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From Health Law Daily, December 21, 2018

Medicare Shared Savings Program gets overhaul; CMS finalizes ‘Pathways to Success’

By Bryant Storm, J.D.

New policies and participation options under the Medicare Shared Savings Program will increase savings and reduce losses for the Medicare trust fund, reduce gaming opportunities, and promote regulatory flexibility, according to an advance release of a final rule, released December 21, 2018. The revisions to the MSSP program include new program tracks, beneficiary protections and alternate benchmarking methodology. The rule is scheduled to be published in the Federal Register on December 31, 2018 and will become effective 45 days after publication.

MSSP and track models. Accountable care organizations (ACOs), created under the Patient Protection and Affordable Care Act’s (ACA’s) (P.L. 111-148) MSSP, are groups of providers of services and suppliers that work together and are jointly responsible for the cost and quality of care provided to Medicare fee-for-service (FFS) beneficiaries. Currently, ACOs may choose to participate in various payment models under the program ranging from the Track 1 one-sided model (meaning it only shares in savings) to the Track 2 two-sided model (sharing in both savings and losses) to Track 3 two-sided model (with a higher potential for savings). The current participation agreement period is limited to three-year terms, with participants limited to a maximum of two periods in a respective model, after which time they must switch to a different track should they choose to continue participation in the MSSP. (See Are ACOs ‘truly here to stay’ or ‘a passing fad’?, May 4, 2017, for discussion on the performance of ACO participants).

Proposal and PFS. On August 17, 2018, CMS proposed a redesign of the MSSP. The proposal included plans to eliminate the current track system in favor of two-sided models which share in both savings and losses (see ACO participants: You want to play, put some skin in the game, August 17, 2018). CMS finalized some of the more time sensitive provisions of the proposed rule in the 2019 Physician Fee Schedule (PFS) final rule. The PFS final rule finalized provisions extending expiring participation agreements for existing ACOs, and reducing the core quality measure set. It also changes beneficiary assignment definitions, and allows prospective ACO assignment for beneficiaries who voluntarily align to certain types of providers if the clinician is aligned with that ACO. Lastly, it addresses relief for ACOs and ACO clinicians impacted by extreme and uncontrollable circumstances (see PFS regs update MIPS scoring & MSSP for 2019, plan E/M changes for 2021, (Nov. 28, 2018).

New tracks. CMS is now finalizing its remaining proposals that were not finalized under the November PFS final rule. The new MSSP, which CMS is calling "Pathways to Success" will include two new tracks—BASIC and ENHANCED—while discontinuing Tracks 1 and 2 as well as the deferred renewal option. Under the new program, ACOs will enter into agreements to participate in one of these two tracks for not less than five years.

  • The BASIC track will allow ACOs to begin under a one-sided model, which will incrementally add higher levels of risk that, at the highest level, would qualify as an Advanced Alternative Payment Model (APM) under the Quality Payment Program. The BASIC track’s "glide path" will include five levels of risk and reward.
  • Under the ENHANCED track, which is based on the current Track 3, ACOs will take on a higher level of risk, with a higher potential reward level. Ultimately, all ACOs are expected to transition to the ENHANCED track. High revenue ACOs with experience in performance-based CMS initiatives, are restricted to participation in the ENHANCED track.

The final rule includes changes from the proposal, which will allow ACOs on the BASIC track to reach a higher potential level of reward—as high as 40 percent for the one-sided models (Levels A and B) and as high as 50 percent for each of the two-sided models (Levels, C, D, and E). CMS also finalized a limited exception which will allow high revenue ACOs that transitioned to the Track 1+ Model within their current agreement period the option to renew for one agreement period under Level E of the BASIC track, despite their experience.

Benchmarking. CMS is also redesigning the way it benchmarks ACO performance by incorporating differing amounts of ACO historical experience and regional performance depending on the ACO’s agreement period. The new benchmarking will rely on regional FFS expenditures from an ACO’s first agreement period, rather than later periods, as under the current method.

Beneficiaries. The final rule also takes steps to protect and benefit beneficiaries under the new program. Certain ACOs will be permitted to establish beneficiary incentive programs to encourage patient engagement—consisting of incentive payments up to $20 for each qualifying primary care service the beneficiary receives. The final rule bolsters ACO notice requirements for beneficiaries, including obligations to notify beneficiaries regarding an ACO’s participation in the MSSP, primary clinician designation options, and the opportunity to decline the sharing of claims data.

Applications. Under the new program, CMS is offering an application cycle for a one-time new agreement period start date of July 1, 2019. New and existing ACOs who wish to participate under the new BASIC or ENHANCED tracks must complete the non-binding Notice of Intent to Apply (NOIA), which will be available from January 2, 2019, through January 18, 2019.

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