On October 5, 2010 the Federal Trade Commission (FTC) co-hosted a “Workshop Regarding Accountable Care Organizations and Implications Regarding Antitrust, Physican Self-Referral, Anti-Kickback and Civil Monetary Penalty Laws.” The Centers for Medicare & Medicaid Services (CMS) and the Department of Health and Human Services’ Office of Inspector General joined the FTC in addressing several issues associated with Accountable Care Organizations (ACOs) newly authorized by the Affordable Care Act (ACA).
Don Berwick, Administrator of the Centers for Medicare and Medicaid Services, began the workshop by outlining his triple aim for health care: better care for individuals, better health for populations and reduced per-capita costs. He also committed the government to interpreting applicable statutes “wisely, so as not to impede the development of ACOs.” (from HealthBlawg) FTC Chairman Jon Leibowitz and the Department of Health and Human Services’ Inspector General Dan Levinson echoed Berwick’s commitment.
Why is this important? As we blogged last month, health care providers are eager to enter into new, more efficient care models but are concerned by several legal barriers to clinical integration and the implementation of ACOs. Legal barriers include: antitrust laws, the Stark Law, the Civil Monetary Penalty Law, the anti-kickback law and the Internal Revenue Code.
Another reason for widespread interest is that Section 3022 of the ACA authorizes health care providers to establish ACOs in order to participate in a Medicare Shared Savings Program (Title XVIII, Section 1899). According to “Preliminary Questions & Answers” guidance promulgated by the CMS Office of Legislation:
The Affordable Care Act (ACA) improves the health care delivery system through incentives to enhance quality, improve beneficiary outcomes and increase value of care. One of these key delivery system reforms is the encouragement of Accountable Care Organizations (ACOs). ACOs facilitate coordination and cooperation among providers to improve the quality of care for Medicare beneficiaries and reduce unnecessary costs.
The statute requires health care organizations to meet certain requirements in order to qualify as an ACO:
1) Have a formal legal structure to receive and distribute shared savings
2) Have a sufficient number of primary care professionals for the number of assigned beneficiaries (to be 5,000 at a minimum)
3) Agree to participate in the program for not less than a 3-year period
4) Have sufficient information regarding participating ACO health care professionals as the Secretary determines necessary to support beneficiary assignment and for the determination of payments for shared savings.
5) Have a leadership and management structure that includes clinical and administrative systems
6) Have defined processes to (a) promote evidenced-based medicine, (b) report the necessary data to evaluate quality and cost measures (this could incorporate requirements of other programs, such as the Physician Quality Reporting Initiative (PQRI), Electronic Prescribing (eRx), and Electronic Health Records (EHR), and (c) coordinate care
7) Demonstrate it meets patient-centeredness criteria, as determined by the Secretary.
The statute also specifies who may form an ACO:
1) Physicians and other professionals in group practices
2) Physicians and other professionals in networks of practices
3) Partnerships or joint venture arrangements between hospitals and physicians/professionals
4) Hospitals employing physicians/professionals
5) Other forms that the Secretary of Health and Human Services may determine appropriate.
Medicare Shared Savings Programs are slated to “begin by January 1, 2012. Agreements will begin for performance periods, to be at least three years, on or after that date.” Additionally, “[f]urther details for the shared savings program will be provided in a Notice of Proposed Rulemaking which CMS expects to publish this fall.”
The workshop agenda may be viewed here.
Interestingly, HealthBlawg tweeted a live transcript of the workshop here.
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