“Patients First” Law Brings New Fines, and Potential Discipline for Health Care Industry

On January 1, 2022 certain provisions of the Massachusetts “Patients First” law[1] (the “Patients First Act”) went into effect that require advance notice to patients of a provider’s network status and estimated costs of care. These new requirements have significant implications for patient billing by doctors, hospitals, and other health care providers, defined in the law[2]. On January 3, 2022, the Massachusetts Department of Public Health (DPH) issued further clarifying information about these new requirements, as summarized below.

So-called “Surprise Billing” has been a national issue for years, and refers to the situation where a patient receives an unexpectedly high bill from an out-of-network health care provider or facility because the patient received medical care that was not covered or paid by the patient’s health plan, usually because the health care provider did not participate in the health plan participating provider network. For example, a patient might schedule an operation at a hospital and, though the hospital and surgeon’s fees are covered and paid by the patient’s health plan because such providers are participating providers in the health plan’s network, the anesthesiologists’ fees are not fully paid by the health plan because the anesthesiologist is not a participating provider—resulting in the separate bill directly from the anesthesiologist. The Patients First Act aims to remove this element of surprise.

The Patients First Act addresses non-emergency medical conditions and requires applicable health care providers to provide verbal or written notice to patients on whether the provider participates in the patient’s health plan network and to disclose the charges the patient should expect to receive. The Patients First Act does not apply to emergency services, but if a patient specifically inquires whether a provider is out-of-network, the information must be properly disclosed by the provider.

On January 3, 2022, DPH issued important notices to patients and to providers with further insight about the new requirements. Both can be found here.

The Patients First Act has serious implications for healthcare providers and facilities covered by the law. First, it creates a number of new and complicated requirements that will impact day-to-day operations. Second, it allows DPH to penalize providers up to $2,500 per violation. Further, the January 3, 2022 Notice to Patients linked above, encourages patients to report non-compliant providers to the appropriate licensing board, creating a real risk of disciplinary proceedings for failing to comply with many requirements of this new law.

A similar—but not identical—federal law also went into effect on January 1, 2022. Providers will need to understand and implement the requirements under each of these laws immediately.

We anticipate regulators may recognize that it may take some time for providers to implement and adapt to these new requirements. With that in mind, DPH stated in the Notices mentioned above that penalties will not be imposed until July 1, 2022. Regardless of the deferment of enforcement until July, that window will close soon and providers, and facilities, will face regulatory action for failing to comply. Providers are encouraged to implement applicable procedures to meet the new notice and billing requirements as soon as possible in order to minimize the prospect of regulatory scrutiny.

To learn more, please contact a member of Hinckley Allen’s Health Care group.


A link to these new requirements can be found here.

[1] The “Promoting a Resilient Health Care System that Puts Patients First” Act was signed into law on January 1, 2021 by Governor Baker and the requirements summarized above took effect on January 1, 2022. Penalties will take effect as of July 1, 2022.

[2] Providers subject to the new requirements include: any doctor of medicine, osteopathy, or dental science, any registered nurse, registered pharmacist, social worker, doctor of chiropractic, or psychologist, an intern, or a resident, fellow, or medical officer, or a hospital, clinic or nursing home and its agents and employees, or a public hospital and its agents and employees.

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