ABA Health eSource August 2011 Volume 7 ACO Special Edition
ABA Health eSource - Your link to the ABA's Health Law Section
August 2011 Special Edition
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ACO Special Edition of eSource

With the recent publication of the proposed 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 series of Special Editions focused on ACOs. This is the third special edition of eSource.

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. The Task Force recently filed Comments on ACO Regulations Proposed by CMS.

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.


Industry Comments Show Some Consensus in Provider Opposition to Key Components of CMS’s Proposal for the Medicare Shared Savings Program
By R. Brent Rawlings, McGuireWoods LLP, Richmond, VA
and Scott P. Downing, McGuireWoods LLP, Chicago, IL

A number of influential trade associations representing key stakeholders in the debate over accountable care have submitted comments to The Centers for Medicare & Medicaid Services (CMS) in response to its April 7, 2011, notice of proposed rulemaking regarding implementation of the Medicare Shared Savings Program (MSSP) for Accountable Care Organizations (ACOs). This article provides a review and comparison of the letters submitted by three such associations representing healthcare providers: the Medical Group Management Association (MGMA), the American Hospital Association (AHA), and the American Medical Association (AMA), in an effort to gauge industry reaction to some of the more significant features of CMS’s proposed rule.

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Exclusivity: Antitrust Concerns for ACOs
By Rashi Mittal, Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, Washington, DC

The Centers for Medicare & Medicaid Services (CMS) proposed Medicare Shared Savings Program (MSSP) regulations and the Federal Trade Commission (FTC) and Department of Justice Antitrust Division (DOJ) guidance recognize the competitive concerns associated with the formation of Accountable Care Organizations (ACOs). The concept of exclusivity receives special attention in these documents. Exclusivity is generally a policy or practice of joint venture participants to restrict competition among themselves to ensure the success of the joint venture. In the ACO regulations and guidance, certain ACO participants (e.g., physicians, physician groups) are required to be exclusive to one ACO—i.e., to participate in only one ACO—while others are required to be non-exclusive. Because exclusivity may reduce the availability of healthcare provider options for consumers, it may have huge antitrust implications. This article provides a brief overview and discussion of the FTC, DOJ and CMS requirements related to exclusive arrangements for the ACO participants.

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ACO - Marketing
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 regards to marketing activities of Accountable Care Organizations. The proposed regulations, however, released on April 7, 2011, point to Section 1899(b)(2)(H) of PPACA regarding the requirement that an ACO demonstrate it meets “patient-centeredness criteria.” Using the “patient-centeredness criteria” as a foundation, the proposed regulations address the marketing issue. The proposed regulations recite that not only must the ACO provide care coordination, but to be “truly patient centered” the ACO must not engage in activities that would prevent a beneficiary from using the full range of benefits of the Medicare Fee for Service program. Misleading or confusing communications would “not be patient centered” as they would restrict the beneficiary or caregiver about other choices and limit the ability of beneficiaries to be involved in their own care.

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ACO Special Edition of eSource


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 ACO Task Force 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.

The Task Force is led by Chair Matthew Jenkins, Hunton & Williams LLP, Richmond, VA and Vice-Chairs Wm. Stephen 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 Lisa Genecov, Locke Lord Bissell and Liddell LLP, Dallas, TX and editorial board members Michael E. Clark, Duane Morris LLP, Houston, TX; Adrienne Dresevic, The Health Law Partners, PC, Southfield, MI; Marla Durben Hirsch, Potomac, MD; Conrad Meyer, Chaffe McCall, LLP, New Orleans, LA and Jennifer Tsao, Hernandez Schaedel & Associates LLP, Pasadena, CA.


Do you want to communicate your ideas to thousands of other members? To contribute a newsletter article on a health law topic, send us your ideas to simeon.carson@americanbar.org.
The opinions expressed are those of the authors and shall not be construed to represent the policies or positions of the ABA or the ABA Health Law Section.
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