ACO Special Edition of eSource

With the recent publication of final regulations and commentary on Accountable Care Organizations (ACOs), the ABA eSource Editiorial Board in conjunction with the Section's ACO Task Force has decided to publish a Special Edition focused on ACOs.

The following six articles are meant to be a resource to health lawyers, and are provided complimentary to Health Law Section members.

The ACO Task Force, chaired by Matthew Jenkins, Partner, Hunton & Williams LLP, was formed to address the myriad issues that surround the development of accountable care organizations, both in response to the provisions of PPACA and the interest of commercial payors in finding new ways to bend the cost curve.

Membership in the the ACO Task Force is free for Health Law Section members. To join, please click here or contact Simeon Carson, Associate Director, at simeon.carson@americanbar.org.

Final ACO Rules Lower Thresholds and Refine Guidelines: ACOs Are Really Going to Happen, but Will They Work?
By Alan S. Gassman, Gassman, Bates & Associates, P.A., Clearwater, FL; Erica Pless, The Pless Law Firm, P.A., St. Petersburg, FL and Dr. Pariksith Singh, CEO of Access Health Care, LLC, Spring Hill, FL

The new Final Accountable Care Organization (“ACO”) Regulations for the Medicare Shared Savings Program (“Final Regulations”) were released on October 20, 2011 and include many improvements over the Proposed Regulations that were released in March 2011. The Centers for Medicare & Medicaid Services (“CMS”) received over 1,300 comments on the Proposed Regulations from various groups and individuals, and has obviously worked hard to adjust its ACO model to enhance the chance that some ACOs will be viable.

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CMS Addresses Data Sharing and HIPAA Privacy Compliance in the ACO Final Rule
By Clay J. Countryman, Breazeale Sachse & Wilson, LLP,
Baton Rouge, LA

On November 2, 2011, the Centers for Medicare & Medicaid Services (“CMS”) published the final rule (“Final Rule”) for Accountable Care Organizations (“ACO”s) participating in the Medicare Shared Savings Program (“MSSP”) under Section 3022 of the Patient Protection and Affordable Care Act (“PPACA”). In the Final Rule, CMS finalized several requirements under which CMS may share Medicare claims data with ACOs in accordance with the HIPAA Privacy Rule and other laws affecting the sharing of individually identifiable health information.

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Hospital Participation In ACOs and the Impact on Employed Physican Agreements
By Amy K. Fehn, Wachler & Associates, P.C., Royal Oak, MI
and Michael J. Watson, Brown & Connery, LLP, Westmont, NJ

On October 20, 2011 the Centers for Medicare & Medicaid Services (“CMS”) issued the Final Rule for the formation and operation of Accountable Care Organizations (“ACOs”) participating in the Medicare Shared Savings Program (“MSSP”). Under the Final Rule, eligible ACOs could begin participating as early as April 1, 2012. Prior to that date, physicians and hospitals alike should review their existing physician-hospital employment agreements and determine whether the hospital’s participation in an ACO will require amendments to the agreement to reflect changes in the physician’s duties, or whether ACO-related obligations and compensation should be contained in a separate agreement. Some provisions that should be examined include: (a) the term of the agreement; (b) the agreement’s job responsibilities; (c) distribution of shared savings received by the hospital; (d) physician compensation for ACO-related leadership and management responsibilities; and (e) addition of language reflecting the federal Anti-Kickback statute and Stark law waivers.

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Final ACO Rule: Retooled Risk and Reward Model – But is it Still Too Risky?
By Jennifer O. Mitchell, Dinsmore & Shohl LLP, Cincinnati, OH
and Tyler N. Williams, Dinsmore & Shohl LLP, Charleston, WV

On November 2, 2011, the Centers for Medicare & Medicaid Services’ ("CMS") “Medicare Shared Savings Program: Accountable Care Organizations” Final Rule was published, after its release on October 20, 2011. The Final Rule, effective January 1, 2012, implements Section 3022 of the Patient Protection and Affordable Care Act and has been met with mixed reviews from leaders across the healthcare industry. Under the Medicare Shared Savings Program ( “MSSP”), providers who organize as ACOs would continue to receive fee-for-service payments under Parts A and B and be eligible for additional payments if they meet specified quality and savings requirements, but not without risk, at least in the long term.

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Agencies Issue Final Antitrust Guidance for Medicare ACOs
By R. Brent Rawlings, McGuireWoods LLP, Richmond, VA

On October 20, 2011, the same day that The Centers for Medicare & Medicaid Services (“CMS”) issued a final rule for implementation of the Medicare Shared Savings Program (“MSSP”), the Federal Trade Commission (“FTC”) and Department of Justice (“DOJ”) (“Agencies”) issued a Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Saving Program (“Final Statement”). The Final Statement is substantially similar to the proposed statement the Agencies issued on March 31, 2011 (“Proposed Statement”), but there are some key differences that are discussed in this article.

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ACO - Marketing Under Final Regulations
By Robert H. Schwartz, Butzel Long, Bloomfield Hills, MI

Section 1899 of the Patient Protection and Affordable Care Act of 2010 (“PPACA”) is silent with respect to marketing activities of Accountable Care Organizations (“ACO”s). The Proposed Rule, however, released on April 7, 2011, pointed to Section 1899(b)(2)(H) of PPACA regarding the requirement that an ACO demonstrate it meets “patient-centeredness criteria” specifically requiring that marketing materials be submitted to CMS for approval prior to use. The Final Rule released on October 19, 2011 and effective January 3, 2012 relies on the same criteria, but modifies the Proposed Rule in several significant respects, including the elimination of the requirement that CMS approve marketing materials in advance.

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Did you know membership in an interest group is FREE with your Health Law Section membership?

Did you know your membership in the ABA Health Law Section qualifies you for free membership in up to three interest groups of your choice? Interest groups, which are comprised of twelve practices areas within health law, make significant contributions to the Section's programming, publications and legislative initiatives. The interest groups also provide an excellent opportunity for you to interact with and have access to some of the most outstanding lawyers in the legal community. You can enroll on our webpage by clicking here. If you have any questions or need more information, please contact Simeon Carson at simeon.carson@americanbar.org

ACO Task Force

The Task Force is led by Chair Matthew Jenkins, Hunton & Williams LLP, Richmond, VA and Vice-Chairs William Boyd, Baylor Health Care System, Dallas, TX; Bernadette M. Broccolo, McDermott Will & Emery LLP, Chicago, IL and Robert F. Leibenluft, Hogan Lovells, Washington, DC.

If you would like to join the Interest Group, continue by clicking the following link: Health Law Section IG Sign-up Form.

ABA eSource Editorial Board

The ABA Health eSource Editorial Board is led by Chair Adrienne Dresevic, The Health Law Partners, PC, Southfield, MI and editorial board members Claire Castles, Jones Day, Los Angeles, CA; Michael E. Clark, Duane Morris LLP, Houston, TX; Marla Durben Hirsch, Potomac, MD; Conrad Meyer, Chaffe McCall, LLP, New Orleans, LA; Robert T. Rhoad, Crowell & Moring LLP, Washington, DC and Jennifer Tsao, Hernandez Schaedel & Associates LLP, Pasadena, CA.