Text of MA S 2538 (2025)

SENATE . . . . . . . . . . . . . . No. 2538 The Commonwealth of Massachusetts _______________ In the One Hundred and Ninety-Fourth General Court (2025-2026) _______________ SENATE, June 18, 2025. The committee on Senate Ways and Means to whom was referred the Senate Bill strengthening health care protections in the Commonwealth (Senate, No. 2522), - reports, recommending that the same ought to pass with an amendment substituting a new draft with the same title (Senate, No. 2538). For the committee, Michael J. Rodrigues 1 of 17 FILED ON: 6/18/2025 SENATE . . . . . . . . . . . . . . No. 2538 The Commonwealth of Massachusetts _______________ In the One Hundred and Ninety-Fourth General Court (2025-2026) _______________ An Act strengthening health care protections in the Commonwealth. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: 1 SECTION 1. Clause twenty-sixth of section 7 of chapter 4 of the General Laws, as 2 amended by section 1 of chapter 363 of the acts of 2024, is hereby further amended by adding 3 the following subclause:- 4 (x) the name, home address, personal email address, home telephone number or mobile 5 telephone number and any other personal information of an individual engaged in the provision, 6 facilitation or promotion of reproductive health care services or gender-affirming health care 7 services, as defined in section 11I½ of chapter 12. 8 SECTION 2. Section 11I ½ of chapter 12 of the General Laws, as appearing in the 2022 9 Official Edition, is hereby amended by adding the following 3 subsections:- 10 (g) Notwithstanding any general or special law to the contrary and except as required by 11 federal law, no state or local agency of the commonwealth or officer or employee or any other 12 person acting on behalf of a state or local agency of the commonwealth while acting under the 13 color of law shall cooperate with or provide information or assistance to any federal law 2 of 17 14 enforcement agency or other agency or any other state or local law enforcement agency or other 15 agency or any individual or quasi-law enforcement agent or expend or use any time, money, 16 facilities, property, equipment, personnel or other resources in relation to an investigation or 17 inquiry into services constituting legally-protected health care activity if such services would be 18 lawful as provided had they occurred entirely in the commonwealth. 19 (h) Evidence relating to the involvement of an individual in any legally-protected health 20 care activity shall not be offered as evidence that such individual has engaged in wrongdoing, 21 whether civil, criminal, professional or otherwise, by virtue of the fact that the individual who 22 received such services was not physically present in the commonwealth when they received such 23 services. Nothing in this section shall prevent a party from offering such evidence in a 24 proceeding that: (i) sounds in tort or contract; (ii) is actionable, in an equivalent or similar 25 manner, under the laws of the commonwealth; and (iii) was brought by the patient who received 26 reproductive health care services or gender-affirming health care services or the patient’s legal 27 representative. 28 (i) The attorney general may bring a civil action for injunctive or other equitable relief to 29 enforce this section. 30 SECTION 3. Section 12 of chapter 12C of the General Laws, as so appearing, is hereby 31 amended by striking out subsection (b) and inserting in place thereof the following:- 32 (b) The center shall permit a government agency or authority to access identifiable health 33 information of an individual only to the extent necessary for such government agency or 34 authority to accomplish the public purposes for which access was given, subject to subsection (f) 35 of this section. Except as required by federal law, the center shall not provide access to any data, 3 of 17 36 including de-identified data or any other data that would allow the identification of a patient or 37 provider in response to an out-of-state or federal inquiry or investigation into services 38 constituting legally protected health care activity, as defined in section 11I½ of chapter 12. 39 (c) The center shall permit providers, provider organizations and public and private 40 health care payers access to identifiable health information of an individual solely for the 41 purposes of carrying out treatment, payment, or health care operations. 42 (d) The center may disclose identifiable health information of an individual for research, 43 regardless of the source of funding of the research, provided that: (i) the center obtains 44 documentation of authorization from the individual patient; or (ii) waiver of individual 45 authorization has been approved by either an institutional review board or privacy board. 46 (e) The center may disclose de-identified health information of an individual for the 47 purposes of lowering total medical expenses, coordinating care, benchmarking, quality analysis, 48 research, administrative or planning purposes, informing consumer health care decisions, or 49 other purposes that aim to improve healthcare or public health outcomes for Commonwealth 50 residents that are consistent with the goals this chapter. A recipient of de-identified health 51 information of an individual shall not use such information or data to identify any person for any 52 purpose. 53 (f) A recipient of de-identified or identifiable health information of an individual patient 54 shall not use such information to: (i) conduct a criminal, civil or administrative investigation into 55 any individual patient; or (ii) impose criminal, civil or administrative liability on any individual 56 patient. 4 of 17 57 (g) Access to identifiable health information of an individual, including personal data as 58 defined in section 1 of chapter 66A, authorized under this section shall be deemed to comply 59 with the requirements of chapter 66A. 60 (h) The center may charge an application fee or other fees sufficient to process and 61 provide such access to non-governmental entities. 62 (i) A violation of this section, or any rule or regulation issued hereunder, shall constitute 63 a violation of chapter 93A. 64 SECTION 4. Section 75 of chapter 31 of the General Laws, as amended by chapter 238 65 of the acts of 2024, is hereby further amended by adding the following paragraph:- 66 Nothing in this section shall be construed to permit civil service employees to furnish 67 information to, or cooperate with, law enforcement authorities in contravention of section 11I½ 68 of chapter 12 and section 63 of chapter 147. 69 SECTION 5. Section 10B of chapter 66 of the General Laws is hereby amended by 70 striking out, in lines 34 and 35, as appearing in the 2022 Official Edition, the words “persons 71 providing or training in family planning services,” and inserting in place thereof the following 72 words:- persons engaged in the provision, facilitation or promotion of reproductive health care 73 services or gender-affirming health care services, as defined in section 11I½ of chapter 12. 74 SECTION 6. Chapter 93 of the General Laws is hereby amended by adding the following 75 section:- 76 Section 115. (a) As used in this section, the following terms shall have the following 77 meanings unless the context requires otherwise: 5 of 17 78 “Electronic communication”, any transfer of signs, signals, writing, images, sounds, data 79 or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, 80 photoelectronic or photo-optical system; provided, however, such term shall not include: (i) any 81 communication made through a tone only paging device; (ii) any communication made through a 82 tracking device consisting of an electronic or mechanical device which permits the tracking of 83 the movement of a person or object; or (iii) any communication that is disseminated by the 84 sender through a method of transmission that is configured so that such communication is readily 85 accessible to the public. 86 “Electronic communication services”, any service which provides to users thereof the 87 ability to send or receive wire or electronic communications. 88 “Prohibited violation”, any civil or criminal offense defined under the laws of another 89 state that creates civil or criminal liability for legally-protected health care activity as defined in 90 section 11I½ of chapter 12. 91 (b) A business entity that operates in the commonwealth and provides electronic 92 communication services or remote computing services to residents of the commonwealth or 93 business entities organized under the laws of the commonwealth shall not comply with a 94 subpoena, warrant or other civil or criminal legal process for records, information or assistance 95 that the business entity knows relates to a resident, health care provider or business entity in the 96 commonwealth in connection with legally-protected health care activity as defined in section 97 11I½ of chapter 12, except as required by a valid federal law, unless the subpoena, warrant or 98 other civil or criminal legal process includes, or is accompanied by, an attestation, made under 99 penalty of perjury, stating that the subpoena, warrant or other civil or criminal legal process does 6 of 17 100 not seek documents, information or testimony relating to an investigation into, or the 101 enforcement of, another state’s law that asserts criminal or civil liability for the provision, 102 receipt, attempted provision or receipt, assistance in the provision or receipt or attempted 103 assistance in the provision or receipt of legally=protected health care activity that is lawful in the 104 commonwealth. 105 (c) Any false attestation submitted under this section shall be subject to a statutory 106 penalty of not more than $50,000 per violation. Submission of such attestation subjects the 107 attester to the jurisdiction of the courts of the commonwealth for any suit, penalty or damages 108 arising out of a false attestation under this section. 109 (d) The attorney general may bring a civil action for injunctive or other equitable relief to 110 compel any business entity that operates in the commonwealth and that provides electronic 111 communications services or remote computing services to residents of the commonwealth to 112 comply with this section. 113 SECTION 7. Section 21 of chapter 94C of the General Laws, as most recently amended 114 by section 6 of chapter 285 of the acts of 2024, is hereby further amended by striking the first 115 paragraph and inserting in place thereof the following:- 116 The pharmacist filling a written, electronic or oral prescription for a controlled substance 117 shall package the controlled substance in a container, affixing to the container a label showing 118 the date of filling, the pharmacy name and address, the filling pharmacist's initials, the serial 119 number of the prescription, the name of the patient, unless it is a veterinary prescription, the 120 name of the prescribing practitioner except as otherwise provided in this section, the name of the 121 controlled substance, directions for use and cautionary statements, if any, contained in such 7 of 17 122 prescription or required by law, and if the controlled substance is dispensed as tablets or capsules 123 the number of same in such container. 124 Except as required by federal law, the label for a controlled substance prescribed for 125 reproductive health care services or gender-affirming health care services, as defined in section 126 11I½ of chapter 12, shall, at the request of the provider, include the name of the prescribing 127 health care practice instead of the name of the prescribing practitioner; provided, however, that a 128 pharmacy benefit manager, as defined in section 1 of chapter 176Y, shall not recoup or recover 129 funds from a pharmacy due to the absence of such dispensing practitioner’s name under this 130 paragraph. The department may promulgate regulations to implement this paragraph. 131 SECTION 8. Section 22 of said chapter 94C, as appearing in the 2022 Official Edition, is 132 hereby amended by adding the following subsection:- 133 (d) Notwithstanding subsection (b) and to the extent allowable under federal law, the 134 label for a controlled substance prescribed for reproductive health care services or gender- 135 affirming health care services, as defined in section 11I½ of chapter 12, may include the name of 136 the dispensing health care practice instead of the name of the dispensing practitioner. 137 SECTION 9. Paragraph (1) of subsection (a) of section 24A of said chapter 94C, as so 138 appearing, is hereby amended by adding the following sentence:- 139 Notwithstanding any other provision of this section, medications specifically prescribed 140 for reproductive health care services and gender-affirming health care services, as defined in 141 section 11I ½ of chapter 12, shall be excluded from this electronic monitoring program unless 142 reporting of such is determined by the department to be necessary to protect the public health. 8 of 17 143 SECTION 10. Said section 24A of said chapter 94C, as so appearing, is hereby further 144 amended by adding the following subsection:- 145 (n) Notwithstanding any general or special law to the contrary, except as required by 146 federal law, the department shall not provide disaggregated data or individually identifiable data, 147 from the prescription drug monitoring program to a federal law enforcement agency or other 148 agency or any other state or local law enforcement agency or other agency or any private citizen 149 or entity or quasi-law enforcement agent in relation to an investigation or inquiry into 150 reproductive health care services or gender-affirming health care services, as defined in section 151 11I½ of chapter 12, if such services would be lawful as provided had they occurred entirely in 152 the commonwealth. This section shall not be construed to apply to prescription drugs for usages, 153 including off-label usages, that are unrelated to reproductive health care services or gender- 154 affirming health care services. 155 SECTION 11. Chapter 111 of the General Laws is hereby amended by inserting after 156 section 51 the following section:- 157 Section 51¼. (a) For purposes of this section, the following terms shall have the 158 following meaning unless the context clearly requires otherwise: 159 “Emergency medical condition”, a medical condition manifesting itself by acute 160 symptoms of sufficient severity such that the absence of immediate medical attention could 161 reasonably be expected to result in: (i) placing the health of the patient in serious jeopardy; (ii) 162 serious impairment of bodily functions; or (iii) serious dysfunction of any bodily organ or part; 163 provided, however, that such conditions shall include, but shall not be limited to: ectopic 164 pregnancy, complications of pregnancy loss or abortion, risks to future fertility, preterm 9 of 17 165 premature rupture of membranes, placental abruption or bleeding from placenta previa or 166 emergent hypertensive disorders, such as preeclampsia and eclampsia and peripartum 167 cardiomyopathy, and any other condition a licensed health care provider, acting within their 168 lawful scope of practice, determines in the provider’s best medical judgment, to be an emergency 169 as defined in this paragraph. 170 “Patient”, any person who presents at the hospital or who is brought to a hospital by 171 ambulance or specialized emergency medical services vehicle as defined in section 1 of chapter 172 111C. 173 “Stabilizing treatment”, includes abortion when abortion is necessary to resolve the 174 patient’s injury or emergency medical condition. 175 (b) Acute-care hospitals licensed under section 51G, during all operating hours of an 176 emergency department or a satellite emergency facility as defined in section 51½, shall provide 177 hospital emergency services to any patient who applies for the same in case of injury or an 178 emergency medical condition. Acute care hospitals shall furnish hospital emergency services, 179 including, but not limited to, medical screening by qualified medical personnel, to reach with 180 reasonable clinical confidence a determination of whether a patient has an emergency medical 181 condition and to provide necessary stabilizing treatment for patients with an emergency medical 182 condition. Acute care hospitals shall establish and maintain policies and procedures for the 183 provision of hospital emergency services, including for a patient’s refusal to consent, restricting 184 transfers until the patient is stabilized, appropriate transfers of patients, nondiscrimination in 185 providing services to patients, preventing delay in examination or treatment of patients and 186 whistleblower protections. 10 of 17 187 (c) The department may promulgate regulations to implement this section. 188 (d) The attorney general may bring a civil action for injunctive or other equitable relief to 189 enforce this section. In any action brought by the attorney general under this section, the court 190 may also award a civil penalty of not more than $10,000 for each violation. 191 SECTION 12. Said chapter 111 is hereby amended by inserting after section 70H the 192 following section:- 193 Section 70I. (a) For the purposes of this section, the following words shall have the 194 following meanings unless context clearly requires otherwise: 195 “Business”, (i) a business organized for the purpose of maintaining medical information 196 to make an individual’s medical information available to said individual or to a provider of 197 health care at the request of said individual or a provider of health care, for purposes of allowing 198 the individual or the provider to manage the individual’s medical information or for the diagnosis 199 and treatment of the individual; 200 (ii) a business that offers medical recordkeeping, electronic health records or electronic 201 medical record services, including, but not limited to, software or hardware, to consumers that 202 makes an individual’s medical information available to another person or a provider of health 203 care at the request of the individual or a provider of health care, for purposes of allowing the 204 other person or the provider to manage the individual’s medical information or for the diagnosis, 205 treatment or management of a medical condition of the individual; 206 (iii) any business that is licensed by the department of public health or the department of 207 mental health to provide medical, clinical, behavioral or health services; or 11 of 17 208 (iv) a business that offers a digital service to a consumer for the purpose of allowing such 209 consumer to manage the consumer’s reproductive or sexual health information or for the 210 diagnosis, treatment or management of a reproductive or sexual health medical condition of the 211 consumer. 212 “Gender affirming health care services”, as defined in section 11I½ of chapter 12. 213 “Reproductive health care services”, as defined in section 11I½ of chapter 12. 214 (b) A business that electronically stores or maintains medical information related to the 215 provision of reproductive health care services, in vitro fertilization and gender-affirming health 216 care services, including, but not limited to, on an electronic health record system or electronic 217 medical record system, on behalf of a provider of health care, health care insurance plan, 218 pharmaceutical company, pharmacy benefit manager, contractor or employer, shall develop 219 capabilities, policies and procedures to enable and shall enable features that: 220 (i) limit user access privileges to information systems that contain medical information 221 related to reproductive health care services, in vitro fertilization and gender-affirming health care 222 services only to those persons who are authorized in writing by the patient to access such 223 medical information; 224 (ii) prevent the disclosure, access, transfer, transmission or processing of medical 225 information related to reproductive health care services, in vitro fertilization or gender-affirming 226 health care services to persons and entities outside of the commonwealth, absent the express 227 written consent of the patient, independent of any other agreement, that specifically authorizes 228 the disclosure, access, transfer, transmission or processing of such medical information to the 229 named persons or entities outside of the commonwealth; and 12 of 17 230 (iii) automatically disable access by individuals and entities outside the commonwealth to 231 segregated medical information related to reproductive health care services, in vitro fertilization 232 or gender-affirming health care services, absent the express written consent of the patient that 233 specifically authorizes access by named persons or entities outside of this commonwealth to such 234 segregated medical information. 235 (c) The department may promulgate such regulations for licensed providers and entities 236 as may be necessary to implement this section. 237 (d) The department shall create a consent form that meets the requirements of this section 238 and shall require its use by all licensed health care providers in the commonwealth. 239 (e) The attorney general may bring a civil action for injunctive or other equitable relief to 240 enforce this section. In an action brought by the attorney general under this section, the court 241 may also award a civil penalty of not more than $5,000 per violation. 242 SECTION 13. Section 12Q of chapter 112 of the General Laws, as appearing in the 2022 243 Official Edition, is hereby amended by adding the following paragraph:- 244 The commissioner of public health shall not, pursuant to this section, collect, maintain, 245 use, disclose or disseminate disaggregated surveillance data or individually identifiable 246 surveillance data on abortions performed in the commonwealth. The name, home address, 247 personal email address and telephone number of individuals engaged in the provision, facilitation 248 or promotion of reproductive health care services, as defined in section 11I½ of chapter 12, shall 249 not be considered a public record under chapter 66. 13 of 17 250 SECTION 14. Said chapter 112 is hereby further amended by adding after section 12Q 251 the following section:- 252 Section 12Q½. The commissioner of public health shall not collect, maintain or use 253 individually identifiable data on gender-affirming health care services provided in the 254 commonwealth, as defined in section 11I ½ of chapter 12, except as authorized by law, and shall 255 not disclose or disseminate disaggregated data or individually identifiable surveillance data on 256 gender-affirming health care services, as defined in said section 11I ½ of said chapter 12, 257 provided in the commonwealth. The name, home address, personal email address, home 258 telephone number and mobile telephone number of individuals engaged in the provision, 259 facilitation or promotion of gender-affirming health care services, as defined in section 11I½ of 260 chapter 12, shall not be considered a public record under chapter 66. 261 SECTION 15. Section 61 of said chapter 112, as most recently amended by section 2 of 262 chapter 353 of the acts of 2024, is hereby further amended by adding the following 3 263 paragraphs:- 264 Notwithstanding any general or special law to the contrary, no person shall be subject to 265 discipline by a board of registration, including through the revocation, suspension or cancellation 266 of a certificate, registration or license, or a reprimand, censure or monetary fine, for providing or 267 assisting in the provision of reproductive health care services or gender-affirming health care 268 services, as those terms are defined in section 11I½ of chapter 12, or for any judgment, discipline 269 or other sanction arising from such health care services if the services as provided would have 270 been lawful and consistent with the standard of conduct for the designated profession had they 271 occurred entirely in the commonwealth. 14 of 17 272 No board of registration shall make available for public dissemination on an individual’s 273 profile the record of any criminal conviction or charge for a felony or serious misdemeanor, final 274 disciplinary action by a licensing board in another state or a malpractice court judgment, 275 arbitration award or settlement that resulted from providing or assisting in the provision of 276 reproductive health care services or gender-affirming health care services or for any judgment, 277 discipline or other sanction arising from such health care services if the services as provided 278 would have been lawful and consistent with the scope and standards of practice for the 279 designated profession had they occurred entirely in the commonwealth. 280 No board of registration shall take adverse action on an application for registration or 281 licensure based on a criminal or civil action or disciplinary action by a licensing board of another 282 state or a medical malpractice claim in another state that resulted from providing or assisting in 283 the provision of reproductive health care services or gender-affirming health care services that, 284 as provided, would have been lawful and consistent with the standard of conduct for the 285 designated profession had they occurred entirely in the commonwealth. 286 SECTION 16. Section 63 of chapter 147 of the General Laws, as appearing in the 2022 287 Official Edition, is hereby amended by striking out subsection (b) and inserting in place thereof 288 the following 2 subsections:- 289 (b) Notwithstanding any general or special law to the contrary and except as required by 290 federal law, no state or local law enforcement agency or officer or employee or any other person 291 acting on behalf of a state or local law enforcement agency of the commonwealth, while acting 292 under color of law, shall provide information or assistance to a federal law enforcement agency 293 or any other state’s agency, including a law enforcement agency, or any private citizen or quasi- 15 of 17 294 law enforcement agent, or expend or use time, money, facilities, property, equipment, personnel 295 or other resources in relation to an investigation or inquiry into services constituting legally- 296 protected health care activity, as defined in section 11I½ of chapter 12, if such services would be 297 lawful as provided had they occurred entirely in the commonwealth. 298 (c) The attorney general may bring a civil action for injunctive or other equitable relief to 299 enforce this section. 300 SECTION 17. Chapter 175 of the General Laws is hereby amended by inserting after 301 section 193U the following section:- 302 Section 193V. No insurance company offering for sale any policy of insurance shall 303 discriminate against a nonprofit charitable organization, including those corporations qualified 304 under 26 USC section 501(c)(3), or adjust or otherwise calculate such nonprofit charitable 305 organization’s risk classification or premium charges in the provision of any form of liability 306 insurance covering negligence, wrongful acts, errors or omissions of the organization and its 307 respective members, directors and officers, on the basis that: (i) the organization offers 308 reproductive health care services or gender-affirming health care services, as those terms are 309 defined in section 11I½ of chapter 12; (ii) the organization engages in legally-protected health 310 care activity, as defined in said section 11I½ of said chapter 12; or (iii) the organization is or has 311 been be the subject of abusive litigation, as defined in said section 11I½ of said chapter 12. 312 Nothing herein shall prohibit such insurers from establishing reasonable classifications of risks 313 and premium charges based upon the relative risk associated with practice in a particular 314 specialty. 16 of 17 315 SECTION 18. Chapter 209B of the General Laws is hereby amended by adding the 316 following section:- 317 Section 15. (a) A law of a jurisdiction outside the commonwealth that authorizes a child 318 to be removed from the care or custody parent or guardian based on the parent or guardian 319 allowing their child to receive gender-affirming care health care services, as defined in section 320 11I½ of chapter 12, or that bans the provision of gender-affirming health care services shall not 321 provide a basis to alter custody, parenting time or visitation or to make a finding of abuse, 322 neglect or maltreatment in a case pending in a court in the commonwealth, unless conduct under 323 such law would constitute abuse, neglect or maltreatment under the laws of the commonwealth. 324 (b) No court in the commonwealth shall admit or consider a finding of abuse, neglect or 325 maltreatment based on a parent or guardian allowing their child to receive or seek gender- 326 affirming health care services or a finding that a parent or guardian is criminally, civilly or 327 otherwise liable for violating another’s state’s law that bans the provision of gender-affirming 328 health care services, as defined in section 11I ½ of chapter 12, as evidence in any proceeding 329 with respect to that parent or guardian and any of their children, unless such conduct would 330 constitute abuse, neglect or maltreatment under the laws of the commonwealth. 331 SECTION 19. Chapter 221 of the General Laws is hereby amended by inserting after 332 section 40 the following section:- 333 Section 40A. Notwithstanding any general or special law or rule or regulation to the 334 contrary, no attorney licensed in the commonwealth may be removed or otherwise subject to 335 discipline, including through the revocation, suspension or cancellation of the attorney’s license 336 or reprimand, censure or monetary fine, for advising or representing a client or prospective client 17 of 17 337 on or in a matter related to the provision of reproductive health care services or gender-affirming 338 health care services, as those terms are defined in section 11I ½ of chapter 12, if the sole basis 339 for such removal or discipline is that: (i) the client offered, provided or received reproductive 340 health care services or gender-affirming health care services that are unlawful in another state; 341 (ii) another state’s laws creates actual or potential liability for the reproductive health care 342 services or gender-affirming health care services offered, provided or received by the client; or 343 (iii) the attorney is subject to actual or potential liability, or removal or discipline, in another 344 jurisdiction based on the reproductive health care services or gender-affirming health care 345 services offered, provided or received by the client; provided, however, that the attorney’s 346 conduct shall otherwise comply with the laws of the commonwealth and meet the standards set 347 forth in the rules of professional conduct promulgated by the supreme judicial court. 348 SECTION 20. Sections 7 and 8 shall take effect January 1, 2026. 349 SECTION 21. Subsection (b) of section 70I of chapter 111 shall take effect no later than 350 July 1, 2026.