BOSTON (SHNS) – August in even-numbered years features plenty of self-congratulatory messaging from lawmakers about the bills they passed after months of deliberation – and perhaps some procrastination and brinksmanship – as well as a fair share of frustration about what they failed to complete.
But when it comes to health care, the disappointment seems to be a bit more muted.
Several prominent voices outside the halls of the State House were hesitant to take full swings at the Legislature after measures to reform step therapy, prescription drug pricing and hospital expansion oversight all stalled out without reaching the governor’s desk before the end of formal sessions. The Legislature’s plans to expand insurance subsidies to more working people came crashing down with a veto Wednesday, and the collapse of a $4 billion economic development bill dashed hopes for major assistance to the health care sector.
The issues at play are especially dense, they said, with tendrils weaving through major pillars of the state’s economy that they say could get tilted with any misstep.
Lora Pellegrini, president and CEO of the Massachusetts Association of Health Plans, pointed to a list of other health care legislation approved in the past three years including a new abortion access bill as evidence, she alleged, that “all they do is health care.”
“While they didn’t get to these bills, they’ve actually done quite a bit,” Pellegrini said.
Calling the topic “very complicated,” Health Care for All Executive Director Amy Rosenthal said it “takes time” for lawmakers to find a viable approach on health care reforms.
“Are we disappointed that more doesn’t happen? Of course, we’re a consumer advocacy organization, we want to see movement as fast as we can so that we can make sure that people can afford their health care,” Rosenthal said. “But I think this is an iterative process right now, and I think there’s a lot of things that we’ve talked about in this legislative session that we’re really hopeful that they’re going to cross the finish line next session.”
Top Democrats also deflected criticism over the group of legislation they did not complete, citing complexity surrounding the topics and pointing to other health care accomplishments.
The Legislature’s stumbles on health care in recent years have been prominent.
In 2018, a conference committeefailed to achieve consensus on a bill aimed at stabilizing community hospitals; two years later, the House and Senate heads of the Health Care Financing engaged in a public feud while legislation hung in limbo; and as attention during this year’s end-of-session scramble was focused elsewhere, the step therapy, hospital review and prescription drug bills faltered.
Along the way, there have been some noteworthy accomplishments, too. Last session, months after committee heads traded barbs through the press, lawmakers agreed to a multi-faceted health care bill dealing with telehealth insurance coverage, out-of-network billing, enhanced Medicaid reimbursements and more. This time around, they sent Gov. Charlie Baker legislation protecting reproductive and gender-related care in Massachusetts and expanding access to mental health care services — both issues that House Speaker Ron Mariano emphasized are “still health care.”
“I feel like health care sort of dominates the public policy agenda at the State House, and yet, I think there are so many other critical issues that are facing the commonwealth,” Pellegrini said. “I look at housing costs, I look at what’s going on with transportation and inflation, things like that that are on consumers’ minds.”
Mixed Views on Action During Informals
Each of the three incomplete bills faces a different outlook now that the branches have downshifted into summer vacation and campaign mode. Informal sessions, where a single lawmaker’s objection can stall legislation, are on tap into January.
The House and Senate each approved a version of the bill seeking to limit step therapy, an insurance practice requiring patients to try and fail on preferred treatments before approving a more expensive option prescribed by a physician. Supporters of the bill have slammed the industry practice as bad for patients.
So far, the House has neither agreed to the Senate’s changes nor insisted upon its original draft. Legislative leaders told the News Service that a compromise is possible.
“Step therapy is something that we’re very close on, so we could see that moving forward,” said Sen. Cindy Friedman, who co-chairs the Health Care Financing Committee. “Both houses are very much in favor of it. There were some, what I would consider, minor differences.”
Mariano, who argued in an interview in his office that failures on health care bills are more of an exception than a rule, referenced the House and Senate’s behind-the-scene work to agree on a bill banning discrimination based on natural hairstyles without appointing a conference committee for negotiations as a possible precedent.
The major sticking point between the two versions of the step therapy bill (H 4929 / S 3056) is over how to count the amount of time an insurer gets to respond to a patient’s request to be exempt from a required sequence of treatments that will be covered.
Under the House bill, insurers would get up to three business days to weigh such a request and must respond by the “next business day” in emergency situations. The Senate bill would instead set those thresholds at 72 hours and 24 hours.
Marc Hymovitz, one of the most prominent advocates for step therapy reforms, said that distinction represents “an extremely important difference for patients.”
“If you picture a person having an epileptic seizure who goes into the hospital on a Friday night of a long weekend, the next business day isn’t until Tuesday. Even on a normal weekend, the next business day isn’t until Monday,” Hymovitz, who works as government relations director in Massachusetts for the American Cancer Society Cancer Action Network, said. “A patient suffering a seizure or an asthma attack shouldn’t have to wait until Tuesday to get an answer from their insurer whether or not they can take the medication that their doctor feels is best for their condition.”
While the language difference has major implications, Hymovitz said he remains hopeful that lawmakers “could get this done before the end of this year given the unanimous votes in both chambers.”
Like several other advocates interview, Hymovitz said he does not view health care bills stalling out as a regular trend atop Beacon Hill.
“Massachusetts has had a great track record on health care bills, and it’s a really complicated issue, so I can understand that it’s probably really difficult to get to yes on a lot of these larger issues,” he said.
The Senate gaveled out of formal sessions without taking up a House-approved bill (H 4253) that would overhaul the regulatory hurdles that large health care providers face when they try to expand into markets covered by smaller, financially vulnerable community hospitals who could lose footing as a result.
Senate Ways and Means Committee Chair Michael Rodrigues, a top deputy to Senate President Karen Spilka, said on July 28 the measure was “on the list to be considered.”
The July 31-into-Aug. 1 end of formal sessions came and went without a Senate vote on the bill, and Friedman told the News Service this week that while she likes some sections of the bill, lawmakers “ran out of time.”
“I think we need to expand it a little bit because it’s not just about hospitals and expansions and mergers, but it’s also about, for instance, the introduction of massive amounts of private equity money that are coming into the state and how is that going to affect health care in terms of access and cost,” she said. “But I do think it’s a good bill and an important issue to look at.”
The bill is a top goal for Mariano, who last year pitched it as a way to close a “loophole” and ensure the state has more control when major providers such as Massachusetts General Brigham seek to expand their footprint into areas with smaller community hospitals.
It would update the “determination of need” process and allow the Health Policy Commission to investigate the cost and market impacts of hospital expansions, building on the panel’s existing ability to examine merger and acquisition costs and impacts.
If a provider is seeking a license to expand into a primary service area that overlaps with the service area of a pre-existing independent community hospital, they would need to win a letter of support from the community hospital’s CEO or board chair under the bill. That would give significant power to smaller hospitals to have a say in the growth of their larger competitors.
The legislation drew sharp opposition from Massachusetts General Hospital, Brigham and Women’s Hospital and other major medical institutions, who argue that the state must expand its health care capacity to meet growing needs.
Representatives approved the bill 158-1 while Mass General Brigham was seeking to open new ambulatory centers in Woburn and Westborough and expand its Westwood Center, prompting MGB President of Integrated Care John Fernandez to call it a “misguided 11th-hour intervention.”
The House rode out the end of formals while sitting on a prescription drug pricing reform bill that the Senate approved 39-1 in February, which would subject drug manufacturers and pharmacy benefit managers to the Health Policy Commission’s annual cost trend hearings and subject them to examination by the Center for Health Information and Analysis.
Other sections of the bill (S 2695) would cap out-of-pocket insulin spending at $25 per month and require pharmaceutical companies to notify the state before hiking prices significantly or bringing new drugs to market.
Without explicitly endorsing or opposing the Senate’s bill, Mariano said addressing prescription drug prices in Massachusetts is a tricky affair, encumbered by impacts on employers and national implications.
“These are very complicated, real-life issues that aren’t going to be fixed in a bill that monkeys around the edges,” Mariano told the News Service. “Until you get some buy-in on the national level, you’re not going to have a real impact on drug pricing. You can nibble around the edges here in Massachusetts, but to get significant change on these big areas, you need national help because of the interstate commerce clauses.”
Lawmakers might still return in the next few months to pieces of their shelved economic development bill, legislation that Friedman said in the closing hours of the final formal session contains tranches of spending crucial to the health care sector.
“It’s going to fund our hospitals who are just crashing right now. It’s going to fund nursing homes who don’t have staff,” she told reporters shortly after 11 p.m. on July 31. “It’s going to fund home health aides to take care of all of our vulnerable elderly and children. It’s got incredible workforce development in it. It’s got priorities for municipalities and regional priorities.”
“Like Trying to Patch a Balloon”
The Quincy Democrat said he wants to bulk up the HPC with more analysts who can analyze prescription drug trends and the impact that pharmacy benefit managers have.
Asked what is preventing the Legislature from pursuing that suggestion in the next few months and relying on the added expertise for broader action next session, Mariano at first replied, “Who’s to say that’s not going to happen?” and later said he plans to “take a look at the HPC” next year.
Mariano declined to outline specifically what changes he wants to see made to the commission, saying they need to be “discussed with other stakeholders in this.”
“People seem to think you just sit up here and write legislation, but you can’t do it without talking to a lot of the stakeholders,” he said. “This stuff is like trying to patch a balloon. You press one side of the balloon and something else bubbles up. You can’t push without knowing what the outcome is going to be from your push.”
The Senate has approved some version of a prescription drug pricing reform bill in two straight sessions, covering four years of lawmaking, without the topic emerging for a vote in the House. Baker has also floated some price controls in broader legislation, too.
Rosenthal said she is hopeful to see the idea gain “some traction next session,” calling for the pharmaceutical industry including manufacturers and pharmacy benefit managers to be subject to the HPC’s review process.
“We have great coverage rates, but now we need to really focus on: is it affordable and is everybody getting the same access?” she said.
In Congress, where intense partisan fighting stymies many bills, there’s new momentum this week toward health care reforms.
The Inflation Reduction Act that the U.S. Senate approved Sunday and due for a vote in the House on Friday would allow Medicare to negotiate prescription drug prices for its members, cap out-of-pocket costs at $2,000 and lower Affordable Care Act premiums for millions of Americans, Democrats say.
“I think the pharmaceutical industry threatens that innovation will go out the window if there’s any type of regulation,” Pellegrini, whose organization represents health plans, said. “Clearly, the U.S. Senate ignored that.”
While the action in Washington, D.C. may stand in contrast with work on prescription drug prices atop Beacon Hill, Massachusetts Democrats bristle at the suggestion that health care is an issue area where they struggle.
Mariano cited the state’s 2006 law aimed at expanding health insurance coverage that later served as a framework for the ACA and a 2012 law creating the HPC and Center for Health Information and Analysis.
“We’ve got two or three national models that come out of Massachusetts,” he said.
The failed 2018 health care conference committee — which Mariano led on behalf of the House alongside then-Sen. James Welch — was an “aberration of a new chairman and me not seeing eye to eye,” he said.
“I don’t know if it was because we failed to get to an agreement, but all I know is he was gone in the next year, and then we had two years of pandemic,” Mariano said. “Our whole focus was totally different after 2018. We just didn’t have time to do anything with health care. I don’t think that’s valid criticism. We had one bill that didn’t work, and that’s it, and then we had the pandemic.”
Friedman said she remains “frustrated” that the Legislature has not gotten any closer to some version of the Senate’s prescription drug pricing reforms since her chamber first rolled out the proposal several years ago, but she added that she is “frustrated most days.”
“I move a lot faster than perhaps my colleagues, but look, I also understand that this is a complicated issue, that there are a lot of stakeholders, that there’s not just an easy fix. What I believe should be done may differ from what other, thoughtful people might see as answers,” she said. “And you know, listen, how long did it take Congress to just allow a subset of drugs to be negotiated by Medicare? How long did that take? Years and years and years. So it is a strong wind that blows against change.”