Value Based Purchasing and Health Care Reform

FTC Announces Public Workshop on Antitrust and ACOs - May 9th

On Monday, May 9, 2011, the Federal Trade Commission (FTC) will host a workshop to seek input on the Proposed Statement of Antitrust Enforcement Policy, which discusses how the federal antitrust agencies will enforce U.S. antitrust laws when competing health care providers create new Accountable Care Organizations (ACOs) under the Affordable Care Act of 2010. The Act encourages physicians, hospitals, and other health care providers to integrate their health care delivery systems in order to improve the quality and reduce the costs of health care services for U.S. patients.

The workshop will be held from 10:00 a.m. - 1:00 p.m. at the FTC Conference Center in Washington, D.C.

For more information, see the FTC Antitrust and Accountable Care Organizations Workshop Announcement (5/2/2011)

ACO Proposed Rule Released; Federal Agencies Request Comments

HHS News Release (3/31/2011): "The U.S. Department of Health and Human Services (HHS) today released proposed new rules to help doctors, hospitals, and other health care providers better coordinate care for Medicare patients through Accountable Care Organizations (ACOs).  ACOs create incentives for health care providers to work together to treat an individual patient across care settings – including doctor’s offices, hospitals, and long-term care facilities. The Medicare Shared Savings Program will reward ACOs that lower health care costs while meeting performance standards on quality of care and putting patients first.  Patient and provider participation in an ACO is purely voluntary."

HHS News Release: Affordable Care Act to improve quality of care for people with Medicare (3/31/2011)

Read the ACO Proposed Rule (published in Federal Register on April 7, 2011): Medicare Program; Medicare Shared Savings Program: Accountable Care Organizations (Comments due by June 6, 2011)

Read the Federal Trade Commission/Department of Justice Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (3/31/2011) (Comments due by May 31, 2011)

Read the IRS Guidance and Solicitation of Comments (Notice 2011-20) (Comments due by May 31, 2011)

FTC, CMS & HHS Publish ACO Workshop Notice

Today, the Federal Trade Commission (FTC), the Centers for Medicare & Medicaid Services (CMS), and the Department of Health and Human Services’ Office of Inspector General (OIG) published a Notice in the Federal Register announcing the October 5th Workshop regarding Accountable Care Organizations (ACOs).  The Workshop will include panel discussions and a listening session on certain legal issues related to ACOs, including antitrust laws, the physician self-referral prohibition (the "Stark Law"), the federal anti-kickback statute, and the civil monetary penalty law.

The CMS Registration Page states that the Workshop will be divided into morning (FTC) and afternoon (OIG & CMS) sessions.  Generally, the sessions will be conducted as follows:

FTC Morning Session (9:30 a.m. - 12:00 p.m.):

The two morning sessions will be devoted to exploring antitrust issues through moderated panel discussions.

At the first session, the panelists will address circumstances under which collaboration among independent health care providers in an ACO (not including a merger), permits ACO providers to engage in joint price negotiations with private payers without running the risk of engaging in illegal price fixing under the antitrust laws.  In particular, the panel will address the indicia of clinical integration sufficient to indicate that an ACO is likely to enable participating providers to improve the quality of their health care services and whether joint price negotiation is reasonably necessary to achieve these efficiencies.  The panel also will address options for dealing with Medicare ACOs that fail to achieve CMS-required quality performance standards and that, therefore, might no longer be eligible for Medicare Shared Savings Program payments under section 3022 of the Affordable Care Act.

At the second morning session, the panelists will explore ways to encourage formation of multiple ACOs among otherwise independent providers so that competition among ACOs in any given geographic market the will drive improved quality and affordability of health care.  For example panelists will explore:  (1) the analysis of arrangements where providers or facilities are exclusive, or non-exclusive, to an ACO; (2) the impact, if any, of risk-based contracting (for example, global payments and/or capitated rates) on market power assessments; (3) ways to assess whether formation of an ACO among independent providers may allow the ACO to increase price and reduce the quality of care; and (4) the financial, utilization, outcome, and patient experience data necessary to monitor and measure the impact of an ACO on prices and quality in the relevant markets.

 OIG & CMS Afternoon Sessions (1:00 p.m. - 4:30 p.m.):

The afternoon will consist of two separate sessions regarding how ACOs will interact with the physician self-referral prohibition, the anti-kickback statute, and the CMP law in order to better inform CMS and OIG (HHS Agencies) decision-making regarding the application of these laws to ACOs.  The first session will be a moderated panel discussion of industry stakeholders, including representatives of providers, suppliers, and health policy experts who will focus on the discussion topics listed below.

During the second session, a listening session, there will be an opportunity for other attendees to provide brief comments on the same topics either in person or via the teleconference, as time permits.  An agenda for the moderated panel discussions and the listening session will be released at a later time.

The Workshop is free, open to the public, and will be held at CMS Headquarters in Baltimore, Maryland.  The deadline for registration (seating is limited) and submission of comments or statements to be considered for discussion at the Workshop is September 27th at 5 p.m. (EDT). 

FTC, CMS & OIG to Host ACO Workshop - Oct. 5, 2010

Yesterday, the Federal Trade Commission (FTC) published a News Release announcing that on October 5, 2010, the FTC, the Centers for Medicare & Medicaid Services (CMS), and the Department of Health and Human Services’ Office of Inspector General (OIG) will co-host a day-long workshop on several issues associated with Accountable Care Organizations (ACOs), organizations authorized by the new Affordable Care Act.

According to the News Release, "the workshop, which will be held at CMS Headquarters in Baltimore, Maryland, is free and open to the public. To facilitate providers’ efforts to develop ACOs that will provide high quality, lower-cost care to their patients, the workshop will address and solicit public comments on the legal issues raised by various ACO models being considered by health care providers. Physicians, physician associations, hospitals, health systems, payers, consumers, and other interested parties are invited to participate in the workshop."

Additionally, the agencies will publish a notice in the Federal Register regarding the topics that will be covered at the workshop, registration, and instructions for submitting comments (which must be submitted by September 27th) for discussion at the workshop.

For more information, see the FTC News Release (Sept. 8, 2010).