THINC ACO Insights webinar looks at legal implications of ACOs 

Attorneys David Manko and George Choriatis, partners in Rivkin Radler's Health Services Practice Group, presented a webinar entitled "Federal Standards for ACOs: A Legal and Governance Primer," for THINC. They covered a range of topics including legal issues associated with the Medicare Shared Savings Program; governance models and requirements for ACOs; and IRS implications for ACOs. ACO Insights is a series of educational events that explores a new model of care delivery and reimbursement; it is supported by a grant from the New York State Health Foundation. (THINC ACO Insights)

David Manko, a partner in Rivkin Radler, LLP's Health Services group, recently participated in a THINC ACO Insights webinar, "Federal Standards for ACOs: A Legal and Governance Primer" (see above). Here, he shares some observations about the Medicare Shared Savings program and ACOs in general.  

Connector: What three pieces of advice do you have for Hudson Valley providers who are just now starting to think about accountable care in general and the Medicare Shared Savings program in particular?

Manko: First, any group that's interested in engaging in an ACO strategy must have a strong group of primary care providers who are interested and willing to be leaders in the initiative.

Second, you need to have a very strong health IT team in place that has the ability to develop and support an infrastructure that can manage and measure the quality and value of services provided.

Third, the providers within any ACO network need to think about relationships with payers in a new way. Providers and payers needs to take off the white hats and the black hats and think about partnering and developing collaborations based on value-driven initiatives. That's already happening in the Hudson Valley.

Connector: What are some common mistakes you've seen practices make as they move toward accountable care?

Manko: One common mistake is to focus on rate increases and negotiating clout rather than focusing on the value proposition. Focusing on rate negotiations creates the wrong culture. From day one, leadership has to help educate ACO participants that the initiative is about delivering value and quality--not about getting together to negotiate with plans. I've seen a lot of difficulty letting go of silos. Often, I find providers think, "How can this make me more money in my particular silo?" Instead, the question should be, "How can we get together to improve quality and value?" They need to step back and think in terms of being part of a collaborative, where if one does well, all do well.

Another mistake is that some people believe the ACO is a passing trend. It's not. We are seeing a revolution in the U.S. health care delivery system. I initially thought it was going to take five to 10 years; now I think it will take two to five years. A combination of factors contribute to this: the unsustainable growth of health care spending, availability of technology to support a new health care delivery system, progressive federal legislation, state ACO legislation, the bad economy and high unemployment.

Connector: What should provider organizations understand about the Department of Justice/Federal Trade Commission final policy on ACOs?

Manko: The guidance was very helpful. It eliminated the mandatory review requirement, and established an antitrust safety zone for ACOs. The DOJ and FTC agreed to apply "the rule of reason" to their analysis of ACOs if they are clinically and financially integrated and the arrangement among the ACO participants is reasonably related to the Medicare Shared Savings Program.

Providers who are involved in an ACO need to avoid the conduct outlined in the policy as anticompetitive--such as steering arrangements, exclusive contracting and tying arrangements.

The final point is that the DOJ/FTC policy does not apply to state law. Just because you comply with the DOJ/FTC policy doesn't mean you are covered in your state.