Massachusetts DPH Delays Enforcement Penalties for State Surprise Billing Law

05 January 2022 Health Care Law Today Blog
Author(s): Lawrence W. Vernaglia Alexandra B. Shalom

The Massachusetts Department of Public Health (DPH) has delayed the enforcement penalties for the new notice requirements under the “Patients First Law” until July 1, 2022. This news comes as a relief to the provider community that has been working to understand the new notice and disclosure requirements that largely took effect simultaneously with the Federal No Surprises Act on January 1, 2022.

Both the Federal and Massachusetts legislatures have been working to solve the industry-wide problem of out-of-network (OON) billing. The federal government promulgated the No Surprises Act, which we discussed in prior blog posts here and here. Massachusetts similarly issued new requirements for providers under M.G.L. c. 111 s. 228 to address this inherent challenge in the private insurance and health care coverage markets. Both the federal and state laws took effect on January 1, 2022, each with various levels of delayed implementation and enforcement. These delays reflect governmental recognition of the complexity and challenges involved in implementing the new solutions to out-of-network billing.

On Monday, January 3, 2022, DPH issued two notice bulletins, one to health care providers (which include: doctors of medicine, osteopathy and dental science; registered nurses; social workers; doctors of chiropractic; psychologists; interns, residents, fellows or medical officers; registered pharmacists; hospitals, clinics or nursing homes; and public hospitals) and a second to patients about the requirements under the new M.G.L. ch. 111 s. 228.

Starting January 1, 2022, health care providers are required under Massachusetts law to notify patients if the provider is in or out of the patient’s “health benefit plan.” Providers may also be required to “tell patients how much patients will pay for planned hospital stays, medical procedures, health care services, and referrals – based on the patient’s specific health insurance plan.” For in-network providers, this obligation is only required if the patient asks for this information. For OON providers, they are required to provide charge estimates even if the patient does not request it. This notice does not apply to services provided for an emergency medical condition.

The notice to health care providers reiterates some of the details found in the statute as well as imposing additional requirements:

  • Informing patients about filing complaints. In this bulletin, DPH announced that it expects health care providers to give patients information about how to file complaints with the following if the patient did not receive all of the required notices:
    • DPH Bureau of Health Professions Licensure
    • DPH Bureau of Health Care Safety and Quality
    • Division of Occupational Licensure
    • Board of Registration in Medicine’s Consumer Protection Division


  • Brief clarifying FAQs


  • Clarification on penalties. DPH has indicated that penalties will be assessed as follows:
    • Failure to notify a patient that the health care provider does not participate in the patient’s health plan: $2,500 for each instance.
    • All other failures to comply with the notice requirements:
      • $500 for each instance, for the first substantiated complaint against a health care provider;
      • $1,000 for each instance, for the second substantiated complaint against a health care provider; and
      • $2,500 for each instance, for all following substantiated complaints against a health care provider.

After a penalty has been issued to a health care provider, the provider has an opportunity to request an administrative reconsideration by submitting a written request within 10 business days. DPH has not provided much of an indication about what this reconsideration process will entail.

We note that the January 3, 2022 material was posted on the internet without notice and comment rulemaking, which may have been required by the statute. This is likely to allow DPH time to take in questions and recommendations from provider, plan and patient advocacy constituencies. Consequently, we expect DPH to issue additional guidance and FAQs (if not a regulation) over the coming months as myriad questions and challenges arise that may not be foreseen even today. We may see additional enforcement delays as the difficulty of complying with Section 228 and the No Surprises Act become more apparent.

Foley is here to help you address the short- and long-term impacts in the wake of regulatory changes. We have the resources to help you navigate these and other important legal considerations related to business operations and industry-specific issues. Please reach out to the authors, your Foley relationship partner, or to our Health Care Practice Group with any questions.

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