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Final Rule Will Give ACOs Participating in MSSP Access to More Data for More Beneficiaries

This is the third post in Health Care Law Today’s series on the final rule. This post addresses changes to sharing of beneficiary identifiable data.

In its December 8, 2014 proposed rule revising the Medicare Shared Savings Program (“MSSP”), CMS proposed several changes concerning how it would share beneficiary identifiable data with Accountable Care Organizations (“ACOs”). In particular, CMS explained in the proposed rule that while it expects participating ACOs to identify and produce the data they believe necessary to evaluate the health needs of their patient population, improve health outcomes, and monitor quality of care, it also recognizes that ACOs do not always have access to information for care provided to their assigned beneficiaries by health care providers and suppliers outside of the ACO.

CMS therefore proposed that in order to give ACOs the tools needed to improve care coordination, it provide more types of beneficiary identifiable information for a wider set of individuals. After considering public comments, CMS has decided to adopt the proposed changes.

Increased Data Sharing under the Final Rule

CMS finalized changes to data sharing that will be effective for all participating ACOs, as of January 1, 2016.

(1) Data for More Beneficiaries

For ACOs in Tracks 1 and 2, CMS is expanding the list of beneficiaries for whom data are made available to include all beneficiaries who had a primary care service visit during the previous 12 months with an ACO participant that submits claims for primary care services that are considered in the assignment process.  This change is intended to ensure that ACOs participating in Tracks 1 and 2 receive data for beneficiaries for whom the ACO may be accountable after retrospective reconciliation.

(2) Increased Data for Prospectively Assigned Beneficiaries

CMS has also increased the data that it will share for preliminarily prospectively assigned beneficiaries to include information in the following categories:

  • Demographic data such as enrollment status;

  • Health status information such as risk profile and chronic condition subgroup;

  • Utilization rates of Medicare services such as the use of evaluation and management, hospital, emergency, and post-acute services, including the dates and place of service; and

  • Expenditure information related to utilization of service.

This data will be provided in addition to the beneficiary identifiable data that is currently shared with ACOs (name, date of birth, health insurance claim number, and sex). CMS has not yet determined what specific information it will share in each of these additional categories. Instead, it said in the final rule that it will issue operational guidance that describes the particular data elements that will be provided for each category. However, in response to comments, CMS stated that at this time it does not intend to release beneficiary identifiable Hierarchical Condition Category risk score data or contact information for individual beneficiaries.

Streamlined Opt-out Process under the Final Rule

The final rule makes changes that are effective November 1, 2015 to the opt-out process for beneficiaries to decline data sharing. Currently, ACOs must notify each beneficiary of the opportunity to decline data sharing at the time of the beneficiary’s first visit with an ACO participant. Further, prior to the changes in the final rule, if ACOs wished to receive beneficiary data before the beneficiary’s first visit, they had to mail a notification that offered prospectively assigned beneficiaries the chance to opt out, and then wait for 30 days to give the beneficiaries the time to respond before receiving access to the beneficiary’s data.

The final rule keeps the requirement that ACO participants notify beneficiaries at the point of care that their ACO providers or suppliers are participating in the MSSP. ACO participants can meet the notification requirement by posting signs in their facilities and by making standardized written notices that use template language developed by CMS available to beneficiaries that receive primary care services.

Consistent with its proposed rule, however, CMS has eliminated the requirement that the ACO mail an opt-out notification to receive data prior to a beneficiary’s first visit. Instead, beneficiaries will be notified about the opportunity to decline claims data sharing through CMS materials such as the Medicare & You Handbook. CMS believes that this change will allow ACOs to obtain claims information earlier than is currently possible, which will allow the ACO to intervene in a beneficiary’s care earlier in the year.

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


About this Author

Adam Hepworth,  Health Care Attorney, Foley Law Firm

Adam J. Hepworth is an associate and health care business lawyer with Foley & Lardner LLP. He is a member of the firm’s Health Care Industry Team.

Prior to joining Foley, Mr. Hepworth was a law clerk for Judge Harris L. Hartz on the United States Court of Appeals for the Tenth Circuit. He also interned in the San Francisco City Attorney’s health group and externed in the Civil Division of the United States Attorney’s Office in San Jose. Before he attended law school he was a policy intern for Sierra Health Foundation, where he worked on...

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 abuse matters, and other health law issues. He is a member of the firm’s Health Care Industry Team. Mr. Geilfuss is co-chair of the Health Care Industry Team Business and Transactions Work Group.