Accountable Care Organizations
- CMS Provides Final Framework for ACO and Shared Savings Program Rules: ACO Participants Get Greater Flexibility
- CMS Bundled Payment Initiative: An ACO Alternative
- CMS Tries to Breathe Life Back into ACO Program Through Three New ACO Initiatives
- CMS Proposal Provides Framework for ACO and Shared Savings Program Rules
- Webinar - Beyond the Cover Story Part 2: The Final ACO Regulations - November 9, 2011
- Webinar - Beyond the Cover Story: A Focused Overview of the Key Provisions of the ACO Regulations
Regulations and Guidance
- Final ACO Regulations [PDF]
- Fraud and Abuse Interim Final Rule [PDF]
- Final Antitrust Policy Statement [PDF]
- IRS Notice 2011-20 [PDF]
- Final Shared Savings Program HHS Announcement
- ACO Final Rule Comparison Chart [PDF]
- HHS ACO Fact Sheet
Ober|Kaler's Comprehensive Team Approach to Integration of Care and Shared Savings under the Patient Protection and Affordable Care Act
The Affordable Care Act (ACA), signed into law on March 23, 2010, created accountable care organizations (ACOs) in Medicare Shared Savings Program and the CMS Innovation Center. The ACO program promotes accountability of providers to patient populations and coordination of services under Medicare and encourages investment in infrastructure and design care process for high-quality, efficient service delivery.
The era of the fee-for-service productivity model is likely coming to an end. A new era with incentives for efficient and high-quality outcomes will take its place. Providers must position themselves in the market to meet these changes. Only those who address the full gambit of legal, financial and operational issues will succeed, not only in improving the outcomes of their patients, but also in maintaining and growing their market share.
Hospitals and physicians currently collaborate through a variety of methods: employment, committees, co-management, medical director arrangements and joint ventures. Physicians, hospitals and other health care providers and supplies are often eagerly coming to the table to determine how best to partner in this new age of health care. Primary care physicians in conjunction with specialist will be at the forefront of providing care coordination, navigation, education and medical homes for patients and populations. The use of nurse practitioners and physician assistants will likely increase, as the need for providers to coordinate care of patients will be critical to the success of ACOs. The Ober|Kaler ACO Team can review the potential ACO structures and determine the best model for each ACO based on the particular relationship among the providers and other entities seeking to form and operate an ACO.
Skill learned in the ACO program are now being transferred to state programs, the commercial marketing and third party payors, as well as to CMS Innovation Center programs and grants, such as bundled payments. Ober|Kaler formed an interdisciplinary team of experienced health attorneys to provide comprehensive advice on the wide-reaching issues facing health care providers looking to navigate the ACO framework and attempt to integrate often separate facilities, infrastructure and ancillary services into the new ACO structure. These members can assist with strategic planning as providers wrestle with new opportunities to participate in incentive and the commercial market programs and position themselves in their own market. Many of these issues are described below.
Ober|Kaler's ABCs of ACOs
ACO development and operation can raise significant legal issues under the antitrust laws, specially when entering into the commercial market. ACOs will require integration and consolidation among competing providers as they contract with payors, raising possible price-fixing, market power, merger and market exclusion issues. Ober|Kaler is the only law firm in the country to obtain favorable FTC Staff Advisory Opinions on behalf of clinically integrated physician networks.
Fraud and Abuse
In the interim final waiver rule published by CMS and OIG, CMS and OIG provided five broad waivers to encourage the development and operation of ACOs while ensuring protection of Medicare patients and program funds. The waivers cover the Stark Law, Antikickback Statute, the civil money penalty prohibition against payments from hospitals to physicians to reduce or limit care (commonly referred to as the “gainsharing” law) and the CMP for beneficiary inducements. The Ober|Kaler ACO Team is well versed in these waivers and can assist in compliance with the waiver requirements as well as those entities working both in and out of the ACO program.
Governance and Corporate Structure
The Ober|Kaler ACO Team includes attorneys with extensive experience in corporate transactions and physician and provider contracting. Their experience includes not only matters relevant to the formation of the appropriate legal entity, but also the transactional and business aspects of physician and provider contracting. The ACO Team understands the breadth of potential models for ACOs and alternative models to assist in determining the best structure for each provider. Regardless of the structure, ACOs must establish shared governance to meet the requirement of true care integration and evidenced-based medicine.
Information Technology, EHRs and HIPAA
An ACO’s level of investment in electronic health records will determine its success and its ability to capture and share information for care coordination, quality and revenue cycle purposes. This reliance on electronic medical information gives rise to a host of privacy and information technology challenges. In the future, data driven dashboards will address quality issues at the point of care, care will be provided through virtual visits with physicians, and patients will access their records through patient portals. The sharing of patient information will need to comply with privacy requirements, including opt-out provisions.
Long Term Care
A key part of ACO operations is the effective discharge of patients from an acute care setting and initiatives to reduce readmissions. The Ober|Kaler ACO Team includes long term care attorneys with an in-depth understanding of the operations of rehabilitation facilities, skilled nursing facilities and other residential long-term care settings as well as home health agencies and home- and community-based services. The ACO Team understands the interaction among such long-term care entities and acute care hospitals and community physicians.
Credentialing and Performance Improvement
ACOs will need to address the credentialing process and accountability of the governing body to the providers admitted into and sharing incentives as part of the ACO. ACO must determine consequences for under-performers in an ACO by establishing credentialing and qualification standards, performance improvement activities and remedial measures. The Ober|Kaler ACO Team can assist with shared credentialing issues, among other issues that may arise when ACOs work with employed and community physicians.
Quality, Efficiency and Evidenced-Based Medicine
The three aims of the ACA are: (1) better care for patients, (2) better care for populations and (3) lower expenditure of costs. Care coordination, quality and efficiency of health care as well as health outcomes are the basis for incentives for providers to improve quality and to find new ways to change patient outcomes based on evidenced-based protocols. ACOs must be structured to monitor quality matrix and measurements and effectively address concerns as they arise. Public quality report cards now are a part of hospitals’ everyday operations. Under the ACO program, the focus again will be on indicators and transparency. Freedom of choice is a key theme in ACOs and programs adopted by the CMS Innovation Center. ACOs must improve the health of their patients and often adapt their own quality standards beyond those required by the ACO program. The Ober|Kaler ACO Team includes attorneys who are well-versed in advising providers and other health care entities on quality initiatives.
Reimbursement and Managed Care Contracting
ACOs must understand the shared savings model as well as other payment models permitted by the ACO regulations. To receive a shared savings payment in a given year, an ACO’s estimated average per capita Medicare expenditures must fall below a benchmark and by a specified percentage. On the commercial market and likely in public programs is the opportunity to take on risk especially related to specific patient popuations. The Ober|Kaler ACO Team can assist ACOs in analyzing and assessing the different shared savings options as assist in establishing financial incentives and capitated models that meet legal requirements and operational and clinical goals.
Ober|Kaler’s ACO Team includes attorneys formerly with the Internal Revenue Service and attorneys who worked in-house for tax-exempt health care entities. The ACO Team understands the formation and operation of tax-exempt entities and the requirements for obtaining and maintaining tax-exempt status. The ACO Team provides advice to ACOs in determining the best structure between for-profit and tax-exempt entities, with a particular focus on the impact such relationships might have on tax-exempt status. As with most transactions between for-profit and tax-exempt providers and other entities, ACOs must be structured in a way to avoid challenges to their tax-exempt status.
|William E. Berlin||202.326.5011||202.336.5211|
|Kristin Cilento Carter||410.347.7309||443.263.7509|
|Robert D. Clark||202.326.5039||202.336.5239|
|Leslie Demaree Goldsmith||410.347.7333||443.263.7533|
|S. Craig Holden||410.347.7322||443.263.7522|
|Julie E. Kass||410.347.7314||443.263.7514|
|John J. Miles||202.326.5008||202.336.5208|
|Steven R. Smith||202.326.5006||202.336.5206|
|Sarah E. Swank||202.326.5003||202.336.5203|
|Sanford V. Teplitzky||410.347.7364||443.263.7564|
|James B. Wieland||410.347.7397||443.263.7597|