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March 31, 2011 at 08:00 PM
The Centers for Medicare and Medicaid Services (CMS) is asking for comments about the kinds of waivers health care providers might need to participate in Medicare accountable care organization (ACO) programs and private health plan networks without violating federal fraud and abuse laws.
An ACO is supposed to be a vehicle for paying teams of health care providers to provide and manage care for whole patients, instead of paying for care one service at a time.
Section 3022 of the Patient Protection and Affordable Care Act (PPACA) requires 
Medicare to set up a Medicare Shared Savings Program that will promote use of Medicare ACOs starting in 2012.
Many private health insurers, including private health insurers that offer Medicare Advantage plans, have already been experimenting with ACOs, either in the commercial market or in connection with state or federal health program pilot programs.
Medicare Advantage plans can continue to offer ACOs, but the new Medicare Shared Savings Program is only for individuals enrolled in the traditional Medicare Part A and Medicare Part B programs, CMS officials say in a preamble to a temporary version of the ACO proposed rule.
The proposed rule and an ACO notice are supposed to appear in the Federal Register April 7.
CMS, an arm of the U.S. Department of Health and Human Services (HHS), administers strict laws and regulations governing the kinds of incentives that can be offered Medicare providers and enrollees, and the kinds of restrictions that can be placed on Medicare providers and enrollees.
In the ACO proposed rule, officials give rules that could permit Medicare providers and vendors to continue to receive traditional Medicare fee-for-service (FFS) payments and also get additional payments based on meeting specified quality and savings requirements.
CMS officials note that some health care providers will get Medicare ACO payments and also get payments under private health carrier contracts.
“We are interested in comments addressing whether a waiver is necessary to address distributions of shared savings payments received by the ACO from a private payer,” CMS officials say. “Some stakeholders have expressed concern that payments under private payer contracts might implicate the fraud and abuse laws where the payments flow between parties that also have referral relationships with respect to federal health care program patients.”
CMS also is asking for comments about any provisions that might be needed to allow or
