Levels of antitrust scrutiny for ACOs: Feds propose a tiered system of review for health care provider groups under the new affordable care law


Health Law

The Department of Justice and Federal Trade Commission recently proposed new guidelines regarding antitrust enforcement of accountable care organizations— the new health care delivery model mandated by the 2010 Patient Protection and Affordable Care Act (PPACA) pursuant to its “shared savings program.” This statement was issued in conjunction with the Department of Health and Human Services’ Centers for Medicare and Medicaid Services’ (CMS) proposed regulations implementing the shared savings program, as part of a coordinated interagency effort to facilitate health care provider participation in the shared savings program, so as to achieve the cost savings and improvement in quality of care Congress intended.

Accountable care organizations (ACOs) are, in essence, collaborations of independent health care providers and/or provider groups (including physician practice groups, hospitals, physician-hospital organizations and any other provider groups that CMS deems appropriate) centered around the concept of enhanced coordination of care to improve both the quality and cost of care. ACOs are to be accountable for the overall care of a defined population of Medicare beneficiaries, and upon meeting certain performance standards set by CMS, awarded some portion of any savings realized (in addition to traditional fee-for-service payments).

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