Skip to main content

Proposed ACO Rules Attract Public Gripes

 |  By cclark@healthleadersmedia.com  
   June 09, 2011

It's no surprise that controversy would badger the Centers for Medicare & Medicaid Services revolutionary accountable care organization concept. Any complex regulation exceeding 400 pages and requiring providers to form teams and accept an altered payment model stands to take some heat.

Just days after the proposed rules were released in April, Scripps Health president and CEO Chris Van Gorder told HealthLeaders Media, "Frankly I was surprised. I thought there would be more carrots, not so much stick."


ROUNDS: The Real Value of ACOs August 16, hosted by Norton Healthcare. Register today for this live event.


And as the period closed June 6 for public comments on CMS' proposed rules governing these new models of care, Van Gorder had plenty of company. Few provider groups or individuals had any nice things to say, save a platitude or two commending the agencies for taking on the effort.

At least 800 comment documents were filed on regulations.gov pertaining to CMS' purview over the ACO program.  Additional comments were filed to the Department of Justice, Office of Inspector General, Federal Trade Commission and Internal Revenue Service addressing their authorities and concerns about ACO legality and compliance.

The comments posted on regulations.gov are as varied as they are expressive and as long-winded and detailed as they are pithy. We chose a sample from a few that raise a constellation of concerns. Some, apparently speaking as individuals, are particularly pointed:

Why are nurse practitioners excluded from the Accountable Care Organization regulations?" wrote Carolyn Dollar of Family Health Care Clinics in Mississippi. "Do you have any idea what that will do to access to care in rural Mississippi and I dare say other rural states as well? I currently work in two rural clinics that do not have a physician present. My patients will have nowhere to go locally for healthcare if this regulation using only physicians as providers passes. I am hopeful that this will be seriously reconsidered.

"I'm not interested in this type of healthcare," wrote Margaret Bowlander of New York. "It will cost us more in the long run financially and care will be less. I don't plan on this horrible program to pass and am calling on God's name despite you trying to take Him out of everything."

And this from Cecil Wheeler of Maryland: "This has got to be the worst idea since junk bonds and forcing banks to make housing loans to those that just could not afford it. Stop this idiocy."

Of course the bulk of the comments came from large provider organizations that sent their multi-page comments with more formal language. Here are some of the highlights:

Premier Healthcare Alliance
A purchasing group representing some 2,500 hospitals and health systems and 75,000 healthcare sites, Premier Healthcare Alliance, had one of the longest responses, an 80-page annotated letter with charts, tables, and attachments. Throughout Premier's document, however, the bottom line was thumbs down.


Breakthroughs Report: The Bridge to Accountable Care Organizations FREE DOWNLOAD.


In an accompanying summary statement, Premier's senior vice president,  Blair Childs wrote, "the proposed rule will discourage ACO development, which represents one of the best hopes for coordinating care in the fee-for-service (FFS) system, improving quality and reducing costs." 

Echoing comments expressed by many other provider groups, Childs criticized CMS for choosing "a very prescribed approach to regulating ACOs" instead of simply developing a regulatory ceiling, above which ACO-styled operations could not go.

On the concern that CMS' retrospective assignment of patients to an ACO precludes providers from knowing which patients are in the group, Premier said CMS "should develop a set of exclusions for certain beneficiaries such as 'snow birds,' as the ACO will have no ability to affect the beneficiaries' heath and care while they are at their alternative home or traveling."

The Patient-Centered Primary Care Collaborative
Edwina Rogers, executive director of the Patient-Centered Primary Care Collaborative, a group of clinicians, insurers, consumers and businesses based in Washington, D.C., expressed a concern that CMS' intention to impose retroactive assignment of patients to an ACO after the conclusion of the performance period would create a "gaming of the system, since a group can remove the attribution of a patient" whose costs might reflect badly on their incentive payment, "by intentionally reducing billing by the physician."

Families USA
A rare upbeat comment came from Michaelle Gady, health policy analyst with Families USA, a voice for healthcare consumers.

Gady said her group is "pleased with the high bar that CMS set in the proposed rule and strongly urge CMS to maintain the robust quality improvement and consumer protections in the final rule."

However, even Families had a long wish list of items CMS should change in the 20 pages that followed, one of which is to require two Medicare beneficiary representatives sit on the governing body of every ACO for every 5,000 patients assigned. Without a specified representation number, having a beneficiary advisory panel or committee alone, which the rule proposes, "is inadequate on its own, in providing for appropriate patient participation in ACO governance."


Impact Analysis Leaders Respond to CMS' Proposed ACO Regulations FREE REPORT.


The American College of Physicians
Representing 130,000 internal medicine providers, many of whom would guide these ACOs, The American College of Physicians, expressed other objections.  "The current requirement...sets too high of a bar for participation by many internal medicine physicians, especially...in primary and comprehensive care of adults who practice in smaller, independent, physician practices."

Even large physician groups that are "already organized under an ACO-like structure that already have ready access to capital, substantial infrastructure development, and experience operating under an integrative service/payment model (e.g. Medicare Advantage)...have questioned the 'business case' for adoption." 

However, the ACP said it likes the idea of the Pioneer model that would relax some rules and provide for some 'advance payment' mechanisms for smaller practices.

The AMA
The American Medical Association's
executive vice president Michael Maves, MD, addressed the anti-trust provisions of the proposed rules governing ACOs. 

"Physician-led ACOs are a necessary option because the savings generated by ACOs in many cases are expected to result from reduced inpatient admissions, and this requires physician leadership outside of a hospital," he wrote. "Accordingly it is important that the antitrust rules create a level playing field that does not favor hospitals over physician-led ACOs."

But, he continued, "the proposed clinical integration rules unnecessarily require resources that many physicians do not have but that hospitals do possess" leading to "the unintended consequence of encouraging and facilitating hospital consolidation of physician markets by acquiring physician practices."

Already, he wrote, hospitals are increasing their acquisition of physicians and group practices, giving hospitals "significant market power." In many cases these activities are small and occur "under the radar of antitrust enforcement."


Intelligence Report: The Leap to Accountable Care Organizations FREE DOWNLOAD.


"It is critical that the U.S. Federal Trade Commission/Department of Justice set forth clear and common sense antitrust rules concerning the formation of ACOs so that physicians can pursue integration options that are not hospital driven."

The AHA
And the American Hospital Association, representing more than 5,000 hospitals and healthcare organizations and 200,000 employed physicians, devoted three paragraphs to a favorable mentions, saying it likes the Antitrust Safety Zone for organizations with a primary service area share of the market below 30% (although it would prefer 35%), and "applauds" the agencies for recognizing that exclusivity does not always indicate anticompetitive behavior.

But in the rest of its 24 pages, AHA executive vice president Rick Pollack described the proposed rule as "deeply disappointing."

For starters, Pollack wrote, "CMS lacks the legal authority to issue regulations governing the application of the antitrust laws or to delegate to the DoJ or the FTC the authority to block certain ACOs. The first prospective ACO participant to be blocked by the agencies should have a viable cause of action against CMS as there is no precedent for this kind of backdoor approach to regulation."

Also, he said, it falls short of its own stated goals" in these ways:

• To apply to the agencies for ACO designation "will cost potentially several hundred thousands of dollars" because of required calculations.

• Many ACO candidates seeking to build "the most comprehensive ACO models...are most likely to be ensnared in an uncertain, unappealable, burdensome and costly antitrust review before their merits as a force to transform healthcare delivery can be determined by CMS."

For example, any potential ACO in a metropolitan statistical area that includes the largest hospitals and any other hospital would undergo this review, as would any combination of the second and third largest hospitals.

The ANA
The American Nurses Association weighed in as well in its rebuke of CMS for having "a blind spot" in its failure to "properly identify and measure nursing services or provide sufficient incentives for care coordination, a core part of registered nursing practice."

And, ANA said, technical aspects of the rule could "prevent patients from choosing advanced practice registered nurses as their primary care provider" because the ACO model requires physicians to head them.


ROUNDS: The Real Value of ACOs August 16, hosted by Norton Healthcare. Register today for this live event.


The inability of a nurse practitioner or physician's assistant to bill under the ACO model – a function assigned only to a physician – was a repeated concern in many letters to CMS.

The ATA
The American Telehealth Association criticized what it called "formidable statutory restrictions for telehealth services" under Medicare A and B that could have been waived under this proposed rule, but were not. 

The agency should waive certain prohibitions to allow health services by video conferencing for 35 million Medicare beneficiaries who live in 1,092 metropolitan counties, the association said.

It should also permit telehealth services originating from a Medicare beneficiary's home, hospice, dialysis facility, or even a federally funded Indian Health Services facility, or "anywhere else from which a beneficiary seeks service" and to allow beneficiaries to receive physical therapy, occupational therapy, speech-language pathology and audiology services through telehealth systems. Apparently this is not now allowed in the proposed rule.

Bi-State Primary Care Association
James Zibailo, coordinator with the Bi-State Primary Care Association of Vermont and New Hampshire said his organization supports the effort to improve quality of care and reduce costs.

"However, the proposed CMS rule on the Medicare Shared Savings Plan excludes health center-formed accountable care organizations. In addition, it excludes Medicare patients of safety-net providers (such as federally qualified health centers, FQHC look-alikes, and rural health centers) from the shared savings program. The end result is the exclusion of some of the most underserved, at risk patients, who are most likely to benefit from the improved health outcomes associated with participation in the ACO."


ACOs and Drug Treatment Programs

Keith Urban, director of the Yamhill County Chemical Dependency Program in Oregon, weighed in with a concern that drug treatment programs have been left out of the equation. Substance abuse "is a very significant healthcare cost driver," he wrote. Cuts to substance abuse treatment, he said, "invariably reduce the cost savings derived from substance abuse treatment. The rest is politics."

It is sometimes said in life that the mark of a good proposal is one everyone finds some reason to dislike. 

With the exception of those early adopters approved for the Pioneer piece of the ACO rules, those organizations that apply for and are approved for the Medicare Shared Savings Program, known as the accountable care organization, will officially launch Jan. 1.

See Also:
Impact Analysis: Leaders Respond to Proposed ACO Regs
ACO Concerns Elicit Enticements from CMS
CMS Plans ACO Learning Sessions
In an ACO, Who's Accountable?

 

 

Tagged Under:


Get the latest on healthcare leadership in your inbox.