This is the third post in Health Care Law Today’s series on the ACO proposed rule. Click here to read the first post and here to read the second post.

Additional Program Requirements and Beneficiary Protections

Under the Medicare Shared Savings Program (“MSSP”) ACO proposed rule, CMS has proposed additional program requirements, beneficiary protections and participation agreement procedures to enhance ACO transparency and improve patients’ ability to make informed health care decisions. Specifically, CMS has proposed additional public reporting obligations that ACOs must fulfill to participate in the MSSP. These reporting requirements include the following:

  • Utilize a CMS-created and specified template to report information uniformly on a MSSP dedicated webpage;
  • Identify key clinical and administrative leaders within the ACO;
  • Identify types of ACO participants or combinations of ACO participants that have joined to form the ACO; and
  • Publicly report ACO performance on all quality measures used to assess the quality of care furnished by the ACO and ACO participants as opposed to only the results of ACO performance on claims-based measures.

As a result of the standardization created through the utilization of a uniform reporting template, CMS will not subject the ACO’s public reporting webpage to marketing review and approval.

CMS has also proposed additional grounds for ACO termination from the MSSP, including the failure to timely comply with requests for documents and other information and the submission of false or fraudulent data. CMS is soliciting comments regarding the implementation of close out procedures when ACO participation agreements are voluntarily terminated prior to expiration or not renewed that specifically seek to address data sharing issues, compliance with quality reporting and record retention issues. These procedures will allow the ACO to receive shared savings for voluntary termination and nonrenewal if:

  1. The effective date of termination is December 31;
  2. By a date specified by CMS, the ACO completes the close out process for the performance year in which the termination becomes effective; and
  3. CMS approves the termination date.

However, if the ACO terminates participation before December 31, it will not receive any shared savings for that last calendar year. ACOs should take advantage of the opportunity to comment on these proposed close out procedures in order to maximize shared savings a voluntarily terminating/non-renewing ACO may be entitled to during the previous year.

Finally, with respect to reconsideration review procedures, CMS previously allowed reconsiderations to be heard orally or on-the-record. With a goal of greater transparency, CMS has now proposed to permit only on-the-record reviews of reconsideration requests.

Establishing and Maintaining the Participation Agreement with the Secretary

To participate in the MSSP, each ACO must enter into a participation agreement with CMS for a term of three years. The proposed rule clarifies and supplements the procedures for applying to participate in the MSSP, including the need to submit a complete application, the content of the application and CMS’ criteria for evaluating such applications. Additionally, CMS proposes to establish procedures for ACOs seeking to renew their participation agreements after the initial three-year term. Under the proposed rule, an ACO could request a renewal of its participation agreement prior to the agreement’s expiration; CMS will publish guidance on how to do so.

The proposed rule also seeks to modify the types of regulatory changes that become effective during the agreement period with which an ACO participating in the MSSP must comply. The proposed rule states that an ACO is subject to all regulatory changes “that become effective during the agreement period with the exception of [certain specified] program areas, unless otherwise required by statute.” Such exceptions include changes to eligibility requirements concerning the structure and governance of ACOs and changes to the calculation of the sharing rate. The November 2011 final rule exempted ACOs from any regulatory changes regarding beneficiary assignment that became effective during an agreement period, but the proposed rule seeks to remove that exception. The proposed revision could require MSSP ACOs to adjust its operations if CMS makes regulatory changes.

Summary

As stated in other posts of this blog series, it is important to submit comments with respect to this proposed rule. Issues addressed in these sections of the proposed rule may affect an ACO’s ability to receive shared savings under the MSSP during termination and nonrenewal, ACO reporting obligations and ACO participation agreements with CMS.