NOTICE: - While reasonable efforts have been made to assure the accuracy of the data herein, this is NOT the official version of Senate Journal. It is published to provide information in a timely manner, but has not been proofread against the events of the session for this day. All information obtained from this source should be checked against a proofed copy of the Senate Journal.


UNCORRECTED PROOF OF THE
JOURNAL OF THE SENATE.


Seal of the Commonwealth of Massachusetts

JOURNAL OF THE SENATE.

Friday, October 8, 2010.

Met according to adjournment at nine o’clock A.M. (Mr. Donnelly in the Chair) (having been appointed by the President, under authority conferred by Senate Rule 4, to perform the duties of the Chair).

The Chair (Mr. Donnelly), members, guests and employees then recited the pledge of allegiance to the flag.

Report of a Committee.

By Mr. Eldridge, for the committee on Municipalities and Regional Government, on petition, a Bill amending the charter of the town of Middleborough (Senate, No. 2617) [Local approval received];
Read and, under Senate Rule 26, placed in the Orders of the Day for the next session.

PAPERS FROM THE HOUSE.

Notice was received from the House announcing the following appointment by the Minority Leader of the House of Representatives:
That Representative Hill of Ipswich to the special commission established (under Section 72 of Chapter 188 of the Acts of 2010) to examine efficient and effective strategies to implement school district collaboration and regionalization.

Engrossed Bill.

An engrossed Bill providing for a sewerage in the town of Foxborough (see House, No. 4860) (which originated in the House), having been certified by the Senate Clerk to be rightly and truly prepared for final passage was passed to be enacted, two-thirds of the members present having voted in the affirmative, and was signed by the Acting President (Mr. Donnelly) and laid before the Governor for his approbation.

Engrossed Bill Returned by Governor With Recommendation of Amendment.

The engrossed Bill authorizing property tax exemption for certain small sheds and outbuildings in the town of Carver (see Senate, No. 2255) (which on Tuesday, September 28, 2010, had been laid before the Governor for his approbation), was returned to the Senate Clerk by the Governor on Friday, October 7, 2010, at twenty-five minutes before five o’clock P.M., with a message recommending an amendment.

The message (Senate, No. 2634) was read and the Senate proceeded to reconsider the bill, in accordance with the provisions of Article LVI of the Amendments to the Constitution.
Pending action thereon, the bill was referred to the committee on Bills in the Third Reading, on motion of Mr. Tarr.

Motion To Take Matters Out of the Orders of the Day.

The Chair (Mr. Donnelly) asked unanimous consent to take the engrossed Bill relative to comprehensive siting reform for land based wind projects (see House, No. 4955) out of the Orders of the Day for consideration,-- but objection was made thereto by Mr. Tarr.
The engrossed bill was returned to the Orders of the Day for the next session.

Matter Taken Out of the Orders of the Day.

There being no objection, the following matter was taken out of the Orders of the Day and considered, as follows:
The House Bill making appropriations for the Fiscal Years 2010 and 2011 to provide for supplementing certain existing appropriations and for certain other activities and projects (House, No. 5028, amended),-- was considered, the main question being on ordering the bill to a third reading.

The pending amendment previously moved by Mr. Brewer that the bill be amended in section 2C.I by inserting, after item 1599-4284, the following 8 items:
“1599-4302 ................................................................................ $6,095
1599-4303 ............................................................................... $11,551
1599-4307 ................................................................................. $4,681
1599-4308 ............................................................................... $64,443
1599-4309 ............................................................................... $36,163
1599-4316 ............................................................................. $209,358
1599-4317 ............................................................................. $240,909
1599-4318 ............................................................................... $46,698”;

In section 3, in item 4000-0700, by striking out the figure “$196,848,914” and inserting in place thereof the following figure:- “$194,791,454”;

in said section 3, by inserting after the words “Department of Public Health” the following item:-
“4510-0616 …………………………………………………….$528,223

Commonwealth Substance Abuse Treatment and Prevention Fund…100%”; and

In said section 3, by inserting after item 4513-1020, the following 3 items:-

“4590-0250……………………………………………$326,958

OFFICE OF CHILDREN, YOUTH AND FAMILY SERVICES.
Department of Children and Families.

4800-0015 ……………………………………………$483,561
4800-0025 ……………………………………………$168,718”;

In section 3A, by inserting, after the words “for the purposes of those items” the following item:-

JUDICIARY.
Trial Court

0330-0312 For the office of the Trial Court for losses in revenue associated with Civil Motor Vehicle Infraction fees…….…$300,000”;

In said section 3A, by inserting after item1599-1759, the following 2 items:-

Department of Public Health.

4510-0715 For the operation of a center for primary care recruitment and placement to improve access to primary care services; provided, that funds may be expended for primary care workforce development and loan forgiveness grant programs …………………………………….$157,000

4510-0716 For the operation of an evidence-based outreach and education program designed to provide information and education on the therapeutic and cost-effective utilization of prescription drugs to physicians, pharmacists and other health care professionals authorized to prescribe and diagnose prescription drugs …………………$93,000”;

By striking out section 32;

By striking out section 35 and inserting in place thereof the following section:-

“SECTION 35. Subsection (a) of section 4 of chapter 614 of the acts of 1968, as most recently amended by section 161 of chapter 240 of the acts of 2010, is hereby further amended by striking out the third sentence.”;

In section 39, by striking out the last 2 sentences and inserting in place thereof the following 3 sentences:-

“Transitional relief payments shall be subject to approval by the Centers for Medicare and Medicaid Services of the amendment to the MassHealth Section 1115 Demonstration as submitted by the commonwealth on March 1, 2010, and in accordance with the methodology approved therein. Such payments may be made only pursuant to written certification to the comptroller and the house and senate committees on ways and means by the secretary of administration and finance that sufficient state revenue is available to fund the non-federal share for such payments, consistent with the requirement for a balanced budget. The transfer authorization from this section shall expire on June 30, 2011.”;

By striking out section 51 and inserting in place thereof the following section:-

“SECTION 51. Item 4000-0640 of said section 2 of said chapter 131 is hereby amended by adding the following words:- ; and provided further, that notwithstanding any general or special law to the contrary, contingent upon receipt of not less than $27,200,000 in TANF contingency funds authorized by Title IV, section 403(b) of the Social Security Act, the division shall establish nursing facility supplemental Medicaid rates and that a sum of $27,200,000 shall be distributed as supplemental nursing facility Medicaid rates for fiscal year 2011”; and

By striking out sections 63 to 87, inclusive;

By striking out section 91 and inserting in place thereof the following section:-

“SECTION 91. Section 2E of said chapter 131 is hereby amended by striking out item 1595-1068 and inserting in place thereof the following item:-

1595-1068 For an operating transfer to the MassHealth provider payment account in the Medical Assistance Trust Fund established in section 2QQQ of chapter 29 of the General Laws, notwithstanding the requirement that transfers be completed no later than June 30, 2011 in the introductory paragraph of this section; provided, that these funds shall be expended only for services provided during state or federal fiscal year 2011, and no amounts previously or subsequently transferred into the Medical Assistance Trust Fund shall be expended on payments described in the section 1115 demonstration waiver for services provided during state fiscal year 2011, or payments described in the state plan for services provided during federal fiscal year 2011; provided further, that all payments from the Medical Assistance Trust Fund shall be subject to the availability of federal financial participation, shall be made only in accordance with federally-approved payment methods, shall be consistent with federal funding requirements and all federal payment limits as determined by the secretary of health and human services and shall be subject to the terms and conditions of an agreement with the executive office of health and human services; provided further, that any increase in payment made from the trust fund totaling an amount greater than $251,000,000 in fiscal year 2011 shall be made only after the secretary of health and human services certifies that any increase in payments from the trust fund shall not exceed the negotiated limit for section 1115 waiver spending; provided further, that the secretary of health and human services shall notify, in writing, the house and senate committees on ways and means and the joint committee on health care financing of any increases in payments within 15 days; provided further, that the secretary of health and human services shall make a payment of up to $247,605,130 from the Medical Assistance Trust Fund to the Cambridge Public Health Commission for dates of service in state and federal fiscal year 2011, only after the Cambridge Public Health Commission transfers up to $95,105,130 of its funds to the Medical Assistance Trust Fund using a federally-permissible source of funds which shall fully satisfy the nonfederal share of such payment; and provided further, that the secretary of health and human services shall make payments from the Medical Assistance Trust Fund totaling an amount not to exceed $135,000,000 to privately owned acute hospitals in the commonwealth for purposes of transitional relief. Such transitional relief payments shall be in addition to payments from the Medical Assistance Trust Fund made pursuant to supplemental payment agreements entered into between the executive office of health and human services and hospitals designated by the commonwealth as Essential MassHealth Hospitals and Public Service Hospitals. Transitional relief payments shall be subject to approval by the Centers for Medicare and Medicaid Services of the amendment to the MassHealth Section 1115 Demonstration as submitted by the commonwealth on March 1, 2010, and in accordance with the methodology approved therein. Such payments may be made only pursuant to written certification to the comptroller and the house and senate committees on ways and means by the secretary of administration and finance that sufficient state revenue is available to fund the non-federal share for such payments, consistent with the requirement for a balanced budget. Payments and transfers from this appropriation in fiscal year 2011 may also be used for fiscal year 2010 hospital payments …………….$686,737,746”;

By striking out section 94 and inserting in place thereof the following section:-

“SECTION 94. Said chapter 131 is hereby further amended by striking out section 136 and inserting in place thereof the following section:-

“Section 136. (a) Notwithstanding any general or special law to the contrary and except as provided in subsection (b), for fiscal year 2011, the definition of “eligible individual” in section 3 of chapter 118H of the General Laws shall not include a person who is not eligible to receive federally-funded benefits under sections 401, 402 or 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, as amended,.

(b) Notwithstanding any general or special law to the contrary, the secretary of administration and finance, the secretary of health and human services and the executive director of the health insurance connector authority may, in their discretion and subject only to the terms and conditions in this subsection, establish or designate a health insurance plan in which a person who is not eligible to receive federally-funded benefits under said sections 401, 402 or 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193, as amended, but who is an eligible individual pursuant to said section 3 of said chapter 118H may enroll for the period including July 1, 2010 to June 30, 2011, inclusive. The plan may be contracted for selectively from the health plans that contracted in fiscal year 2010 to provide insurance coverage to commonwealth care or MassHealth enrollees. Notwithstanding any general or special law to the contrary, the secretary of administration and finance, the secretary of health and human services and the executive director of the commonwealth health insurance connector authority may, in their discretion and subject only to the terms and conditions in this subsection, make payments from the Commonwealth Care Trust Fund established in section 2OOO of chapter 29 of the General Laws to operate the plan using resources in the trust fund. Total state expenditures for providing coverage to all such persons, net of enrollee contributions and any federal financial participation, shall not exceed resources available in the trust fund not required to fund coverage of commonwealth care; provided that this shall not result in a reduction of services to commonwealth care enrollees. To the extent that additional federal financial participation becomes available for paying the costs of such coverage, the secretary of administration and finance may direct the comptroller to make such amounts available from the General Fund for the purpose of paying for the costs of such coverage. If the secretary of administration and finance, the secretary of health and human services and the executive director of the commonwealth health insurance connector authority determine that the projected costs of enrolling eligible individuals in such coverage in fiscal year 2011 will exceed funds in the trust fund that are available for this program, they may limit enrollment in such coverage. If the secretary of administration and finance, the secretary of health and human services and the executive director of the commonwealth health insurance connector authority are unable to establish, reauthorize or designate a health insurance plan under this section, the secretary of administration and finance may direct the comptroller to transfer up to $20,000,000 from the Commonwealth Care Trust Fund to the General Fund for the cost of health care services.”;

By striking out section 96;

In section 102, by striking out the words “Information related to rate adjustment factors and rates of reimbursement for review by the division shall be deemed confidential and exempt from the definition of public records in clause Twenty-sixth of section 7 of chapter 4, unless the commissioner disapproves a rate filing based upon a proposed rate adjustment factor and the affected carrier requests a hearing, in which case the rate adjustment factor material shall no longer be exempt” and inserting in place thereof the following words:- “Any rates of reimbursement included in the rate filing materials submitted for review by the division shall be deemed confidential and exempt from the definition of public records in clause Twenty sixth of section 7 of chapter 4. The commissioner shall adopt regulations to carry out this section”;

By inserting after section 102 the following 2 sections:-

“SECTION 102A. Chapter 288 of the acts of 2010 is hereby amended by inserting after section 32 the following section:-

Section 32A. Said chapter 176J is hereby further amended by striking out section 11, inserted by section 32, and inserting in place thereof the following section:-

Section 11. (a) A carrier that offers a health benefit plan that: (i) provides or arranges for the delivery of health care services through a closed network of health care providers; and (ii) as of the close of any preceding calendar year, has a combined total of 5,000 or more eligible individuals, eligible employees and eligible dependents, who are enrolled in health benefit plans sold, issued, delivered, made effective or renewed to qualified small businesses or eligible individuals, shall offer to all eligible individuals and small businesses in at least 1 geographic area at least 1 plan with either a reduced or selective network of providers or a plan in which providers are tiered and member cost sharing is based on the tier placement of the provider.

The base premium for the reduced or selective or tiered network plan shall be at least 12 per cent lower than the base premium of the carrier’s most actuarially similar plan with the carrier’s non-selective or non-tiered network of providers. The savings may be achieved by means including, but not limited to: (i) the exclusion of providers with similar or lower quality based on the standard quality measure set with higher health status adjusted total medical expenses or relative prices, as determined under section 6 of chapter 118G; or (ii) increased member cost-sharing for members who utilize providers for non-emergency services with similar or lower quality based on the standard quality measure set and with higher health status adjusted total medical expenses or relative prices, as determined under section 6 of chapter 118G.

(b) A tiered network plan shall only include variations in member cost-sharing between provider tiers which are reasonable in relation to the premium charged and ensure adequate access to covered services. Carriers shall tier providers based on quality performance as measured by the standard quality measure set and by cost performance as measured by health status adjusted total medical expenses and relative prices. Where applicable quality measures are not available, tiering may be based solely on health status adjusted total medical expenses or relative prices or both.

The commissioner shall promulgate regulations requiring the uniform reporting of tiering information, including, but not limited to requiring, at least 90 days before the proposed effective date of any tiered network plan or any modification in the tiering methodology for any existing tiered network plan, the reporting of a detailed description of the methodology used for tiering providers, including: the statistical basis for tiering; a list of providers to be tiered at each member cost-sharing level; a description of how the methodology and resulting tiers will be communicated to each network provider, eligible individuals and small groups; and a description of the appeals process a provider may pursue to challenge the assigned tier level.

(c) The commissioner shall determine network adequacy for a tiered network plan based on the availability of sufficient network providers in the carrier’s overall network of providers.

(d) The commissioner shall determine network adequacy for a selective network plan based on the availability of sufficient network providers in the carrier’s selective network.

(e) In determining network adequacy under this section the commissioner of insurance may take into consideration factors such as the location of providers participating in the plan and employers or members that enroll in the plan, the range of services provided by providers in the plan and plan benefits that recognize and provide for extraordinary medical needs of members that may not be adequately dealt with by the providers within the plan network.

(f) Carriers may: (i) reclassify provider tiers; and (ii) determine provider participation in selective and tiered plans no more than once per calendar year except that carriers may reclassify providers from a higher cost tier to a lower cost tier or add providers to a selective network at any time. If the carrier reclassifies provider tiers or providers participating in a selective plan during the course of an account year, the carrier shall provide affected members of the account with information regarding the plan changes at least 30 days before the changes take effect. Carriers shall provide information on their websites about any tiered or selective plan, including but not limited to, the providers participating in the plan, the selection criteria for those providers and where applicable, the tier in which each provider is classified.

(g) The division of insurance shall report annually on utilization trends of eligible employers and eligible individuals enrolled in plans offered under this section. The report shall include the number of members enrolled by plan type, aggregate demographic, geographic information on all members and the average direct premium claims incurred, as defined in section 6, for selective and tiered network products compared to non-selective and non-tiered products.”

SECTION 102B. Section 33 of said chapter 288 is hereby repealed.”; and

In section 122, by striking out the words “Section 27” and inserting in place thereof the following words:- “Sections 27 and 32A”;

In section 123, by striking out the words “ year ending June 30, 2010” and inserting in place thereof the following words:-“ years ending June 30, 2010 and June 30, 2011.”;

In section 127, by striking out the words “to assist homeowners in the town of Stow who are customers of the Assabet Water Company and”;

In said section 127 by striking out the words “funds for the water wells, treatment and storage facilities, and distribution pipes shall be available only to residents of the town of Stow who are customers of the Assabet Water Company; provided further”;

By striking out section 128;

By inserting after section 131 the following 6 sections:-

“SECTION 131A. Item 0699-0015 of section 2 of chapter 27 of the acts of 2009 is hereby amended by adding the following words:- ; provided further, that notwithstanding any general or special law to the contrary or other provisions of this item, the comptroller may charge the payments authorized in this item to the appropriate budgetary or other fund subject to a plan which the comptroller shall file 10 days in advance with the house and senate committees on ways and means; and provided further, that the comptroller shall transfer from this item to the Government Land Bank Fund an amount equal to the amount by which debt service charged to the fund exceeds revenue deposited to the fund.

SECTION 131B. Item 1775-0100 of said section 2 of said chapter 131 is hereby amended by inserting after the words “808 CMR 1.06(4); provided further, that” the following words:- “upon the receipt of said written certification by the secretary of administration and finance”

SECTION 131C. Item 4000-0600 of said section 2 of said chapter 131 is hereby amended by striking out the words:- “section 159” and inserting in place thereof the following words:- “the last clause of item 4000-0640.”

SECTION 131D. Item 4590-0250 of said section 2 of said chapter 131 is hereby amended by adding the following words:- “; and provided further, that funds shall be expended for a program to address the needs of children under the age of 18 with Type 1 or Type 2 diabetes in underserved areas.”

SECTION 131E. Item 8900-0001 of said section 2 of said chapter 131 is hereby amended by inserting at the end thereof the following language:- “and provided further, that the department shall expend not less than $1,000,000 for jail diversion programs in conjunction with the Department of Public Health.

SECTION 131F: Section 149 of chapter 131 of the acts 2010 is hereby repealed.”;

In section 134, by striking out the figure “133” and inserting in place thereof the following figure:- “132”;

By striking out section 135 and inserting in place thereof the following section:-

“SECTION 135. Section 35 shall take effect as of August 5, 2010.”; and

In section 136, by striking out the figure “132” and inserting in place thereof the following figure:-“131”,--was considered; and it was adopted.

Messrs. O’Leary and Buoniconti moved that the bill be amended by striking Section 31 and inserting in place thereof the following text; -

SECTION 31. Chapter 176D is hereby amended by inserting after section 3B the following section:

Section 3C. (a) As used in this section the following words shall, unless the context clearly requires otherwise, have the following meanings:

“Ambulance service provider”, a person or entity licensed by the department of public health under section 6 of chapter 111C to establish or maintain an ambulance service.

“Ambulance services”, 1 or more of the services that an ambulance service provider is authorized to render under its ambulance service license.

“Insurance contract”, a contract of or policy for insurance, motor vehicle insurance, indemnity, medical or hospital service, dental or optometric, suretyship or
annuity issued, proposed for issuance or intended for issuance by an insurer.

“Insured”, an individual entitled to ambulance services benefits under an insurance contract.

“Insurer”, a person as defined in section 1 of chapter 176D; a health maintenance organization as defined in section 1 of chapter 176G; a nonprofit hospital service corporation organized under chapter 176A; an organization as defined in section 1 of chapter 176I that participates in a preferred provider arrangement as defined in said section 1 of said chapter 176I; a carrier offering a small group health insurance plan under chapter 176J; a company as defined in section 1 chapter 175; an employee benefit trust; a self insurance plan; and a company authorized under section 113A of said chapter 175 to issue a motor vehicle liability policy, as defined in section 34A of chapter 90.

(b) Notwithstanding any general or special law to the contrary, if a municipally owned and operated ambulance service provider provides an ambulance service to an insured but is not an ambulance service provider under contract to the insured‘s insurer, the insured‘s insurer shall pay the ambulance service provider directly and promptly for the ambulance service rendered to the insured. The payment shall be made to the municipally owned and operated ambulance service provider: (i) even if the insured‘s insurance contract prohibits the assignment of benefits thereunder, if the insured executes an assignment of benefits to the ambulance service provider; or (ii) if the insured‘s insurance contract does not prohibit the assignment of benefits thereunder, but the insured is either incapable or unable as a practical matter to execute the assignment of benefits; or (iii) in connection with an insurance contract that contains a prohibition against such assignment of benefits. A municipally owned and operated ambulance service provider shall not be considered to have been paid for an ambulance service rendered to an insured, if the insurer makes payment for the ambulance service to the insured. A municipally owned and operated ambulance service provider shall have a right of action against an insurer that fails to make a payment to it pursuant to this subsection.
The amendment was rejected.

Messrs. Tisei, Tarr, Knapik, Hedlund, and Ross moved that the bill be amended in Section 92 by adding the following at the end thereof, after the word budget: “,provided, however, that no payments shall be made from this account unless and until approved by the United States Office of Management and Budget; and provided further that the secretary of health and human services shall conduct a public hearing relative to the distribution methodology of the funds within three months of the passage of this act, and provided further that no payments shall be made from this account unless and until the basis for any distribution methodology is reported to the clerks of the house and senate.”
The amendment was rejected.

Messrs. Tisei, Tarr, Knapik, Hedlund, and Ross moved that the bill be amended by adding the following new section at the end thereof:
Section XX. The Secretary of Administration and Finance shall certify to the Ways and Means Committees of the House and Senate the amount of revenue necessary to support the levels of spending attributable to this act, the potential impact on other budget accounts that will result from the passage of this act, and the potential need for further appropriations for accounts receiving funds in this act, not later than thirty days following its passage.
The amendment was adopted.

Messrs. Tisei, Tarr, Knapik, Hedlund, and Ross moved that the bill be amended by adding at the end thereof the following new section:
Section XX. The Department of Correction shall, not later than thirty days following the passage of this act, produce a report detailing the uses of funds expended pursuant to item 8900-0001 as contained herein, and identifying the cause of any deficiencies addressed by such expenditures specific to each facility where a deficiency has occurred. Said report shall also indicate the potential for additional deficiencies as well as the potential need for reductions in service, the release of inmates and/or the closure of any facility in the current fiscal year.
The amendment was adopted.

Mr. Michael Moore moved that the bill be amended in Section 2C.I by inserting, after item 1599-4384, the following item:
1599-4352 ............................................................................... $141,540
The amendment was rejected.
After remarks, the bill as amended was then ordered to a third reading, read a third time and was passed to be engrossed, in concurrence, with the amendments.
Sent to the House for concurrence in the amendments.

Order Adopted.

On motion of Mr. Tarr,--

Ordered, That when the Senate adjourns today, it adjourn to meet again on Tuesday next at eleven o’clock A.M., and that the Clerk be directed to dispense with the printing of a calendar.

On motion of the same Senator, at eight minutes before two o’clock P.M., the Senate adjourned to meet again tomorrow at eleven o’clock A.M.