Health Care Law Today is issuing a series of blog posts about the Centers for Medicare and Medicaid Services’ (CMS) proposed rule to revise the Medicare Shared Savings Program (MSSP) Accountable Care Organization (ACO) regulations (the Proposed Rule). This is the fifth post in Health Care Law Today’s series on the Proposed Rule. Click here to read the previous posts.

This post addresses the changes that the rule would make to how CMS assigns beneficiaries to an ACO participating in the MSSP. The Proposed Rule places a renewed emphasis on primary care for beneficiary assignment. Section 1899(c) of the Social Security Act, the statutory basis for the MSSP, requires the Secretary to “determine an appropriate method to assign Medicare fee-for-service beneficiaries to an ACO based on their utilization of primary care services provided by [ACO professionals.]” The Proposed Rule aims to clarify both what constitutes a primary care service, by expanding its scope, and who can provide primary care services for purposes of assignment. In addition, the Proposed Rule clarifies the assignment methodology based on services provided by federally qualified health centers (FQHCs), rural health clinics (“RHCs”), and Electing Teaching Amendment (ETA) hospitals.

Assignment Eligibility

To begin with, CMS proposes basic criteria for a beneficiary to be assigned to an ACO. These new criteria are intended to promote understanding of the assignment methodology. Under the Proposed Rule, a beneficiary would be eligible to be assigned to a participating ACO for a performance or benchmark year, if the beneficiary meets all of the following criteria, for the assignment window:

  1. Has at least one month of Part A and Part B enrollment and does not have any months of Part A only or Part B only enrollment.
  2. Does not have any months of Medicare group health plan (including Medicare Advantage or a PACE plan) enrollment.
  3. Is not assigned to any other Medicare shared savings initiative.
  4. Lives in the US or US territories and possessions.

If a beneficiary meets all of the criteria, a beneficiary is then eligible for assignment to an ACO.

Defining Primary Care Services

Through the Proposed Rule, CMS is looking to expand the scope of primary care services, therefore expanding the scope of beneficiaries who receive primary care services, and more accurately assigning beneficiaries to those ACO providers who provide primary care services. CMS proposes to revise the definition of primary care services by including certain CPT codes associated with transitional care services and critical care management services in the definition of primary care services that should be considered in the beneficiary assignment methodology under the MSSP. Additionally, in order to promote flexibility in the MSSP and to allow the definition of primary care services used in the MSSP to respond more quickly to coding changes, future revisions to the definition of primary care services codes will be done through the annual Physician Fee Schedule rulemaking process.

ACO Professionals Who Can Provide Primary Care Services

CMS also proposes to modify its assignment process by assigning a beneficiary to an ACO in the first step of the current two-step assignment process if the individual receives primary care services by a nurse practitioner, physician assistant, or nurse specialist. By incorporating these advance practice professionals to the assignment process, CMS believes it will be able to strengthen the assignment process and maintain a primary care centric approach to assignment.

CMS also attempts to address concerns of certain specialists who believe they bill for certain evaluation and management services designated as primary care but who do not actually provide primary care services. This affects not only assignment of beneficiaries, but the exclusivity requirements of the MSSP. CMS proposes to identify primary care services more accurately by pairing the CPT codes for primary care services with the specialties of the practitioners that provide them. Specialties excluded are surgical in nature and include, but are not limited to: general surgery, otolaryngology, anesthesiology, ophthalmology, pathology, psychiatry, and urology. CMS explicitly noted that medical specialties, including cardiology, nephrology, and endocrinology are specifically included and primary care codes billed by these specialists will be considered primary care services. CMS proposed amending its exclusivity requirement, indicating that each ACO participant that submits claims for primary care services used to determine the ACO’s assigned population must be exclusive to one MSSP ACO. This way, excluded surgical specialists providing primary care services will not be ACO participants required to be exclusive to one MSSP ACO.

Assignment of Beneficiaries to ACOs that Include FQHCs, RHCs, CAHs, and ETAs

CMS proposes continuing to require FQHCs and RHCs to identify, through an attestation, the physicians that provide direct patient primary care services in their ACO participant FQHCs and RHCs. Previously, the attestation was used both for purposes of determining whether a beneficiary was assignable and also for purposes of assigning a beneficiary. Now, CMS proposes to use this information only for purposes of determining whether or not a beneficiary is assignable. If the beneficiary is assignable, then claims for primary care services furnished by all ACO professionals submitted by the FQHC or RHC would be used to determine whether the beneficiary received a plurality of primary care services from the ACO.

CMS determined that no changes were necessary to the assignment process for services provided by CAHs. Finally, CMS proposes to add ETA hospitals to the list of ACO participants that are eligible to form an ACO to participate in the MSSP. Services provided by ETA hospitals could be considered primary care services for purposes of assignment.

Request for Comments

As it does broadly throughout the Proposed Rule, CMS requests comments on all these changes.