Turkal says the anti-monopoly provisions put forward by the Department of Justice also could prove to be overly burdensome for integrated care systems like Aurora. "There is a regulatory review by market and it is broadly defined. If you have more than 50% of any market you have to go through a regulatory process for approval of a pilot," he says. "In a case like ours, where we are an integrated delivery system, anything where we exceed 50% would mean a review in that market. For example, if we have the predominant home care agency in a rural market we immediately have to go through a regulatory hurdle, even though the pilot wouldn't necessarily change our market share at all because we may be the only provider. So, it created a regulatory hurdle that seems to be pretty complicated for those of us who span several different markets. In our case it would require regulatory reviews in virtually all our markets."
Chris Van Gorder, President and CEO, Scripps Health, said in an interview with HealthLeaders Media shortly after the proposed rules were released, "Frankly, I was surprised. I thought there would be more carrots, not so much stick." His reaction, and that of his peers at other hospitals and health systems is in this report.
Turkal also expressed widely held concerns about the retroactive assignment of patients to ACOs after the first year, and the potential problems with data sharing, including the right of patients to limit access to personal health data. "I'm not sure it gives us the flexibility to work with our patients in a way that will make it successful," he says.
Turkal says CMS' willingness to make fundamental changes to the proposed rules could determine whether or not the ACO model success.