South Florida Hospital News
Friday October 23, 2020
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June 2012 - Volume 8 - Issue 12
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Deciphering ACO Exclusivity for Specialist Physicians

On November 3, 2011, the Centers for Medicare & Medicaid Services (CMS) published the “Accountable Care Organizations (ACOs) Final Rule to participate in Medicare Shared Savings Program (MSSP).” One of the concerns of specialist physicians who are interested in joining an ACO is their ability to participate in more than one ACO. In the Final Rule, CMS included provisions that provide flexibility for specialists to participate in multiple ACOs. However, practically speaking, they may not have as much flexibility as the Final Rule appears to provide.
 
As part of its application to CMS, a prospective ACO is required to submit a list of its ACO participants and their associated ACO providers/suppliers, and identify those providers/suppliers who are primary care physicians. Further, the ACO participants and the providers/suppliers are, prior to the filing of the ACO application, required to sign agreements or contracts relating to participation in the ACO.
 
The question of how Medicare beneficiaries will be assigned to an ACO becomes a critical step in determining whether a given ACO participant is able to provide services on behalf of multiple ACOs.
 
The assignment of a Medicare beneficiary to a particular ACO is a two-step process:
 
1. CMS identifies those beneficiaries who have received at least one primary care service during the most recent 12 months from a primary care physician ("PCP") who is a provider/supplier in that ACO. The beneficiary is then assigned to the ACO of the PCP who provided a plurality of his/her primary care services.
 
2. For a beneficiary who has not received primary care services from a primary care physician in the previous twelve months, CMS will make a prospective ACO assignment determination based upon the total allowed charges paid by the program to a specialist physician for primary care services rendered to that individual.
           
When the assignment of Medicare beneficiaries to an ACO is determined through Step 1, any primary care physicians assigned a beneficiary will likely cause that physician’s group to be exclusive to one ACO. Moreover, even when an ACO participant does not have primary care physicians among its ACO providers/suppliers, if one of its specialist physicians provides the plurality of primary care services in the previous performance year to even one Medicare beneficiary, and that beneficiary does not receive primary care services from any primary care physician, that beneficiary will be assigned to the ACO, and the specialist physician will be treated like a primary care physician in that he or she (and other physicians billing under the ACO participant’s TIN) may only participate in one ACO.
 
Thus, at first glance, the Final Rule appears to provide physician specialists with the flexibility to belong to multiple ACOs. However, whether intended or not, many specialists may find their options are foreclosed by virtue of the nature of the services other physicians in their ACO participant render, or the services they render as part of their practices.
Stephen H. Siegel is Of Counsel with the Miami office of Broad and Cassel and a member of the statewide firm’s Health Law Practice Group. He can be reached at shsiegel@broadandcassel.com or (305) 373.9400. Fred Segal is an attorney in the Miami office of the statewide law firm Broad and Cassel, where he is a member of the Health Law Practice Group. He may be reached at fsegal@broadandcassel.com or (305) 373-9477.
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