Ropes & Gray Analysis of CMS Proposed ACO Rule and Related Agency Issuances



On March 31, 2011, the Centers for Medicare & Medicaid Services (“CMS”) released the long-awaited Medicare Shared Savings Program proposed regulations establishing Medicare Accountable Care Organizations (“ACOs”) (the “Proposed Rule”). The Shared Savings Program, which is authorized under section 3022 of the Affordable Care Act (the “Act”), represents another step in a long line of efforts to move Medicare towards a program that pays for the value, not the quantity, of care furnished to its beneficiaries. The proposed ACO program would reward ACOs for delivering integrated care at lower costs while meeting quality standards. According to CMS Administrator Donald Berwick, “ACOs are not just a new way to pay for care but a new model for the organization and delivery of care.” ACOs are also intended to help achieve the triple aim of “better care for individuals,” “better health for populations,” and “lower growth in expenditures.”

The Proposed Rule is part of a multi-agency collaboration to launch the program. In conjunction with the Proposed Rule, CMS and the Department of Health & Human Services Office of Inspector General (“OIG”) issued a waiver statement, the Federal Trade Commission (“FTC”) and Department of Justice (“DOJ”) released an antitrust policy statement, and the Internal Revenue Service (“IRS”) promulgated a notice regarding tax-exempt organizations. Ropes & Gray has assembled a team of health care, antitrust, and tax attorneys to review these various issuances. Additional Ropes & Gray ACO analyses, including materials from our ongoing ACO webinar series, can be found at the ACO page of the Ropes & Gray Health Reform Resource Center.

The Proposed Rule and related issuances were published in the Federal Register today. CMS will be accepting comments on the proposed rule until June 6, 2011 and plans to release a final rule by the end of the calendar year. The Shared Savings Program is expected to begin in January of 2012.

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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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