Advocacy News
November 1, 2011



ACO Final Rule Responsive To AAOS Concerns

Partisanship Remains during Super Committee Negotiations

Bipartisan Congressional Briefing Seeks To Repeal SGR via the Super Committee and Calls for Physician Payment Reform

House Republicans Introduce 10 Bills to Change FDA Processes

Representatives Team Up to Defend Advanced Imaging Services

House Committee Investigation on Contaminated Heparin Intensifies


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ACO Final Rule Responsive To AAOS Concerns

imageThe Centers for Medicare and Medicaid Services (CMS) released its final rule on October 20 setting out parameters for Accountable Care Organizations (ACOs) to be formed under the Medicare Shared Savings Program (MSSP). ACOs are arrangements among healthcare providers designed to reduce healthcare expenses through improved care coordination and higher quality care. The final rule significantly modifies provisions of the proposed rule released March 31, 2011, by easing requirements for ACO participation. The final rule retains two shared savings models as presented in the proposed rule, but modifies the first model to eliminate sharing of downside risk. Under both models, providers that achieve certain quality and cost goals will be eligible for bonuses based on savings.

The final rule offers providers greater flexibility in board and governance structures. It modifies methods for assigning beneficiaries to allow for preliminary prospective assignment followed by retrospective reconciliation, reduces the number of quality measures that ACOs will have to meet to qualify for performance from 65 to 33, and enhances data sharing with participants. The final rule also increases financial incentives to participate, eliminates the requirement for 50% of primary care physicians to be meaningful electronic health record (EHR) users, and establishes an advanced-payment program for small physician-owned and rural hospitals that lack capital to start an ACO. Moreover, under the related policy statement documents, also filed on October 20, mandatory anti-trust review is eliminated, and waivers of physician self-referral law, and the federal anti-kickback statute are enhanced. These substantial rule revisions may make ACO participation more palatable to providers.

A number of the changes CMS made in the final rule are consistent with the AAOS comments on the proposed rule. Earlier this year, the AAOS expressed concern that draft provisions made it difficult for solo practitioners, small groups and small hospitals to participate. The AAOS advocated for relaxing governance requirements, eliminating downside risk sharing from one of the shared savings models, waiving the electronic health record requirements for participation, and reducing the number of quality measures to be reported. The final rule attempts to accommodate these concerns. Moreover, the AAOS was also critical of mandatory antitrust review, which has been eliminated in the final rule. The AAOS remains proactive on this issue and will address outstanding concerns in its comments on the final rule.