Section 59 Behavioral Health Payor Surcharge

Chapter 118E of the General Laws is hereby amended by inserting after section 69 the following section:-

Section 69A. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meaning:-

"Fund", the Behavioral Health Access and Crisis Intervention Trust Fund established under section 2RRRRR of chapter 29.

"Payments subject to surcharge'', as defined in section 64.

"Surcharge payors'', those entities defined as surcharge payors pursuant to section 64, who made payments subject to surcharge in the amount of $1,000,000 or more during the previous state fiscal year or the most recent state fiscal year for which data is available.

"Total behavioral health surcharge amount", an amount equal to $33,700,000

(b) Under regulations adopted by the secretary of health and human services, each surcharge payor in the commonwealth shall pay to the secretary of health and human services, for deposit in the fund, a behavioral health payor surcharge assessed by the secretary. Surcharge payors shall pay the surcharge on a schedule determined by regulation. Each surcharge payor shall pay a portion of the total behavioral health surcharge amount proportional to their payments subject to surcharge during the most recent period for which data is available, as further defined in regulation.

(c) A surcharge payor's liability to the fund shall in the case of a transfer of ownership be assumed by the successor in interest to the surcharge payor.

(d) The executive office shall establish by regulation an appropriate mechanism for enforcing a surcharge payor's liability to the fund if a surcharge payor does not make a scheduled payment to the fund; provided, however, that the executive office may establish threshold liability amounts below which enforcement may be modified or waived. Such enforcement mechanism may include assessment of interest on the unpaid liability at a rate not to exceed an annual percentage rate of 18 per cent and late fees or penalties at a rate not to exceed 5 per cent per month. Such enforcement mechanism may also include notification to the office of Medicaid requiring an offset of payments on the claims of the surcharge payor, any entity under common ownership or any successor in interest to the surcharge payor, from the office of Medicaid in the amount of payment owed to the fund including any interest and penalties, and to transfer the withheld amounts into the fund. If the office of Medicaid offsets claims payments as ordered by the office, the office of Medicaid shall be considered not to be in breach of contract or any other obligation for payment of non-contracted services, and a surcharge payor whose payment is offset under an order of the office shall serve all Title XIX recipients under the contract then in effect with the executive office. In no event shall the office direct the office of Medicaid to offset claims unless the surcharge payor has maintained an outstanding liability to the fund for a period longer than 45 days and has received proper notice that the office intends to initiate enforcement actions under regulations promulgated by the office.

This section establishes a behavioral health payor surcharge to be assessed by the Executive Office of Health and Human Services and deposited into the Behavioral Health Access and Crisis Intervention Trust Fund.