ACO Update: Increased Exchange of PHI for ACO Participants; Beneficiaries Retain HIPAA Privacy Rights


Recently issued regulations and other notices for comments have given health care providers guidance on how to organize and operate accountable care organizations (ACOs) in order to be eligible to receive payments under Medicare’s Shared Savings Program. The Affordable Care Act (ACA), signed into law in March 2010, included incentives for the creation of ACOs. Congress established the ACO Shared Savings Program in the ACA to promote accountability of providers to patient populations and to coordinate services under Medicare as well as to encourage providers to make investments in infrastructure and to design care processes for highquality, efficient service delivery.Almost a year later on March 31, 2011, several federal agencies (CMS, OIG, DOJ, FTC and IRS) jointly announced the release of proposed rule making and guidance regarding the ACO program. The proposed rule and related guidance is expected to remove the existing legal impediments in the areas of fraud and abuse, antitrust, tax and privacy to allow for the development of ACOs, and provide guidance on such issues as eligibility to participate, governance, legal structure, quality and privacy.

As mandated in 2009 under the Health Information and Technology for Economic and Clinical Health (HITECH) Act, CMS has established measurements and incentives for the meaningful use of electronic health records (EHR) that would allow for the sharing of information and reporting of data. Under the Shared Savings Program, which expects that providers will have the information they need to provide care to patients, EHRs will play a critical role in the collection and reporting of data. CMS’s goal is to have patient health information available to providers no matter where or when a patient seeks care. CMS’s proposed rule implementing the Shared Savings Program requires ACOs to have certified EHRs that enable the collection and evaluation of data by the ACO as well as the reporting quality data to the CMS. In addition, CMS foresees ACOs need for EHRs to facility real-time improvements at the point of care based off of this data. The proposed CMS rule also contemplates the use of techonology for care coordination, such as telehealth, remote monitoring and electronic transition of health care records.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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