Medical Malpractice Coverage Protections for Providers of Reproductive and Gender‑Affirming Care
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Directive to commercial medical malpractice insurers in Massachusetts describing nondiscrimination and related definitions for coverage of providers who deliver reproductive or gender-affirming health care; applies to insurers offering medical malpractice coverage in the Commonwealth.
Section 23 of Chapter 127 of the Acts of 2022 amends M.G.L. c.175, §193U to prohibit medical malpractice insurers from discriminating against providers or adjusting risk classification or premiums because a provider offers reproductive or gender-affirming health care services that are unlawful in another state, because another state's laws create potential liability, or because abusive litigation resulted in a judgment against the provider when the services would be lawful in Massachusetts.
Definitions for 'health care provider', 'gender-affirming health care services', 'abusive litigation', 'legally-protected health care activity', and 'reproductive health care services' are included in the amendments and highlighted by the Division.
Coverage Nondiscrimination Requirements
Coverage nondiscrimination criteria
Insurers must not use the following bases to discriminate against or adjust premiums or risk classifications for providers of reproductive or gender-affirming health care services that are lawful in Massachusetts:
ALL of the following
Prohibited bases (ANY):
- Discrimination or premium/risk adjustments based on the fact that another state's laws make those services unlawful
Statutory prohibition: no insurer shall discriminate or adjust a provider's risk classification or premium charges on this basis.
- Discrimination or premium/risk adjustments based on another state's laws creating potential or actual liability for those services
Statutory prohibition: includes consideration of another state's laws creating potential or actual liability for services lawful in Massachusetts.
- Discrimination or premium/risk adjustments based on abusive litigation or judgments from litigation in another state where the services would be lawful and consistent with good medical practice in Massachusetts
Statutory prohibition: abusive litigation defined to include actions filed in other states based on conduct occurring in Massachusetts or attempts to enforce resulting orders or judgments.
- Protections apply when services are lawful in Massachusetts and provided consistent with good medical practice and professional standards
- Legally-protected health care activity excludes services rendered below applicable professional standards of care or that would violate Massachusetts anti-discrimination laws
- A service provided by a person duly licensed and physically present in Massachusetts is legally protected if permitted under Massachusetts law regardless of the patient's location
Protections Related to Out-of-State Laws and Litigation
Do not penalize providers for out-of-state legality or abusive litigation
Insurers are prohibited from discriminating against a provider or adjusting a provider's risk classification or premium charges because the provider offers reproductive or gender-affirming health care services that are unlawful in another state, because another state's laws create potential or actual liability for those services, or because abusive litigation in another state resulted in a judgment against the provider — when the services would be lawful and consistent with good medical practice if provided entirely in Massachusetts. Providers should expect that insurers may not base underwriting, premium, or risk decisions on out-of-state legality or judgments arising from abusive litigation as defined in the statute.
- Applies when services would be lawful and consistent with good medical practice if they occurred entirely in the Commonwealth.
- Includes prohibitions based on: (i) services unlawful in another state; (ii) another state's laws creating potential or actual liability; and (iii) judgments from abusive litigation in another state.
Key Definitions
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