Summary

On November 17, 2010, the Centers for Medicare & Medicaid Services ("CMS") issued a notice requesting comments regarding certain aspects of the policies and standards that will apply to Accountable Care Organizations ("ACOs") participating in the "shared savings program" of the Affordable Care Act.  These comments must be received no later than 5 p.m. on December 3, 2010.

Background

The Affordable Care Act (the "Act") seeks to improve the quality of health care services and to lower health care costs by encouraging providers to create integrated health care delivery systems, also known as ACOs.  These ACOs will test new reimbursement methods intended to create incentives for health care providers to enhance health care quality and lower costs.

Generally, groups of providers meeting certain specified criteria may work together to manage and coordinate care for Medicare beneficiaries through an ACO.  An ACO may receive payments for shared savings if the ACO meets certain quality performance standards and cost savings requirements established by the Secretary.  CMS is developing rulemaking for the establishment of the Shared Savings Program.

NCQA/CMS Initiatives

The National Committee for Quality Assurance

The National Committee for Quality Assurance ("NCQA") issued Draft ACO Criteria.  These Criteria include both "qualifying" and "monitoring" criteria for ACOs.  The NCQA Criteria has been organized into seven (7) categories that are then arranged into "standards" with individual elements of performance.  To view the NCQA 2011 Draft ACO Criteria please visit its website:  http://www.ncqa.org/tabid/1266/Default.aspx.

CMS

CMS has already conducted substantial outreach, had discussions with and received feedback from a variety of groups representing other physicians, clinicians, hospitals, employers, consumers, and other interested parties, about how ACO programs can best be structured.  In particular, CMS along with the Office of the Inspector General ("OIG"), the Department of Health and Human Services ("HHS"), and the Federal Trade Commission ("FTC") hosted a public workshop on October 5, 2010 to discuss the application and enforcement of the antitrust laws, Stark Laws, Anti-Kickback Statute and Civil Monetary Penalty Law.  At this conference all four (4) agencies indicated they will work together to create regulatory frameworks that would allow for the creation and operation of ACOs.  In particular, the FTC stated it will be looking at creating new safe harbors and perhaps an expedited review process for arrangements that fall outside the scope of those safe harbors.

Current Opportunity to Comment to CMS

For purposes of these comments, CMS is seeking additional information, particularly from the physician community, on the following questions:

• What policies or standards should CMS consider adopting to ensure that groups of solo and small practice providers have the opportunity to actively participate in the Medicare Shared Savings Program and the ACO models?
  
• Many small practices may have limited access to capital or other resources to fund efforts from which "shared savings" could be generated.  What payment models, financing mechanisms or other systems might CMS consider?  In addition to payment models, what other mechanisms could be created to provide access to capital?
  
• The process of attributing beneficiaries to an ACO is important to ensure that expenditures, as well as any savings achieved by the ACO, are appropriately calculated and that quality performance is accurately measured.  Having a seamless attribution process will also help ACOs focus their efforts to deliver better care and promote better health.  Some argue it is necessary to attribute beneficiaries before the start of a performance period, so the ACO can target care coordination strategies to those beneficiaries whose cost and quality information will be used to assess the ACO's performance; others argue the attribution should occur at the end of the performance period to ensure the ACO is held accountable for care provided to beneficiaries who are aligned to it based upon services they receive from the ACO during the performance period.  How should CMS balance these two points of view in developing the patient attribution models for the Medicare Shared Savings Program and ACO models?
  
• How should CMS assess beneficiary and caregiver experience of care as part of its assessment of ACO performance?
  
• The Affordable Care Act requires CMS to develop patient-centeredness criteria for assessment of ACOs participating in the Medicare Shared Savings Program.  What aspects of patient-centeredness are particularly important for CMS to consider and how should we evaluate them?
  
• In order for an ACO to share in savings under the Medicare Shared Savings Program, it must meet a quality performance standard determined by the Secretary.  What quality measures should the Secretary of HHS use to determine performance in the Shared Savings Program?
  
• What additional payment models should CMS consider?  What are the relative advantages and disadvantages of any such alternative payment models? 

If you would like additional information regarding ACOs, please contact your regular Hall Render attorney, or Gregg M. Wallander via email at gwally@hallrender.com, Brian C. Betner via email at bbetner@hallrender.com, or Kendra L. Conover via email at kconover@hallrender.com or by telephone at (317) 633-4884 at the Indianapolis, Indiana office of Hall, Render, Killian, Heath & Lyman, PC.