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www.schwabe.com Accountable Care Organizations Preliminary Look at Proposed Regulations Oregon State Bar Health Law Section Brown Bag Lunch Discussion June 10, 2011 Peter D. Ricoy Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Basis of presentation • CMS published proposed rule in federal register Thursday April 7, 2011. • Focus is on ACO organizational requirements • Not covered: fraud & abuse, antitrust waivers, IRS guidance, Pioneer Model • Final rules to be issued in the future means content in this presentation will be stale in future. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Outline 1. 2. 3. 4. 5. 6. Background of ACO Program ACO Requirements Quality Measures Savings Oregon CCO Concept Discussion Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com General Advice Hypotheticals You are an attorney in private practice approached by each of the following wanting to know: “There was a news article about ACOs. Should I be doing something?” • Physician Group • Hospital • Health Plan • Director of State’s Medicaid Program • Chair of State Workers Benefits Board • Physical Therapy Practice • Self-Funded ERISA Plan Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com General Advice Hypotheticals • Chiropractor • National Dental Practice • Naturopath • OIG Investigator Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com General Advice Hypotheticals You are an attorney in private practice approached by each of the following wanting to know: “Is it a good idea for me to form or join an ACO or CCO?” • Small Group, 3 Physician Primary Care Practice • Specialty 5 Physician Orthopedic Surgeons • Large Multispecialty Physician Clinic 150 physicians, including primary care, dominant in a geographic area Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com General Advice Hypotheticals • Large multispecialty clinic, 150 physicians, no-primary care • Large Single Specialty Group of 50 Radiologists • Large Hospital in Urban Area, many employed physicians • Large Hospital in Urban Area, no/limited employed physicians • Only Hospital in rural county, no employed physicians • Staff-Model HMO-style Health Plan • PPO Health Plan – Network only Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Background: Basis for Shared Savings Program? • Section 3022 of PPACA added section 1899 of Social Security Act to promote accountability for a patient population under Parts A and B; • Program required to be established by January 1, 2012; • On November 10, 2010, CMS published a request for information (RIF) regarding accountable care organizations. Reference: 76 FR 19531 Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Background: Why do we Need ACOs? Current medical system: – – – – Fragmented services across providers; Little coordination of care; Pays for units of service rather than outcomes; and Holds no one organization or individual responsible for either the quality or cost of care. Reference: Congressional Research Service, “Accountable Care Organizations and the Medicare Shared Savings Program”, David Newman, November 4, 2010. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Background: Estimated Impact of ACOs Congressional Budget Office Estimated ACO Program – Reduce Medicare expenditures $4.9 billion over the 6 year period. – After two years, 20% of fee-for-service Medicare beneficiaries would be assigned to participating primary care physicians. – By 2019, 40% would be assigned. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Background: Key Definitions “ACO Professional” Physician Physician Assistant Nurse Practitioner Clinical Nurse Specialist “ACO Participant” ACO Provider (e.g. hospitals & others) “ACO Provider” ACO Supplier (e.g. physicians, & others) Hospital Skilled Nursing facility Home Health Agency Hospice Others Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Background: Who can be an ACO? 5 Categories: 1. ACO professionals in group practices 2. Networks of individual practices of ACO professionals 3. Partnerships or joint venture arrangements between hospitals and ACO professionals 4. Hospitals employing ACO Professionals 5. Other groups or providers and suppliers determined by CMS Reference: SSA Sec. 1899(b) Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Emphasis on Physicians “The emphasis is on physicians rather than insurers or hospitals since physicians ‘control (directly or indirectly) 87% of all personal health spending.’” - CRS Report Reference: Congressional Research Service, “Accountable Care Organizations and the Medicare Shared Savings Program”, David Newman, November 4, 2010. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com What is an ACO? • Legal entity • Comprised of eligible “ACO Participants” • Manage and Coordinate Care for Medicare feefor-service beneficiaries • Establish mechanism for shared governance Reference: Proposed 42 CFR 425.4 Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Provider Payments Continue as Usual Payments continue to be made to providers of services and suppliers participating in an ACO under original Medicare FFS program under Parts A and B in the same manner they would otherwise be made, except that a participating ACO is eligible for shared savings payment. Reference: Section 1899(d)(a)(A) of SSA; 76 FR 19532, 19602, Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Assignment of Beneficiaries ‘‘(c) ASSIGNMENT OF MEDICARE FEE-FOR-SERVICE BENEFICIARIES TO ACOS.—The Secretary shall determine an appropriate method to assign Medicare fee-for-service beneficiaries to an ACO based on their utilization of primary care services provided under this title by an ACO professional described in subsection (h)(1)(A). Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Retrospective Beneficiary Assignment • Beneficiaries are assigned to an ACO based on their utilization of primary care services by a ACO-affiliated primary care physician • CMS will add up the total allowed charges for primary care services for each beneficiary for each ACO, and assign a beneficiary based on where beneficiary received a “plurality” of services. • Neither primary care providers nor specialists know whether a particular patient at treatment point is in ACO or not. Reference: Proposed 42 CFR 425.6. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com How does an ACO qualify for a Shared Savings payment? 3 Key Requirements Maintain ACO eligibility requirements Meet quality performance standards Exceed minimum savings rate Reference: Proposed 42 CFR 425.5(2) Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Legal Entity Requirements • State law recognized legal entity • Perform key functions: – receiving and distributing shared savings – repaying losses – meeting reporting requirements – ensuring ACO participants comply requirements • Unique TIN • Not necessarily enrolled in Medicare; not necessarily licensed to practice medicine or provide clinical services Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Governance ACO’s governing body: • Must have adequate authority to execute ACO functions • Must accept responsibility for administrative, fiduciary, and clinical operations. • Must be comprised of: – ACO participants or representatives – Medicare beneficiary representatives Reference: Proposed 42 CFR 425.5(8) Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Governance (Continued) • At least 75% control of the ACO’s governing body must be held by ACO participants. – Comment: Leaves open possibility that 25% could be in control of health plan or management company. • Each ACO participant must choose appropriate representative and have “appropriate proportionate control” over governing body decision making. • Governing body must be separate and unique to ACO in cases where the ACO comprised multiple otherwise independent entities Reference: Proposed 42 CFR 425.5(8) Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Can Existing Boards Qualify? “If the ACO is comprised of a single entity that is financially and clinically integrated, and if at least 75 percent control of the entity’s governing body is comprised of representatives of the entity, the ACO governing body may be the same as the governing body of that entity, provided it satisfies the other requirements of this section” Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Leadership • Must be managed by executive whose appointment and removal are under control of governing body. • Must have leadership team that has “demonstrated ability to influence or direct clinical practice to improve efficiency processes and outcomes”. • Must have full-time senior medical director who is board-certified physician and on location. Reference: Proposed 42 CFR 425.5(9) Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com ACO Qualification Requirements • Clinical Integration. Must have a “meaningful commitment” to the ACO’s clinical integration program to ensure likely success. – ACO participants have a meaningful financial or “human” investment in the ACO to motivate appropriate behaviors • Quality Assurance. Physician-directed quality assurance and process improvement committee must oversee program that established internal performance standards for quality, cost, and outcomes. • Evidence-Based Medicine. Must implement program to promote evidence-based medical practice or clinical guidelines. • Marketing Guidelines. All ACO marketing communications get approved prior to us. Reference: Proposed 42 CFR 425.5(9), (4) Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com ACO Qualifications (Continued…) • Participant Agreement. Participants must agree to comply with guidelines and process, and ACO must have ability to expel those not meeting requirements. • Infrastructure & IT. Must be able to collect and evaluate data and provide report cards to participants. • Compliance Plan. Must have a designated compliance official (not legal counsel). Comply with False Claims Act, anti-kickback statute, physician self-referal law, civil monetary pentalies law. • Sufficient Number of Beneficiaries and Providers. ACO must have an assigned population of 5,000 or more beneficiaries and a sufficient number of primary care physicians to support that population. Reference: Proposed 42 CFR 425.5(9), (10) Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com ACO Qualifications Continued …. • Proof of Patient-Centered Focus. ACO must provide documentation of plans to: – Promote evidence-based medicine – Promote beneficiary engagement – Internally report quality and cost – Coordinate care – Conduct CAHPS survey – Promote patient involvement in governance – Implement process for evaluating population health needs Reference: Proposed 42 CFR 425.5(15) Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com ACO Qualifications (Continued…) • Proof of Patient-Centered Focus. ACO must provide documentation of plans to: – Communicating clinical knowledge in “a way that is understandable to them” (plain English? Plain Spanish?) – Process for beneficiary engagement and shared decision-making that takes into account the beneficiaries’ “unique needs, preferences, values and priorities.” – Standards in place for beneficiary access and communication – Processes for measuring clinical or service perforance by physicians and using these results to improve care and service over time. Reference: Proposed 42 CFR 425.5(15) Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com ACO Qualifications Continued …. • Distribution of Savings. A description of how it plans to distribute savings, achieve specific goals, and achieve better care, better health, and lower costs. • Three-Year Agreement. Can elect for “Track 1”, onesided model for savings, or “Track 2” for two-sided. • Reinsurance. ACO must obtain reinsurance, place funds in escrow, surety bonds, or line of credit to ensure repayment of losses under “Track 2” Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Quality Measures • CMS selects the measures designated to determine an ACO’s success in promoting: – better care for individuals – better health for populations – lower growth in expenditures • CMS selects the quality performance standards • ACOs must submit data on the measures according to method established by CMS. Reference: Proposed 42 CFR 425.9. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Quality Measures 1. Patient/caregiver experience (7 measures) 2. Care coordination (16 measures) 3. Patient safety (2 measures) 4. Preventative health (9 measures) 5. At-risk population/frail elderly health (31 measures) Reference: Proposed 42 CFR 425.10 and 76 FR 19571-19591. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Quality Measures Patient / Caregiver Examples – – – – How well doctors communicate Helpful, courteous, respectful staff Getting timely care, appointments and information Patients’ rating of doctor Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Quality Measures Care Coordination Examples – – – – – Hospital readmission rate within 30 days of discharge Hospital discharge rate -- diabetes complications Hospital discharge rate – congestive heart failure % of physicians meeting HITECH “Meaningful Use” % of PCPs who are electronic prescribers Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Quality Measures Patient Safety Examples – – – – – Foreign object retained after surgery Falls and trauma Accidental puncture or laceration Blood Incompatibility Poor Glycemic Control Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Quality Measures Preventive Health Examples – – – – – Influenza Immunization Pneumococcal Vaccination Mammography Screening Cholesterol Management Blood Pressure Measurement Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Quality Measures At Risk Population Examples – Diabetes: Aspirin Use, Tobacco Non-Use, Foot Exam – Heart Failure: Weight Measurement, Beta-Blockers – Coronary Artery Disease: Oral antiplatelet therapy, cholesterol, ACE Inhibitor – Hypertension: Blood Pressue & Plan of Care – Frail Elderly: Osteoporosis management, INR testing Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Calculating Quality • CMS Defines: – Minimum attainment level – Performance benchmark • Each 5 domains is equally weighted • All measures within a domain must have a score above minimum attainment for the domain to be scored • If ACO satisfied the quality performance standards for one or more domains and savings, ACO may receive a proportion of shared savings. • CMS retains audit rights Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Savings • Track 1 – One-sided risk during first two years – Two-sided risk during third year – Two-sided risk thereafter • Track 2 – Two-sided risk from start and going forward Reference: Proposed 42 CFR 425.10 and 76 FR 19571-19591. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Savings Establishing Expenditure Baseline. – CMS identifies beneficiaries that would have been assigned to the ACO in most recent 3-year period. – Adjust for health status using “CMS-Hierarchical Condition Categories”. – Truncate per capita expenditures at 99th percentile to eliminate large claim variations. – Expenditures would be indexed using Medicare growth rates based on national spending growth levels (not local). – Adjustments for “minimum savings rates” to reduce random fluxuations based on the size of the ACO – 6-Month runout period Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Savings (Continued) • One-Sided Risk: – ACO receives up to 50% of Savings – Cap of 7.5% • Two-Sided Risk: – ACO receives up to 60% of Savings – Cap of 10% Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com ACO vs HMO Key Differences • Patient’s Perspective: No Gatekeeper: Can still go to any Provider inside or outside of network. • Provider’s Perspective: No Capitated Payments: payments based on quality and savings Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Oregon’s Coordinated Care Organizations* * Based on Proposed Legislation, HB 3650 Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Oregon “Coordinated Care Organizations” – Big Picture • CCOs are a legislative concept passed by Oregon Special Joint Legislative Committee (HB 3650). • Intent is to creates a new and integrated health care delivery system for the Oregon Health Plan • Replace current system of managed care orgainizations • Federal waiver to address “dual eligibles” (Medicare / Medicaid). • Coordinates / integrates care among physical health, mental health, chemical dependency and dental health providers. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Oregon CCOs – Big Picture • “Global Budget” for each CCO. • Significant rulemaking required; in the interim, the authority “shall renew” the contracts of prepaid managed care health services organizations • In any area of the state where CCO not certified, OHA continues to contract with managed care organization • OHA may amend current contracts to allow prepaid managed care health services organizations that meet the criteria to become CCOs. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com CCO Organizational Requirements Oregon Health Authority to adopt by rule criteria for CCO. • CCO may be a single corporate structure or a network of providers organized through contractual relationships. • CCO must either be: (1) community-based organization; or (2) statewide organization with community-based participation in governance; or (3) any combination of the two. • “Community” means groups within geographic area served by CCO & includes groups by age, ethnicity, race, economic status or other characteristic that may impact health care delivery Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com CCO Organizational Requirements Governance Structure Must Include: 1. Consumers of CCO Services; 2. Persons that Share in the Financial Risk of the CCO; 3. Major “Components” of health care delivery system; and 4. Community at large. CCO must convene a community advisory council, including community and county government representatives to “ensure” health care needs are being met Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com CCO Global Budget • Each CCO will have a fixed, global budget -- a total amount established prospectively by OHA to deliver care to all CCO members; • OHA to develop global budgeting process; • Legislative Fiscal Office not quantify fiscal impact yet; news reports of savings in the second year of around $500 million in total funds; • OHA to adopt a rule with safeguards to protect against underutilization & service denials • Members and providers may appeal denials under contested case hearings Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com CCO Payment Mechanisms OHA to “Encourage” CCO reimbursement (within the CCO system) methodologies: 1. Reimburse on outcomes and quality; 2. Hold providers responsible for efficiency; 3. Reward good performance; 4. Limit medical cost inflation; 5. Promote prevention, person-centered care such as use of primary care homes; 6. No reimbursement of never events; 7. Transitional provisions for rural hospitals. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Network Issues • Members required to use CCO if available • Members have a choice of providers within network • Should Include providers of specialty care • A “health care entity” may not unreasonably refuse to contract with an organization seeking to form CCO if participation necessary to qualify as CCO • A health care entity that unreasonably refuses to contract with a CCO may not receive fee-for-service reimbursement from the authority for health services that are available through CCO • Providers may participate in multiple CCOs Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com CCO Quality Measures • OHA to develop outcome and quality measures • Must include ambulatory care, inpatient care, chemical dependency and mental health treatment, oral health care and other services • Must include demographic variables including race and ethnicity • Incorporate measures into contracts to “hold the organizations accountable for performance and customer satisfaction” • Information must be published, including quality measures, costs, outcomes, and other information necessary to evaluate value of CCO Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com List of Qualifications & Aspirations • Members have relationship with a stable team of providers responsible for comprehensive care provided; • Supportive and therapeutic needs of each member are addressed in a holistic fashion using patient centered primary care homes and individualized care plans; • Transitional care when entering and leaving an acute care or long term care facility; • Members receive navigational assistance through certified health care interpreters, community health workers, and personal health navigators; Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com List of Qualifications & Aspirations • Services geographically located as close to where members reside as possible; • CCO uses health information technology to link services and providers across the continuum of care; • CCO prioritized working with members who have high health care needs, multiple chronic conditions, mental illness or chemical dependency; Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com List of Qualifications & Aspirations • Providers work together to develop best practices for care and service to reduce waste and improve the health and well-being of members; • Educated about the “integrated approach” • Emphasize prevention, healthy lifestyle choices, evidence-based practices, shared decision-making • Each member must be encouraged to be an “active partner” in directing the member’s health care and services; • Members family should receive timely, complete and accurate information to participate in care and to have family knowledge, values, and cultural backgrounds respected Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com List of Qualifications & Aspirations • Members must have access to competent advocates and assistance that is “culturally appropriate” • Must implement patient centered primary care homes & require providers to communicate and coordinate using electronic health information technology Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Other • Antitrust: Intent to use State Action Doctrine to provide immunity from federal anti-trust laws; • Study defensive medicine and make recommendations regarding caps on medical liability damages Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Discussion ….. Please Share Your Ideas! Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Perspectives….(Big Picture) Kathleen Sebelius “The Affordable Care Act is putting patients and their doctors in control of their health care,” said HHS Secretary Kathleen Sebelius. “For too long, it has been too difficult for health care providers to work together to coordinate and improve the care their patients receive. That has real consequences: patients have gaps in their care, receive duplicative care, or are at increased risk of suffering from medical mistakes. Accountable Care Organizations will improve coordination and communication among doctors and hospitals, improve the quality of the care their patients receive, and help lower costs.” Reference: http://www.hhs.gov/news/press/2011pres/03/20110331a.html Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Perspectives….(Big Picture) Michael F. Cannon, Director of Health Policy Studies at the Cato Institute “Medicare's idea of encouragement is this: If doctors and hospitals invest substantial resources to form an ACO, and better care coordination reduces the amount they bill Medicare, then the ACO will get to keep part of the savings. "Here's a flash for the policy wonks pushing ACOs," writes industry expert Robert Laszewski. "They only work if the provider gets paid less for the same patient population. Why would they be dumb enough to voluntarily accept that outcome?“” Reference: Michael F. Cannon, “ACO Debacle Exposes Obamacare's Fatal Conceit (Guest Opinion)”, Kaiser Health News, June 3, 2011. http://www.kaiserhealthnews.org/Columns/2011/June/060311cannon.aspx Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Will Private Industry Follow CMS’ lead? • Hospital DRG reimbursement started out as a CMS payment policy. • Physician PPS started out as CMS payment policy. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Several National Health Plans Have Announced Commercial ACOs …..… Cigna Aetna Humana United Healthcare Anthem Blue Cross Blue Shield … Will Oregon Health Plans Follow? Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Perspectives…..(Risk Models) American Medical Association: “The AMA urges CMS to provide a payment option that includes shared savings only (“one-sided risk”) without the mandatory shared loss provision. We believe an option allowing ACOs to receive shared savings, without the down-side risk, will encourage participation by a greater variety of physician practices.” Reference: AMA letter to Donald Berwick, June 3, 2011. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Perspectives ….(Complexity) American Medical Group Association: Without dramatic changes to the proposed rule, it is our considered opinion that ACOs will be unsuccessful from inception and that the best opportunity for health care delivery reform in decades, and its potential for attendant improvements in care for millions of Americans, may be lost…. Determining attractiveness of ACO participation is a function of the sum of all of the requirements and conditions of participation measured against the likelihood of financial benefit, assessed in the context of meshing program and institutional goals. CMS has created a design specification encompassing onerously complex application and participation requirements coupled with unbalanced risk/reward criteria, that disadvantages ACO entities. Reference: AMGA letter to Donald Berwick, June 6, 2011. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Perspectives…..OR & WA Oregon Association of Hospitals and Health Systems: “Our key concern is that the proposed rules places handicaps on low cost states like Oregon that have a track record of providing care to Medicare beneficiaries at costs lower than the national average. This proposed rule sets a lower expenditure benchmark for low-cost regions like ours which will limit the achievable shared savings and increase the risk of exceeding the benchmark. We propose a methodology which would be equitable to states like Oregon and would not penalize them for historically keeping Medicare costs down. We suggest that CMS develop a “low-cost state reward multiplier.” Reference: OAHHS letter to Donald Berwick, June 3, 2011. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Perspectives … OR & WA Washington State Hospital Association We are concerned that many providers in Washington State have already taken significant steps to reduce cost and unnecessary services. Many providers in our state have lower utilization rates, when adjusted for acuity, than their counterparts in other areas of the country. These more efficient, less costly providers should not be disadvantaged when calculating shared savings payments. It is potentially more difficult for providers with lower overall costs per beneficiary to achieve significant savings in upcoming time periods. CMS should create a shared savings model that also incentivizes more efficient, less costly providers to become an ACO. If the shared savings model does not take lower baseline spending into consideration, more efficient providers may not participate Reference: WSHA letter to Donald Berwick, December 3, 2010. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Perspectives…(Assignment) American Medical Association: “The AMA urges CMS to adopt a more flexible approach to beneficiary assignment to an ACO….We urge that instead of retrospective attribution, CMS should adopt a prospective approach that allows patients to volunteer to be part of the ACO and permits the ACOs to know upfront those beneficiaries for whom the ACO will be responsible.” Reference: AMA letter to Donald Berwick, June 3, 2011. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Perspectives …(Assignment) American Medical Association Consequently, CMS should seek to maximize the extent to which an ACO is held accountable only for those patients who voluntarily choose its physicians to provide or manage their care, and who are willing to allow the ACO to access data about the patients’ services. It should also seek to minimize or eliminate the use of statistical attribution methodologies, particularly retrospective attribution, after care has already been delivered. At a minimum, CMS should create one payment option that allows beneficiaries to elect participation in an ACO and makes ACO-related payments based only on the beneficiaries who make that election. Reference: AMA letter to Donald Berwick, June 3, 2011. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Perspectives ……(Governance) America’s Health Insurance Plans: “The proposed rule limits the role that health plans and other nonprovider stakeholders can play in the formation and governance of ACOs. We question the practicality of CMS prescribing such an arbitrary governance standard. CMS’ focus should be ensuring that an ACOhas a demonstrated ability to treat individuals, improve population health, and create programs and perform outreach to reduce unnecessary care. To that end, ACOs should have the maximum amount of flexibility to create governing bodies that best meet their individual needs and help them achieve the intended goals of the MSSP, and should not be subject to a “one-size fits-all approach to governance which would prohibit the establishment of potentially effective alternatives.” Reference: AHIP letter to Donald Berwick, June 6, 2011. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Perspectives …(Governance) American Medical Group Association Drop the requirement to have beneficiaries on the governing body, as this is unduly intrusive into the operations and organization of a private business, is impossible for many under state law, and a heavy burden for most. Reference: AMGA letter to Donald Berwick, June 6, 2011. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Perspectives ……(Cost Shifting) America’s Health Insurance Plans “ACOs could have an incentive, and through the aggregation of market power an enhanced ability, to obtain shared savings payments by reducing Medicare expenditures to achieve “savings” under the MSSP and compensate for the reduced expenditures by charging higher rates and possibly reducing quality of care in the private market. This is not the intent of the ACA or the MSSP. Thus, the MSSP should require reporting by ACOs to determine whether such cost shifting is occurring, and any MSSP participants that engage in cost shifting should be terminated from the MSSP, or at a minimum, have their shared savings payments reduced by the amount of the cost shift.” Reference: AHIP letter to Donald Berwick, June 6, 2011. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com General Advice Hypotheticals You are an attorney in private practice approached by each of the following wanting to know: “There was a news article about ACOs. Should I be doing something?” • Physician Group • Hospital • Health Plan • Director of State’s Medicaid Program • Chair of State Workers Benefits Board • Physical Therapy Practice • Self-Funded ERISA Plan Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com General Advice Hypotheticals • Chiropractor • National Dental Practice • Naturopath • OIG Investigator Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com General Advice Hypotheticals You are an attorney in private practice approached by each of the following wanting to know: “Is it a good idea for me to form or join an ACO or CCO?” • Small Group, 3 Physician Primary Care Practice • Specialty 5 Physician Orthopedic Surgeons • Large Multispecialty Physician Clinic 150 physicians, including primary care, dominant in a geographic area Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com General Advice Hypotheticals • Large multispecialty clinic, 150 physicians, no-primary care • Large Single Specialty Group of 50 Radiologists • Large Hospital in Urban Area, many employed physicians • Large Hospital in Urban Area, no/limited employed physicians • Only Hospital in rural county, no employed physicians • Staff-Model HMO-style Health Plan • PPO Health Plan – Network only Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA www.schwabe.com Questions / Discussion Peter D. Ricoy Schwabe, Williamson, & Wyatt, PC 1211 SW 5th, Suite 1900 Portland, OR 97204 Email: [email protected] Phone: 503-796-2973. Bend, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA