Legal roadmap to accountable care

Elizabeth Hogue
private practice healthcare attorney

Section 302 of the Affordable Care Act (ACA) includes provisions related to Medicare payments to providers of services and suppliers that participate in Accountable Care Organizations (ACOs). Providers of services and suppliers who participate in ACOs will continue to receive payments under Parts A and B of the Medicare program, but will also be eligible for additional payments if they meet certain requirements related to quality of care and cost savings. The Secretary of the U.S. Department of Health and Human Services has published final regulations establishing ACOs as early as April of 2012.

The final regulations generally provide as follows: The ultimate goal of ACOs is to reward better value, outcomes, and innovations instead of just volume.

The purposes of ACOs are to:

  • Promote accountability for a patient population;
  • Coordinate items and services under Parts A and B of the Medicare Program; and
  • Encourage investment in infrastructure and redesigned care processes for high quality and efficient service delivery.

Groups of providers of services and suppliers that meet criteria specified by the secretary may work together to manage and coordinate care for Medicare fee-for-service (FFS) beneficiaries through ACOs. ACOs that meet quality performance standards established by the secretary will be eligible to receive payments for “shared savings.”

Patients who are assigned or “aligned” with physicians who participate in ACOs are not required to receive services from such physicians or from any other participants in ACOs. Patients who are aligned with physicians in ACOs still have the right to freedom of choice of all types of providers. CMS emphasizes this fact in commentary to the final regulations governing ACOs as follows:

“It is important to note that the term ‘assignment’ for purposes of this provision in no way implies any limits, restrictions, or diminishment of the rights of Medicare FFS beneficiaries to exercise complete freedom of choice in the physicians and other health care practitioners and suppliers from whom they receive their services. Thus, while the statute refers to the assignment of beneficiaries to an ACO, we would characterize the process more as an ‘alignment’ of beneficiaries with an ACO, that is, the exercise of free choice by beneficiaries in the physicians and other health care providers and suppliers from whom they receive their services is a presupposition of the Shared Saving Program.”

The following types of providers are eligible to participate in ACOs:

  • ACO professionals, i.e. physicians in group practice arrangements
  • Networks of individual practices of ACO professionals
  • Partnerships or joints venture arrangements between hospitals and ACO professionals
  • Hospitals employing ACO professionals
  • Such other groups of providers of services and suppliers as the secretary determines appropriate (emphasis added)

According to the commentary to the final regulations, ACO participants are defined as any Medicare-enrolled provider or supplier, including pharmacists.

Eligible groups of providers of services and suppliers must meet the following requirements to participate in ACOs:

  • Must be willing to become accountable for the quality, cost, and overall care of at least 5,000 Medicare FFS beneficiaries assigned to it.
  • Must enter into agreements with the secretary to participate in the program for at least three years.
  • Must have formal legal structures that allow receipt and distribution of payments for shared savings to participating providers of services and suppliers.
  • Must include primary care ACO professionals i.e. physicians and advance practitioners that are sufficient for the number of Medicare beneficiaries assigned to the ACO and ACOs must provide the secretary with information about participating ACO professionals.
  • Must put clinical and administrative systems in place and define processes to promote evidence-based medicine and patient engagement, to report on quality and cost measures, and to coordinate care.
  • Must demonstrate to the secretary that they meet criteria related to “patient-centeredness,” such as the use of patient and caregiver assessments and individualized care plans.

Reports related to quality must address care transitions across healthcare settings, including post-hospital discharge planning and follow-up by ACO professionals.
ACOs may also be responsible for excess expenditures.

At this point, ACOs seem to involve great opportunities as well as great risks. hme

Elizabeth E. Hogue, Esq., is a private practice healthcare attorney in Burtonville, Md. Reach her at 877-871-4062.