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From Health Law Daily, June 9, 2015

MSSP changes encourage ACOs to take on greater performance-based risk

By Harold M. Bishop, J.D.

CMS issued a Final rule designed to encourage stakeholder participation in the Medicare Shared Savings Program (MSSP), reduce the administrative burden for participating accountable care organizations (ACOs), facilitate efforts to improve health care outcomes, and maintain excellence in program operations (Final rule, 80 FR 32692, June 9, 2015).

Program background. The Medicare Shared Savings Program (MSSP) was established by section 3022 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) and is a key component of the Medicare delivery system reforms included in the ACA. The MSSP facilitates coordination and cooperation among providers to improve the quality of care for Medicare fee-for-service (FFS) beneficiaries and reduce unnecessary costs.

Eligible providers, hospitals, and suppliers may participate in the MSSP by creating or participating in an ACO. The MSSP rewards ACOs that lower their growth in health care costs while meeting performance standards on quality of care and putting patients first.

Program success. According to CMS, the MSSP now includes more than 400 ACOs and more than 170,000 Medicare-enrolled practitioners. The MSSP ACOs function in 49 states, D.C., and Puerto Rico, with more than 7.3 million beneficiaries receiving care through 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. These results indicated MSSP ACOs starting in 2012 and 2013 improved the quality of care for beneficiaries in 30 of 33 quality measures.

Regulatory actions. In November 2011, CMS published a Final rule to implement the MSSP (76 FR 67802, November 2, 2011). In December 2014, it published a Proposed rule to further advance the MSSP program (79 FR 72760, December 8, 2015) (see Improvements to the Medicare Shared Savings Program proposed, December 2, 2014). This current Final rule finalizes the December 2014 Proposed rule by codifying existing guidance, reducing administrative burden, and improving program function and transparency in the following areas:

  • data-sharing;

  • eligibility and other requirements related to ACO participants and ACO providers/suppliers;

  • clarifications and updates to application requirements;

  • the beneficiary assignment methodology;

  • the methodology for determining ACO financial performance; and

  • issues related to program integrity and transparency, such as public reporting, terminations, and reconsideration review.

To achieve these goals, CMS made the following modifications to its current MSSP rules.

Current guidance. CMS has clarified and codified current guidance related to ACO participant agreements and issues related to the ACO participant and ACO provider/supplier lists. For example, it has finalized rules for modifying the ACO participant list and requirements related to specific language that must appear in the ACO participant agreements.

Participation agreements. CMS has added a process for an ACO to renew its three-year participation agreement. Specifically, CMS has set forth rules for renewing the three-year agreement, including factors that it will use to determine whether an ACO may renew its agreement, such as the ACO’s history of compliance with program rules.

Beneficiary assignment. CMS has added, clarified, and revised the beneficiary assignment algorithm as follows:

  • It has updated the Current Procedural Terminology (CPT) codes that will be considered to be primary care services.

  • It has modified the treatment of claims submitted by certain physician specialties, nurse practitioners (NPs), physician assistants (PAs), and clinical nurse specialists (CNSs) in the assignment algorithm. Specifically, this CMS policy will use primary care services furnished by primary care physicians, NPs, PAs, and CNSs under step 1 of the assignment process, after having identified beneficiaries who received at least one primary care service by a physician in the ACO. Additionally, it would exclude certain services provided by certain physician specialties from step 2 of the assignment process.

  • It has clarified how primary care services furnished in federally qualified health centers (FQHCs) and rural health clinics (RHCs) are considered in the assignment process.

Data sharing requirements. CMS has expanded the kinds of beneficiary-identifiable data that will be made available to ACOs in various reports under the MSSP and has simplified the process for beneficiaries to decline claims data sharing.

Risk-based model participation. CMS has added and changed policies to encourage greater ACO participation in risk-based models:

  • Track 1. CMS is offering the opportunity for ACOs to continue participating under a one-sided participation agreement (Track 1) after their first three-year agreement. Under this policy, CMS will permit ACOs to participate in an additional agreement period under one-sided risk with the same sharing rate (50 percent) as was available to them under the first agreement period.

  • Track 2. CMS is modifying the existing two-sided performance-based risk track (Track 2). Specifically, under Track 2, an ACO will have the choice of several symmetrical minimum savings rate (MSR)/minimum loss rate (MLR) options that will apply for the duration of its three-year agreement period.

  • Track 3. CMS is also offering an alternative performance-based risk model referred to as Track 3. Under this policy, ACOs will be able to participate under a two-sided risk model that would incorporate a higher sharing rate (75 percent), prospective assignment of beneficiaries, and the opportunity to apply for a programmatic waiver of the three-day skilled nursing facility (SNF) rule in order to permit payment for otherwise-covered SNF services when a prospectively assigned beneficiary is admitted to a SNF without a prior three-day inpatient stay. ACOs in this track will also have the choice of several symmetrical MSR/MLR options that will apply for the duration of their three-year agreement period.

Encouraging two-sided performance-based risk. In order to encourage ACOs to take on two-sided performance-based risk under the MSSP, CMS will: (1) reset the benchmark in a second or subsequent agreement period by integrating previous financial performance and equally weighting benchmarks for subsequent agreement periods; and (2) use its programmatic waiver authority to improve participation in Track 3 by offering regulatory relief from requirements related to the SNF three-day stay rule.

Effective date. Most of the provisions of this Final rule are effective on August 3, 2015. The amendments to the regulations governing notification to beneficiaries of participation in the MSSP (42 C.F.R. sec. 425.312) and a beneficiary’s right to decline claims data sharing (42 C.F.R. sec. 425.708) are both effective November 1, 2015. The amendment to the regulation governing beneficiary-identifiable claims data (42 C.F.R. sec. 425.704) is effective January 1, 2016.

Future plans. In future rulemaking, CMS plans to address other modifications to MSSP rules to improve ACO willingness to take on performance-based risk, including: (1) modifying the assignment methodology to hold ACOs accountable for beneficiaries that have designated ACO practitioners as being responsible for their care; (2) waiving the geographic requirement for use of telehealth services; and (3) modifying the methodology for resetting benchmarks by incorporating regional trends and costs.

MainStory: TopStory FinalRules ACONews CMSNews CoPNews HealthReformNews PaymentNews ProgramIntegrityNews RuralNews QualityNews

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