ACO Proposed Rule Review: Part 4

Agreement Requirement

1.    If the ACO is approved for participation, CMS proposes that an authorized representative—specifically, an executive who has the ability to bind the ACO must certify to the best of his or her knowledge, information, and belief that the ACO participants agree to the requirements set forth in the 3-year agreement between the ACO and CMS—sign a 3-year participation agreement and submit the signed agreement to CMS

2.    The participation agreement would include an acknowledgment that the ACO agrees to comply with all of the requirements for participation in the Shared Savings Program (SSP) and that all contracts or arrangements between or among the ACO, ACO participants, ACO providers/suppliers, and other entities furnishing services related to ACO activities must require compliance with the ACO’s obligations under the 3-year agreement. The participation agreement would be signed by an authorized representative of the ACO after its has been approved for participation.  The ACO would be responsible for providing a copy of the agreement to its ACO participants and ACO providers/suppliers.

3.    If an ACO decides that it needs to terminate the participation agreement, CMS is proposing 60 days advance written notice of its intention to terminate.

4.    ***The ACO will be subject to a 25% withhold of shared savings in order to offset an future losses under the 2-sided model.  If the ACO completes its 3-year agreement successfully, CMS will refund in full any portion of shared savings withheld during the course of the 3-year agreement period that is not needed to offset losses; and in the event an ACO’s 3-year agreement is terminated before the completion of the 3 years, CMS will retain any portion of shared savings withheld.***

5.    (CMS requests comments on whether a 3 year period is sufficient or if a longer agreement period should be considered initially, and on the proposed requirements above including any additional measures or means to achieve the desired effect.)

6.    (CMS also solicits comment  on requirements that ACOs, ACO participations and ACO providers/suppliers be subject to the requirements of the agreement between the ACO and CMS and that all certifications submitted on behalf of the ACO in connection with the SSP application, agreement, shared savings distribution extend to all parties with obligations to which the particular certification applies.)


Distribution of Savings

1.    Distribution of savings will be made by CMS directly to the ACO TIN.  A payment withhold is thought to be necessary because overpayments allegedly could not be recouped because there would be no regular payments to offset since an ACO is a non-Medicare enrolled entity.  (CMS would like comments on payments directly to a non Medicare enrolled ACO TIN).

2.    As part of the application, ACOs would have to provide a description of the criteria they plan to employ for distributing share savings among ACO participants and ACO providers/suppliers, and how any shared savings will be used to  promote accountability for their Medicare population and the coordination of their care as well as how they might be invested in infrastructure and redesigned care processes for high quality and efficient health care service delivery. 

 Sufficient Number of Primary Care Providers and Beneficiaries

1.    An ACO would be determined to have a sufficient number of primary care ACO professionals (MD/DOs) in general practice, internal medicine, family practice, and geriatric medicine) to serve the number of Medicare beneficiaries assigned to it if the number of beneficiaries historically assigned over the 3-year benchmark period using the ACO participant TINs exceeds the 5,000 threshold for each year.  (CMS is requesting comment on this proposal and asks for any additional thoughts on what could be considered for meeting these requirements.)

2.    If the number of assigned beneficiaries falls below 5,000 during the course of the agreement period, a warning would be issued and the ACO would be placed on a corrective action plan. The ACO would remain eligible for shared savings for the performance year for which the warning was issued.  If the ACO fails to meet the eligibility criterion of having more than 5,000 beneficiaries by the completion of the next performance year (which gives the ACO over one year to obtain additional beneficiaries), the ACO’s participation agreement will be terminated and the ACO will not be eligible to share in savings for that year. 

3.    CMS would reserve the right to review the status of the ACO while on the corrective action plan and terminate the agreement on the basis that the ACO no longer meets eligibility requirements.

4.    (CMS would like comments on the above and on other potential options for addressing situations where the assigned beneficiary population falls below 5,000 during the course of an agreement period.)

 Required Reporting on Participating ACO Professionals

1.    In addition to providing ACO TINs and ACO participant TINs, the ACO would have to provide a list of national provider identifiers (NPIs) associated with the ACO providers/suppliers, which would separately identify the physicians that provide primary care.

2.    An ACO would e required to maintain, update, and annually report the TINs of its ACO participants and the NPIs associated with the ACO providers/suppliers. 

 Processes to Promote Evidence-based Medicine, Patient Engagement, Reporting, and Coordination of Care—the ACO would need to provide documentation in its application describing its plans re:

1.    Processes to Promote Evidence-Based Medicine, particularly the evidence-based guidelines it intends to establish, implement, and periodically update.

2.    Processes to Promote Patient Engagement (active participation of patients and their families in the process of making medical decisions) including how the ACO intends to establish, implement, and periodically update its processes for promoting patient engagement.

3.    Processes to Report on Quality and Cost Measures—the ACO would need to describe its process to report internally on quality and cost measures, and how it intends to use that process to respond to the needs of its Medicare population and to make modifications in its care delivery.  (Note:  CMS recognizes that processes include but are not limited to: (1) developing population health data management capability (CCNC Provider Portal), or (2)implementing practice and physician level data capabilities with point-of-service (POS) reminder systems to drive improvements in quality and cost outcomes.

4.    Processes to Promote Coordination of Care—examples include:

  • A capability to use predictive modeling to anticipate likely care needs.
  • Utilization of case managers in primary care offices.
  • Having a specific transition of care program that includes clear guidance and instructions for patients, their families, and their caregivers.
  • Remote monitoring.
  • Telehealth.
  • The establishment and use of health information technology, including electronic health records and an electronic health information exchange to enable the provision of a beneficiary’s summary of care record during transitions of care both within and outside an ACO.

(CMS is requesting comment on whether a more prescriptive approach would be appropriate.)


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