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CMS Releases Final Rule on Medicare Shared Savings Program

The Centers for Medicare and Medicaid Services (“CMS”) released a final rule, on June 4, 2015, addressing changes to its Medicare Shared Savings Program (“MSSP”) Accountable Care Organization (“ACO”) Regulations. The final rule follows a proposed rule released on December 1, 2014. The final rule seeks to encourage continued and enhanced provider participation and to reduce administrative burdens for ACOs participating in the MSSP. Ultimately, the rule provides ACOs more flexibility in their participation in the MSSP. Over 400 organizations are now participating in the MSSP, representing over 7 million beneficiaries.

The final rule is effective on August 3, 2015, with the exception of certain designated provisions that become effective November 1, 2015 and January 1, 2016.

Among the highlights are:

  • Provisions permitting ACOs to renew their participation in the MSSP for a second three-year term without taking downside risk. CMS anticipates that 90 percent of eligible ACOs will renew their participation in the MSSP.

  • Financial modifications to the risk models to encourage ACOs who are ready to take on more risk, with incentives to do so, including introduction of a Track 3 Model with higher risks, higher rewards, and with a prospective beneficiary assignment.

  • Changes in the calculation of the cost benchmarks in a renewal term so that past cost-reduction success does not automatically translate into more difficulty in beating the new lowered cost benchmark.

  • Clarification of guidance related to ACO participant agreements and ACO provider lists.

  • Revisions to the beneficiary assignment algorithm, including updates to the CPT codes that will be considered to be primary care services.

  • Clarification or updates on a number of provisions including:

    • the process to renew a three-year agreement;

    • language that must appear in a participation agreement;

    • expanding the beneficiary identifiable date that is available to ACOs in various reports.

  • Improving participation in Track 3 by offering regulatory relief related to the 3-day stay rule for SNFs.

  • Indicating that CMS will continue to test additional payment rules and other waivers, beyond the SNF 3-day stay rule, for other specified provisions.

Stay tuned for more details on each of these changes published in the CMS final rule.

Noga M. Benmor-Piltch is a co-author of this article.

© 2020 Foley & Lardner LLP


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...

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.