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October 20, 2011 at 11:06 AM
The Centers for Medicare & Medicaid Services (CMS) has released an interim final rule that will help doctors and hospitals participate in the new accountable care organization (ACO) tests without violating federal anti-kickback laws.
CMS, an arm of the U.S. Department of Health and Human Services (HHS), has pleased doctors and hospitals but alarmed employers and health insurers by replacing a mandatory ACO antitrust screening provision with a voluntary antitrust screening provision.
NUTS AND BOLTS
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.
The Patient Protection and Affordable Care Act of 2010 (PPACA) requires CMS to try using ACOs and other new approaches to paying doctors and hospitals to get providers to work harder at paying attention to the cost of care, and the ratio of value to cost.
CMS has announced two major ACO pilot projects, and private carriers also have been testing ACOs.
The rules released today affect the Medicare Shared Savings Program (MSSP).
Providers have been slow to sign up for MSSP, in part because of concerns that the original version of the MSSP program unveiled in March seemed complicated.
In addition to requiring a mandatory antitrust review of all new ACOs, officials were going to require that providers be evaluated using 65 separate performance versions.
The MSSP rules released today would reduce the number of performance measures to 33.
The U.S. Department of Justice and the Federal Trade Commission (FTC) have spent decades trying to keep doctors and hospitals from colluding to increase health care prices, and antitrust experts have warned all along that a poorly designed ACO program could give providers a chance to jack up prices.
To address the results of past efforts to keep health care providers from engaging in anticompetitive behavior, the interim final rule released today exempts providers who participate in the MSSP and follow MSSP guidelines from a “physician self-referral” law, which keeps physicians from referring Medicare patients to their own facilities, and a civil monetary penalty law.
The Justice Department and FTC said today that they will continue to watch closely for anticompetitive practices.
The Justice Department and the FTC will continue to enforce antitrust laws vigorously, and they will continue to use antitrust “safety zone” rules, Justice Department officials say.
If two or more health care providers in an ACO provide the same service, those providers must have a combined share of 30% or less for that service in each provider’s market, officials say.
