On October 17, the Centers for Medicare & Medicaid Services (CMS) published in the Federal Register an extension of the interim final rule on fraud and abuse waivers for accountable care organizations (ACOs) participating in the Medicare Shared Savings Program (MSSP). The rule was originally issued on November 2, 2011, and it will now be extended until November 2, 2015.

The rule established waivers to protect ACOs and their participating healthcare providers from liability under the Stark Law, the Medicare/Medicaid Anti-Kickback Statute, and other federal laws that were widely seen as potential barriers to ACO development. The waivers do not apply to Pioneer ACOs or to other “coordinated care” programs created under the Affordable Care Act.  

The five waivers are:

  • A pre-participation waiver for ACOs that are preparing an application to participate in the MSSP, which allows the ACO’s potential participants to provide items and services to one another in ways that might otherwise be prohibited;
  • A participation waiver, which protects financial arrangements among an ACO’s participants while the ACO has a shared savings contract with CMS and for up to six months afterward;
  • A distribution waiver, which permits distributions of shared savings among the ACO’s participants during and after termination of its shared savings contract;
  • A Stark Law waiver, which protects Stark-compliant financial arrangements from liability under the Anti-Kickback Statute and the civil monetary penalties law; and
  • A patient incentives waiver, which permits ACOs to provide Medicare beneficiaries with items or services free or below fair market value under certain conditions.