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From Health Law Daily, December 8, 2014

Improvements to the Medicare Shared Savings Program proposed

By Harold M. Bishop, J.D.

Changes to the Medicare Shared Savings Program (MSSP), including provisions relating to the payment of Accountable Care Organizations (ACOs), have been proposed by CMS.  The Proposed rule will revise key policies set forth in CMS’ November 2011 Final rule (76 FR 67802), incorporate certain guidance issued since the MSSP was established, and propose regulatory additions to support program compliance and growth. The Proposed rule is intended to encourage stakeholder participation, reduce administrative burden for ACOs, maintain excellence in program operations, and increase program integrity. The 60-day comment period will close on February 6, 2015 (Proposed rule, 79 FR 72760, December 8, 2014).

Statutory basis. Section 3022 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) amended Title XVIII of the Social Security Act by adding new Section 1899 establishing the MSSP. This program encouraged providers of services and suppliers (e.g., physicians, hospitals and others involved in patient care) to create a new type of health care entity, an ACO. ACOs agree to be held accountable for improving the health and experience of care for individuals and improving the health of populations while reducing the rate of growth in health care spending. If they are successful, they receive a share of the savings achieved. Studies have shown that better care often costs less, because coordinated care helps to ensure that the patient receives the right care at the right time, with the goal of avoiding unnecessary duplication of services and preventing medical errors.

Implementing regulations. On November 2, 2011, CMS published a Final rule entitled “Medicare Program; Medicare Shared Savings Program: Accountable Care Organizations.” At that time, CMS anticipated that subsequent MSSP rulemaking would be informed by experience with the program as well as from the Pioneer ACO Model and other initiatives conducted by the Center for Medicare and Medicaid Innovation under Section 1115A of the Social Security Act.

Interagency cooperation. As the result of interagency effort by CMS, several documents regarding the application of other relevant laws and regulations to ACOs were released. These documents, described in the November 2011 Final rule include: (1) a joint CMS and HHS Office of Inspector General (OIG) Interim Final rule establishing waivers of the application of the physician self-referral law, the federal anti-kickback statute, and certain civil monetary penalties law provisions for specified arrangements involving ACOs participating in the MSSP (76 FR 67992); (2) an Internal Revenue Service (IRS) notice (Notice 2011-20) and fact sheet (FS-2011-11) regarding the need for additional tax guidance for tax-exempt organizations, including tax-exempt hospitals, that may participate in the MSSP; and (3) a final Statement of Antitrust Enforcement Policy Regarding ACOs Participating in the MSSP, issued jointly by the Federal Trade Commission (FTC) and the Department of Justice (DOJ) and published on October 28, 2011 (76 FR 67026).

Current participation. According to CMS, the MSSP now includes more than 330 ACOs and more than 125,000 Medicare enrolled practitioners functioning in 47 states, the District of Columbia, and Puerto Rico. Approximately 4.9 million beneficiaries are assigned to these ACOs. On November 7, 2014, CMS released the first financial reconciliation and quality performance results for the 220 MSSP ACOs with start dates in 2012 and 2013. While CMS is encouraged by the results, it is proposing some adjustments to the MSSP to support its continued success.

Proposed changes. The Proposed rule would codify existing guidance, reduce administrative burden and improve program function and transparency in the following areas: (1) data-sharing; (2) ACO participant agreements, the application process, and CMS’ review of applications; (3) identification and reporting of ACO participants and ACO providers/suppliers; (4) eligibility requirements related to the ACO's number of beneficiaries, required processes, the ACO's legal structure and governing body, and its leadership and management structure; (5) modification to assignment methodology; (6) repayment mechanisms for ACOs in two-sided performance-based risk tracks; (7) alternatives to encourage participation in risk-based models; (8) ACO public reporting and transparency; (9) the ACO termination process; and (10) the reconsideration review process.

To achieve these goals, CMS proposes the following changes to current program rules:

  • Clarify existing terms and establish new definitions of an ACO participant, ACO provider/supplier, and an ACO participation agreement.

  • Add a process for ACOs to renew the participation agreement for an additional agreement period.

  • Add, clarify, and revise the beneficiary assignment algorithm to: (1) update the Current Procedural Terminology (CPT) codes that would be considered to be primary care services as well as changing the treatment of certain physician specialties in the assignment process; (2) include the claims for primary care services furnished by nurse practitioners, physician assistants, and clinical nurse specialists in Step 1 of the assignment algorithm; and (3) clarify how primary care services furnished in federally qualified health centers (FQHCs), rural health clinics (RHCs), and electing teaching amendment (ETA) hospitals will be considered in the assignment process.

  • Expand the kinds of beneficiary-identifiable data that would be provided to ACOs in various reports under the MSSP as well as simplify the claims data sharing opt-out process to improve the timeliness of access to claims data.

  • Add or change policies to encourage greater ACO participation in risk-based models by: (1) offering the opportunity for ACOs to continue participating under a one-sided participation agreement after their first 3-year agreement; (2) reducing risk under Track 2; and (3) adopting an alternative risk-based model referred to as Track 3 which includes proposals for a higher sharing rate and prospective assignment of beneficiaries.

In addition, CMS seeks industry comments on a number of options under consideration to encourage ACOs to take on two-sided performance-based risk under the MSSP. CMS also seeks comments on issues related to resetting the benchmark in a subsequent performance year and the use of statutory waiver authority to improve participation in two-sided risk models.

Applicability. Unless otherwise noted in the final rule, the proposed changes will be effective 60 days after publication of the Final rule. While application or implementation dates may vary, CMS anticipates that all of the final policies and methodological changes will be applicable to the 2016 performance year for all participating organizations.

MainStory: TopStory HealthCareReformNews ACONews CMSNews AntikickbackNews AntitrustNews BillingNews CMPNews PaymentNews QualityNews RuralNews

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