However, Goertz says there is a "two-edged sword" in the formation of the ACOs as outlined by CMS, although targeting improved patient care and efficiency outcomes, "has a bit of variability" that still needs to be determined through a stricter set of guidelines. "Without a more restricted set of guidelines you are going to have a bit of variability that is going to have to be tolerated for awhile," he says.
Another major area of concern for physicians involves in the formation of ACOs, in capital requirements and anti-trust issues, outlined in the HHS document as well as a proposed ACO anti-trust enforcement policy from the Department of Justice and the Federal Trade Commission.
"Significant barriers" must be addressed, Jeremy A. Lazarus, MD, speaker for the American Medical Association House of Delegates, said in a statement following release of the proposed rule, including the large capital requirements to fund an ACO and make required changes.
The capital requirements for ACOs might be too high for many physicians. In a December, 2009 letter to Berwick, the AMA's executive vice president, Michael D. Maves, MD, MBA, wrote that the CMS should only establish requirements for ACOs that require large capital investments if it provides a financing mechanism to enable physician practices to make those investments.
Maves suggested that the government create loan, loan guarantee, and technical assistance programs to help small physician practices make the investments needed to become ACOs. Taking those actions "will significantly reduce the need for upfront investment, as well as reduce risks and delays in recouping those investments," Maves wrote.
Taking the actions above will significantly reduce the need for upfront investment, as well as reduce risks and delays in recouping those investments, according to Maves.
As for anti-trust issues, the AMA suggested that the government should create explicit safe-harbors from antitrust enforcement and waivers of the civil monetary penalty statute "so that small, independent physician practices can work with each other and collaborate with hospitals and other providers to deliver coordinated care for both Medicare beneficiaries and commercially-insured patients."