical decisions
in
consultation with their patients; the right to continuity of care
during the
course of treatment; the right to a referral to a specialist if
such a
referral is a medical necessity; a limitation on and the requirement
of open
disclosure of financial incentives in contracts between carriers
and health
care professionals; protection of the right of health care professionals
to
discuss provisions of health benefit plans with insured patients;
prohibition
of termination of health care professionals by carriers without
cause; the
right to receive emergency services; the right to clear utilization
review
programs that include the right to a second opinion and the right
to appeal
an adverse determination to the commissioner of public health,
and a
requirement that at least ninety percent of the premiums of carriers
be spent
on patient care.
Section
2. Notwithstanding any provisions to the contrary of sections
108 to
111, inclusive, of chapter 175 of the General Laws, of chapter
176A of the
General Laws, of chapter 176B of the General Laws, of chapter
176G of the
General Laws, and of chapter 176I of the General Laws, or of any
other
special or general law, the provisions of this chapter shall apply
to all
insurers licensed or otherwise authorized to transact accident
or health
insurance under said chapter175; a non-profit hospital service
corporation
organized under said chapter 176A; a non-profit medical service
corporation
organized under said chapter 176B; all health maintenance organizations
organized under said chapter 176G; and all organizations entering
into a
preferred provider arrangement under said chapter 176I; but not
including an
employer purchasing coverage or acting on behalf of its employees
or the
employees of one or more subsidiaries or affiliated corporations
of the
employer.
The
provisions of this chapter shall be administered by the division
of
insurance.
Section
3. As used in this chapter, the following words shall have the
following meanings unless the context clearly requires otherwise:
“Benefits”,
health care services and medications to which an insured patient
is entitled under the terms of the health benefits plan.
“Carrier”,
an insurer licensed or otherwise authorized to transact accident
or health insurance under chapter 175; a non-profit hospital service
corporation organized under chapter 176A; a non-profit medical
service
corporation organized under chapter 176B; a health maintenance
organization
organized under chapter 176G; and an organization entering into
a preferred
provider arrangement under chapter 176I; but not including an
employer
purchasing coverage or acting on behalf of its employees or the
employees of
one or more subsidiaries or affiliated corporations of the employer.
“Commissioner”,
the commissioner of the division of insurance.
“Emergency services” and “emergency care”, services provided in
or by a
hospital emergency facility or a free standing emergency care
facility after the
development of a medical condition, whether physical or mental,
manifesting
itself by symptoms of sufficient severity that the absence of
prompt medical
attention could reasonably be expected by a prudent layperson
who possesses
an average knowledge of health and medicine, to result in placing
the
member’s or another person’s health in serious jeopardy, serious
impairment
to body function, or serious dysfunction of any body organ or
part.
“Facility”,
an institution providing health care services or a health care
setting, including, but not limited to, hospitals and other licensed
inpatient centers, ambulatory surgical or treatment centers, skilled
nursing
centers, residential treatment centers, diagnostic, laboratory
and imaging
centers, and rehabilitation and other therapeutic health settings.
“Health
benefit plan”, a policy, contract, certificate or agreement entered
into, offered or issued by a carrier to provide, deliver, arrange
for, pay
for, or reimburse any of the costs of health care services.
“Health
care professional”, a physician or other health care practitioner
licensed, accredited or professionally certified to perform specified
health services
consistent with law.
“Health
care provider” or “provider”, a health care professional or a
facility.
“Health
care services”, services for the diagnosis, prevention, treatment,
cure or relief of a health condition, illness, injury or disease.
“Insured
Patient”, an enrollee, covered person, insured, member, policyholder
or subscriber of a carrier, including an individual whose eligibility
as an
insured of a carrier is in dispute or under review, or any other
individual
whose care may be subject to review by a utilization review program
or entity
as described under other provisions of this chapter.
“Massachusetts
care share”, the percentage obtained by dividing
Massachusetts-associated health care expenditures of a carrier
by its
Massachusetts-associated revenue for a calendar year.
“Medical
necessity”, medical care, which is consistent with generally
accepted principles of professional medical practice.
“Network”,
a grouping of health care providers who contract with a carrier
to
provide services to insured patients covered by any or all of
the carrier’s
plans, policies, contracts or other arrangements.
“Person”,
an individual, a corporation, a partnership, an association, a
joint venture, a joint stock company, a trust, an unincorporated
organization, any similar entity or combination of the foregoing.
“Second
opinion”, an opportunity or requirement to obtain a clinical
evaluation by a provider other than the one originally making
a
recommendation for a proposed health service to assess the clinical
necessity
and appropriateness of the initial proposed health service.
“Specialist”,
a health care provider that has adequate expertise through
appropriate training, experience, and certification to provide
high quality
medical care for the treatment of a specific disease or condition.
“Utilization
review”, a set of formal techniques designed to monitor the use
of, or evaluate the clinical necessity, appropriateness, efficacy,
or
efficiency of, health care services, procedures, or settings.
Such techniques
may include, but are not limited to, ambulatory review, prospective
review,
second opinion, certification, concurrent review, case management,
discharge
planning or retrospective review.
“Utilization
review organization”, an entity that conducts utilization
review, other than a carrier performing utilization review for
its own health
benefit plans.
Section
4. (a) All insured patients shall have the right to choose their
health care professionals, health care facilities; and other health
care providers;
provided, however, that in accordance with the terms of the health
benefit
plan, such choice may be subject to the approval of a primary
health care
provider that has no financial incentives to deny care and that
is freely
chosen by the insured patient.
(b)
An insured patient shall have the right to select an obstetrician
or a
gynecologist as her primary care physician and, whether or not
an insured
patient has so selected an obstetrician or a gynecologist as her
primary care
physician, such insured patient may visit an obstetrician or a
gynecologist
without the approval of her primary care physician.
(c)
Insured patients may be required to pay a reasonable additional
fee if
they choose health care professionals pursuant to this section
that are not
within their carrier’s network.
Section
5. An attending health care professional, in consultation with
the
insured patient, shall make all decisions, consistent with generally
accepted
principles of professional medical practice, regarding medical
treatment,
including provision of durable medical equipment, medications,
and lengths of
hospital stay, to be provided to such insured patient under his
supervision
or control. Nothing in this section shall be construed as altering,
affecting
or modifying either the obligations of any carrier or the terms
and
conditions of any agreement between either the attending health
care
professional or the insured patient and any carrier.
Section
6. If an insured patient is undergoing a course of treatment from
a
health care provider at the time when a contract between a carrier
and such
health care provider is terminated for reasons other than fraud
or failure to
meet applicable quality standards, the carrier shall continue
to provide
coverage to such insured patient of health care services from
such health
care provider for a transitional period of 90 days following such
termination; provided, however, that if the insured patient has
been admitted
to a facility, or has entered the second trimester of pregnancy,
or has a
terminal illness, such transitional period shall continue until
the insured
patient no longer has the medical necessity of remaining an inpatient,
is no
longer pregnant, or no longer needs treatment in conjunction with
such
terminal illness, respectively; provided, further, that nothing
in this
section shall be construed to require the coverage of health care
services
which would not have been covered if the contract between the
carrier and the
health care provider had not been terminated; and provided, further,
that the
health care provider shall agree to continue to accept reimbursement
at the
rates in effect prior to the start of the transitional period
and shall
adhere to the quality standards and other policies and procedures
of the
health benefit plan.
Section
7. All insured patients shall have the right to a referral to
a
specialist for the treatment of a disease or condition that as
a medical
necessity needs to be treated by a specialist; provided, however,
that in
accordance with the terms of the health benefit plan, such specialist
may be
required to develop a treatment plan subject to the approval of
a primary
health care provider and the utilization review procedures of
the carrier;
provided, further, that such specialist shall provide the primary
care
provider with all necessary medical information, including but
not limited to
regular updates on the specialty care provided; and provided further
patients
with chronic conditions may get a standing referral that needs
to be renewed
every six months or annually as may be agreed to by the primary
care provider.
Section
8. (a) No contract between a carrier and a licensed health care
provider or health care provider group shall contain any incentive
plan that
includes a specific payment made to a health care provider as
an inducement
to reduce, delay or limit specific, medically necessary services
covered by
the contract. Health care professionals shall not profit from
provision of
covered services that are not medically necessary and appropriate.
Carriers
and health care providers shall not profit from denial or withholding
of
covered services that are medically necessary and appropriate.
(b)
All financial incentive arrangements among health care providers
and
carriers other than basic salaries and fringe benefits shall be
fully
disclosed and available for inspection by the insured patients.
Section
9. No carrier shall refuse to contract with or compensate for
covered
services with an otherwise eligible health care professional or
nonparticipating health care professional because such health
care
professional has in good faith communicated with or advocated
on behalf of
one or more of his current, former or prospective insured patients
regarding
the provisions, terms or requirements of the health benefit plans
of the
carrier, or the provider payment methodology of the carrier, as
they relate
to the needs of the insured patients of the health care professional.
Nothing
in this section shall be construed to preclude a carrier from
requiring a
health care professional to withhold confidential specific compensation
amounts.
Section
10. No carrier shall make a contract with a health care provider
that
includes a provision permitting termination of the health care
provider
without cause. If a carrier terminates a contract with a health
care
provider, it shall provide a written statement to the health care
provider of
the reason for such termination.
Section
11. (a) A health benefit plan shall cover emergency services provided
to insured patients; provided, however, that for treatment or
diagnostic
workup beyond stabilization for transfer, stabilization for discharge
or
admission, the carrier may require a hospital emergency department
to call
the physician on-call designated by the carrier for authorization,
and
provided, further, that such authorization shall be deemed granted
if the
carrier has not responded to said call within thirty minutes.
Notwithstanding
the foregoing provisions, in the event the emergency physician
and the
primary care physician or the physician designated by the carrier
do not
agree on what constitutes appropriate medical treatment, the opinion
of the
emergency physician shall prevail and such treatment shall be
considered
emergency care as defined herein; provided, however, that such
treatment is
consistent with generally accepted principles of professional
medical
practice. Consistent with the foregoing, carriers may enter into
contracts
with network hospitals or emergency physician groups or both for
the
provision of emergency services.
(b)
Every carrier shall clearly state in its brochures, contracts,
policy
manuals and all printed materials distributed to members that
such members
have the option of calling the local pre-hospital emergency medical
service
system by dialing the emergency telephone access number 911, or
its local
equivalent, whenever an enrollee is confronted with a life or
limb
threatening emergency. No member shall in any way be discouraged
from using
the local pre-hospital emergency medical service system, the 911
telephone
number, or the local equivalent, or be denied coverage for medical
and
transportation expenses incurred as a result of such use in a
life or limb
threatening emergency.
(c)
Every carrier shall provide or arrange for the payment of cash
benefits
to an insured patient when the patient obtains emergency care
from a provider
not normally affiliated with the carrier; provided that amounts
charged by
the provider are reasonable; and provided further that the insured
patient
paid the provider himself.
Section
12. Utilization review conducted by a carrier or a utilization
review
organization shall meet, at a minimum, the following standards:
(a)
any such entity shall conduct its utilization review program pursuant
to
a written plan;
(b)
any such program shall be under the supervision of a physician
and shall be staffed by appropriately trained and qualified licensed
health care professionals;
(c)
any such entity shall have a documented process to review and
evaluate the
effectiveness of its utilization review program;
(d)
any such entity shall adopt utilization review criteria and conduct
all
utilization review activities pursuant to those criteria. Said
criteria shall
be, to the maximum extent feasible, scientifically derived and
evidence-based
and shall be developed with the input of participating physicians;
(e)
any such program shall allow an insured patient, if he disagrees
with the
conclusions of the utilization review, to have a second medical
opinion with
a physician selected by the insured patient, and to have the decision
of the
program reconsidered in light of such second medical opinion;
(f)
any such entity shall have a documented process to ensure that
utilization review criteria are applied consistently;
(g)
any such entity shall make utilization review determinations on
a timely
basis; and
(h)
any such program shall allow an insured patient, if he disagrees
with the
final conclusions of the utilization review, to appeal the final
conclusion to the
commissioner of public health; and if said commissioner finds
that the
decision was contrary to the reasonable medical needs of the patient
or was
arbitrary or capricious, he shall order the carrier to provide
the medical
treatment in dispute to the insured patient.
Section
13. (a) The Massachusetts care share for a carrier in the
commonwealth shall be no less than 90 percent, and non-health
expenditures
associated with insured patients residing in Massachusetts shall
not exceed
ten percent of Massachusetts-associated revenue for each calendar
year. The
commissioner shall promulgate regulations that make fair and equitable
determinations about what constitutes health and non-health expenditures.
(b)
Each carrier operating in the commonwealth shall report annually
to the
commissioner its total revenues, Massachusetts-associated revenue,
total
premiums, Massachusetts premiums, total health expenditures,
Massachusetts-associated health expenditures, total non-health
expenditures,
care share, and Massachusetts care share. The commissioner shall
issue
regulations specifying the methods for calculating the information
to be
reported in accordance with this section. The commissioner shall
publish
annually the care share and the Massachusetts care share of each
carrier
doing business in the commonwealth. All written materials used
for
advertising and marketing health benefit plans to prospective
insured
patients or groups shall include a statement of the carrier’s
care share and
its Massachusetts care share.
(c)
Any carrier that fails to comply with the provisions of this section
shall refund to its insured patients the amount by which such
carrier’s
Massachusetts non-health expenditures exceeded ten percent. The
refund
payable for any calendar year shall be paid on or before June
thirtieth of
the next calendar year. A carrier that reports a Massachusetts
care share
below 90 percent may, upon written notice to the commissioner,
pay the refund
owed by reducing the total premiums payable by its insured patients
for the
calendar year in which the shortfall is reported by an amount
equal to the
refundable amount .
(d)
Each calendar year, the commissioner shall audit the books and
records of
a random sample of no less than ten percent of carriers that have
more than
twenty-five thousand persons insured under blanket or group insurance
policies. The commissioner may appoint an independent auditor
to conduct the
audit, subject to the control and supervision of the commissioner,
and shall
assess each insurer a fee to pay the reasonable costs of such
audit.
SECTION
4. There is hereby created a special legislative committee to
study
and recommend the establishment of a patient-centered system of
health care that
ensures comprehensive, high quality care and health coverage for
all
residents, to be in effect no later than July first, 2002, consisting
of five
members of the house of representatives to be appointed by the
speaker of the
house of representatives, three members of the senate to be appointed
by the
president of the senate, and the members of the health care council
established in section one C of chapter 111 of the General Laws.
The members
shall receive no compensation for the performance of their duties
on the
special committee. The special committee shall hold public hearings,
study
various health care proposals, and make recommendations for the
establishment
of a system of health care conforming to the requirements of said
section one
C of said chapter 111. The members of the special committee shall
be
appointed no later than January tenth, 2001 and shall file their
report,
together with recommended legislation, with the clerks of the
senate and the
house of representatives no later than September 30, 2001.
SECTION
5. No provision of this act shall be interpreted as applying to,
affecting, amending, or otherwise impairing the provisions of
any contract in
effect prior to the effective date of this act or as applying
to, affecting,
amending, or otherwise impairing an automatic renewal provision,
option
clause, or other provision of such an existing contract that goes
into effect
on or after the effective date of this act.
SECTION
6. The provisions of this act are severable, and if any provision
of
this act is found to be unconstitutional, contrary to law, or
otherwise
invalid by a court of competent jurisdiction, then the other provisions
of
this act shall continue to be in effect.
SECTION
7. Unless provided otherwise herein, the provisions of this act
shall
take effect as of January first, 2001.
Send
Your Thanks to Senator Kennedy for His Support of Question 5
Please
take a moment to call or email Senator Kennedy your "thanks" for
his support of Question 5 and pass-on the word, encouraging others
to do the same. The Senator shows tremendous courage in
coming-out so early and so strongly in support of this important
issue. We, in turn, should show him our support.
Call
617-565-3170 - Ask for Duane Brown. If he is unavailable,
leave your name and message of thanks.
Or
EMAIL the Senator's office at:
http://www.senate.gov/~kennedy/main.cfm?whichpage=email&whichmenu=1
