In Search of Antitrust Guidance and Safe Harbors for Accountable Care Organizations

Gregory Pelnar, Mar 30, 2011

An Accountable Care Organization (“ACO”) is “an organization of health care providers that agrees to be accountable for the quality, cost, and overall care of Medicare beneficiaries who are enrolled in the traditional fee-for-service program who are assigned to it.” The Affordable Care Act of 2010 (“ACA”) encourages the formation of ACOs to provide medical care to Medicare beneficiaries and, if they meet quality thresholds, to share in the cost savings they achieve for the Medicare program. One hope is that ACOs will reduce the fragmentation of care across providers who have little, if any, communication with one another about the health status of their common patients, resulting in low-quality care (e.g., duplication of tests, prescriptions with adverse interactions, and unaddressed health problems that “fall through the cracks” because the patient’s other physician was supposed to address them). A still greater hope is that the hoped-for improvement in coordination of care will lower health care costs.

The Centers for Medicare & Medicaid Services (“CMS”) plans to establish a “Shared Savings Program” (“SSP”) by January 1, 2012. The statutory requirements for an organization to participate in the SSP include: (1) a minimum of 5,000 assigned Medicare beneficiaries; (2) an agreement to participate for at least three years; and (3) defined processes to promote evidence-based medicine, coordinate care, and report the data necessary for the evaluation of qual…

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