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HEALTH LAW UPDATE
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Recent Speaking Engagements

 

October 27, 2011
 
Matt Fisher and Bob Lombardi presented, "Strategic Planning for Physician Groups"  to the National CPA Health Care Advisors Association

 

October 24, 2011
Matt Fisher and Bob Lombardi presented, "Primer on Federal Fraud and Abuse Laws for Physicians" to the Massachusetts Medical Society

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November 9, 2011

Ever since the passage of the Affordable Care Act in March 2010, there has been much talk in the medical and legal communities about the Act's Medicare Shared Savings Program, a "new" health care delivery model that is popularly known as the accountable care organization (ACO).  ACOs are designed to bring together providers on all levels of the care spectrum, including physicians and hospitals, in order to increase coordination and efficiency in the delivery of healthcare by providers to patients.

 

The Affordable Care Act left to the Centers for Medicare and Medicaid Services (CMS) the difficult job of figuring out how an ACO was to be structured, how it would operate, and how it would realize the health care savings envisioned by the Affordable Care Act.  CMS initially released proposed regulations governing ACOs in March 2011.  The proposed regulations were widely criticized by providers and others connected to the healthcare industry.  On November 2, 2011, CMS issue the final ACO regulation, which had been greatly modified from the proposed regulation to reflect the concerns raised in the more than 1,000 comments that CMS received on the proposed regulations.

 

The following are key highlights from the final regulation:

 

  • An ACO can be comprised of any combination of healthcare providers or professionals along with primary care physicians including physician specialists, physician assistants, nurse practitioners, clinical nurse specialists, single or multi-specialty group practices, networks of such providers or professionals, hospitals, federally qualified health centers and other healthcare service providers.  In order to qualify as an ACO, an organization needs to serve at least 5,000 dedicated primary care patients, which minimum size helps to ensure sufficient patient groupings to attract a necessary scope of providers.
  • The final regulation makes antitrust review by the Federal Trade Commission and Department of Justice voluntary prior to acceptance by CMS of an application to form an ACO.  This provision reverses the proposed rule and eases the pre-application burden on ACO applicants.
  • Providers, particularly in an ACO, will receive preliminary assignments of patients that will be updated quarterly based upon the most current data available.  Final assignment of patients will occur after the end of each performance year based upon the prior year's information.  This changes the proposed rule, which only assigned patients at the end of the year and left providers unaware of which patients the ACO would be evaluated on.
  • The governing board of an ACO does not need to be proportional across members.  Thus, the board may reflect relative strength of one group, and certain members may contribute more than other members.
  • CMS removed the requirement that 50% of an ACO's primary care physicians be meaningful users of electronic health records by the second performance year.  However, this requirement was transferred into one of the quality measures by which ACOs will be judged, meaning the measure was only shifted, not eliminated.
  • The final regulation reduced to 33 from 65 the number of quality measures by which ACOs will be reviewed in determining whether care has been provided with a higher quality and more efficiently.  The evaluation ties to continued approval and receipt of benefits.

Despite the changes in the final regulations, it still remains to be seen whether ACOs will actually be a viable care delivery model.  However, the basic goals of ACOs in increasing coordination of care and promoting higher quality of care are goals that will likely remain in place whether or not the particular model contained in the ACO regulations succeeds or fails.

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This client alert is intended to inform you of developments in the law and to provide information of general interest.   It is not intended to constitute legal advice regarding a client's specific legal issues and should not be relied upon as such.  This client alert may be considered advertising under the rules of the Massachusetts Supreme Judicial Court.