October 1, 2020

Volume X, Number 275

September 30, 2020

Subscribe to Latest Legal News and Analysis

September 29, 2020

Subscribe to Latest Legal News and Analysis

September 28, 2020

Subscribe to Latest Legal News and Analysis

CMS Issues Final Rule on ACOs Participating in Medicare Shared Savings Program

The Centers for Medicare & Medicaid Services (“CMS”) issued a final rule (the “Final Rule”) for accountable care organizations (“ACOs”) participating in the Medicare Shared Savings Program (“MSSP”) on June 6, 2016. In the Final Rule, CMS reflects its continuing efforts to modify alternative payment programs to make them more workable while also moving toward the goal of having 50% of Medicare payments paid through alternative payment programs by 2018.

Money, StethoscopeIn issuing the Final Rule, CMS aims to strengthen incentives under the MSSP by (1) refining the MSSP benchmarking methodology; (2) establishing additional options for ACOs to enter performance-based risk arrangements; and (3) addressing policies for reopening of payment determinations to make corrections after financial calculations have been performed and ACO shared savings and shared losses for a performance year have been determined.

The key provisions of the Final Rule are as follows:

  • Benchmarking Methodology: In the Final Rule, CMS modifies the approach for resetting/rebasing an ACO’s benchmark for a second or subsequent agreement periods beginning on or after January 1, 2017. CMS replaces the national trend factor with regional trend factors for establishing the ACO’s rebased historical benchmark. The Final Rule also provides for an adjustment when establishing the ACO’s rebased historical benchmark to reflect a percentage of the difference between the regional fee-for-service (“FFS”) expenditures in the ACO’s regional service area and the ACO’s historical expenditures. Comparing hospitals against regional cost standards is an approach CMS is utilizing in other alternative payment programs, including the Comprehensive Joint Replacement bundled payment program. Finally, CMS will update the rebased benchmark on an annual basis to account for changes in regional FFS spending and will account for changes in the ACO’s Participant List prior to the start of the performance year when adjusting an ACO’s rebased historical benchmark.

  • Additional Options for Performance-Based Risk Arrangements: ACOs are able to enter either the one-sided or two-sided model for the first agreement period. Eligible ACOs participating under the one-sided model for the first agreement period may apply to continue under such model or may apply to a two-sided model for the second agreement period. In the Final Rule, CMS provides an additional option for ACOs participating under the one-sided model to apply to renew for a second agreement period under a two-sided model. If approved, the ACO may request that its initial participation agreement under the one-sided model be extended for an additional year, in which case the ACO would enter into a fourth performance year under the one-sided model. At the end of the fourth performance year, the ACO will then transition to the two-sided model.

  • Reopening Payment Determinations: As a result of the Final Rule CMS may reopen a payment determination for good cause no more than four years after the date the ACO is notified of the initial determination. “Good cause” may be established when (1) there is new material evidence that was not available or known at the time of the payment determination, which may result in a different conclusion; or (2) the evidence that was considered in making the payment determination clearly shows that an obvious error was made at the time of the payment determination. CMS can also reopen a payment determination at any time in the case of fraud or similar fault.

Through the Final Rule, CMS continues to modify the MSSP to make it more workable while still encouraging providers to move toward taking downside risk.

© 2020 Foley & Lardner LLPNational Law Review, Volume VI, Number 180


About this Author

C. Frederick Geilfuss II, Health Care Attorney, Foley Lardner Law Firm

C. Frederick Geilfuss II is a partner and health care lawyer with Foley & Lardner LLP. Mr. Geilfuss counsels health systems, hospitals, medical clinics, rehabilitation agencies, nursing homes, and other health care providers on general operational concerns, regulatory and business matters. He has many years of experience in health care acquisitions, integrated delivery service issues, managed care contracting, defense of providers against government enforcement actions, finance, real estate, administrative and medical staff issues, physician recruitment, fraud and...

Christopher J. Donovan, Foley Lardner, Partner, Litigation Lawyer

Christopher J. Donovan is a partner with Foley & Lardner LLP. He focuses his practice on advising companies and their investors and lenders in mergers and acquisitions, recapitalizations, buyouts and restructurings as well as advising on a broad range of commercial arrangements. Mr. Donovan has particular experience in the health service, particularly post-acute, and life sciences sectors. He has a unique blend of deep regulatory as well as corporate and finance experience to bring to a transaction as a result of his consummating dozens of health and life science deals, both domestic and international. He is a member of the firm’s Health Care and Life Sciences Industry Teams as well as the Private Equity & Venture Capital Practice.

Prior to joining Foley, Mr. Donovan was a member of the Corporate and Health Practice Groups for 29 years in the Boston office of McDermott Will & Emery LLP.

Alexis Bortniker, Health Care Attorney, Foley Lardner Law Firm

Alexis Bortniker is a senior counsel and health care lawyer with Foley & Lardner LLP. Her practice focuses on transactional and regulatory matters with an emphasis on counseling health systems, hospitals, and other providers in managed care and physician contracting. Ms. Bortniker is a member of the firm’s Health Care Industry Team.

Previously, Ms. Bortniker was an associate with Choate Hall & Stewart LLP where she gained experience working directly with health care organizations on regulatory and corporate compliance issues, including...

Elizabeth Rosen, Health Care Attorney, Foley Lardner Law Firm

Elizabeth J. (Betsy) Rosen is an associate and health care lawyer with Foley & Lardner LLP. She focuses her practice in the health care field where she advises hospitals, hospital systems, physician organizations and other health care entities on regulatory, transactional and corporate matters. Ms. Rosen is a member of the firm's Health Care Industry Team. Ms. Rosen worked as a summer associate with Foley in 2012.