Value-Based Care News

Do Medicare Shared Savings Program Final Waivers Boost ACOs?

By Jacqueline DiChiara

- Laws that restrict financial arrangements between hospitals, physicians, beneficiaries, and the like are on the immediate horizon, according to newly published regulation from the Centers for Medicare & Medicaid Services (CMS), the Office of Inspector General (OIG), and the Department of Health and Human Services (HHS).

Accountable care organizations Medicare Shared Savings Program

Waivers regarding physician self-referral law application, the Federal anti-kickback statute, and various aspects of the civil monetary penalties (CMP) law provision will be finalized via a final rule, says the 120-page regulation.

Final rule aims to combat healthcare fraud and abuse

This rule establishes waivers of mandated specified fraud and abuse laws with a focus to both avert and address damages connected to referral payments.

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  • Due to legislative changes following commentary publication for November on the Interim Final rule, the final rule does not finalize waivers regarding application of CMP in correlation with “gainsharing” agreements, confirms the regulation.

    “As development of the Shared Savings Program began, stakeholders expressed concerns that these restrictions potentially impede development of innovative integrated-care arrangements envisioned by the Shared Savings Program, including shared savings arrangements and care coordination arrangements,” the regulation states.

    HHS Secretary Sylvia M. Burwell is authorized via the Social Security Act to waive specified fraud and abuse laws according to need so the provisions of section 1899 of the Social Security Act and aspects of the Shared Savings Program can be correctly executed, says the regulation.

    Five finalized waivers may benefit ACOs

    Accountable Care Organizations (ACOs) will indeed reap many benefits of the aforementioned news, confirms the legislation.

    “[Waivers] provide flexibility for ACOs and their constituent parts to pursue a wide array of activities, including start-up and operating activities that further the purposes of the Shared Savings Program,” the legislation states.

    “[These waivers] are intended to protect Medicare beneficiaries and the Medicare program from fraud and abuse while furthering the quality, economy, and efficiency goals of the Shared Savings Program,” the regulation adds.

    Says the regulation, the final rule settles waivers according to information contained within the IFC. Five waivers to be finalized are:

    • An “ACO pre-participation” waiver of the physician self-referral law and the Federal anti-kickback statute that applies to ACO-related start-up arrangements in anticipation of participating in the Shared Savings Program, subject to certain limitations, including limits CMS-1439-F on the duration of the waiver and the types of parties covered;
    • An “ACO participation” waiver of the physician self-referral law and the Federal anti-kickback statute that applies broadly to ACO-related arrangements during the term of the ACO's participation agreement under the Shared Savings Program and for a specified time thereafter;
    • A “shared savings distributions” waiver of the physician self-referral law and the Federal anti-kickback statute that applies to distributions and uses of shared savings payments earned under the Shared Savings Program;
    • A “compliance with the physician self-referral law” waiver of the Federal anti-kickback statute for ACO arrangements that implicate the physician self-referral law and satisfy the requirements of an existing exception; and
    • A “patient incentive” waiver of the Beneficiary Inducements CMP and the Federal anti-kickback statute for medically related incentives offered by ACOs, ACO participants, or ACO providers/suppliers under the Shared Savings Program to beneficiaries to encourage preventive care and compliance with treatment regimes.

    Waivers benefit Shared Savings Program, reduce ACO burden

    Over 400 ACOs participate in the Shared Savings Program, the regulation says. Most ACOs will likely renew their participation as new organizations annually join the ACO bandwagon, claims CMS.

    “From the comments received on the IFC, we understand the waivers have numerous important benefits to the operation and success of the Shared Savings Program,” the legislation says.

    “Namely, they remove legal and regulatory barriers that can impede care coordination in furtherance of the Shared Savings Program, and they reduce burden on ACOs, ACO participants, and ACO providers/suppliers.”