Sunday, April 3, 2011

The Accountable Care Organization Proposed Rule: Spin, Waves, Congressional Intent, Not for the Faint of Heart & A Political Sideshow

A cause for voter excitement?
While the Disease Management Care Blog continues to prayerfully commune with each of the 429 pages of the ACO Proposed Rule ("?ambulatory sensitive conditions?"), it's also been checking out some other documents.


Based on a read of this "Sensitive or Controversial QandA" document (HT to The Hill with their handy summary), it appears CMS staffers have crafted a preemptive "talking points" memo. It opens with an appeal to consumerist frustrations over fragmented care and lost medical information with a promise of rehabilitated doc-patient partnerships with greater care coordination while preserving "choice" and access to "information."  That's followed by consumer "protections" verbiage, including a "vigorous monitoring program" with "site visits," data privacy protections, patient "opt outs" and the use of "identifiable data."   Whether this is enough to convince Medicare beneficiaries - who are largely satisfied with the current status of the program - that ACOs area good thing remains to be seen.

This is a Pilot, Right?

Not exactly. Recall that the Affordable Care Act (ACA) refers to ACOs as a program.  This just published New England Journal Perspective, authored by CMS Administrator Don Berwick, lauds the "coming waves of ACOs." It would have been bad taste to use the word "tsunami," but the point is that CMS seems intent on making sure that ACOs will never go away

As an aside, the Berwick Perspectives article echoes much of QandA document mentioned above.  It too tut-tuts the heartbreak of "fragmented care" and promises that ACOs will cater to patients' care preferences, achieve better information management and preserve the right to "seek care from any Medicare provider."  Given their similar themes, the DMCB wonders if it was Dr. Berwick who wrote the "QandA" document above and if the Journal's academic role includes a "talking points"style promotion of the Administration's health reform agenda.   

Just what is the definition of "shared savings," or better yet, just what was the intent of Congress?

As readers will recall, the statutory language of the ACA refers to "shared savings." Yet, in the Proposed Rule, CMS recommends that the gainshare implied by the "shared savings" language be, um, adjusted so that ACOs are also exposed to downside risk if savings are not achieved. 

The DMCB went back to take a second look  at the ACA original language (bolding by the DMCB):

"Subject to performance with respect to the quality performance standards established by the Secretary..., if an ACO meets the requirements under paragraph (1), a percent (as determined appropriate by the Secretary) of the difference between such estimated average per capita Medicare expenditures in a year, adjusted for beneficiary characteristics, under the ACO and such benchmark for the ACO may be paid to the ACO as shared savings and the remainder of such difference shall be retained by the program under this title.....

The DMCB is still going through the Proposed Rule, but it can't find a vigorous argument that "shared savings" really means "two sided" risk.  However, the QandA document linked aboves above refers to the need to "intensify the incentive for shared savings as outlined in the Affordable Care Act, making the policy more likely to meet the goals laid out in the law." It also points out that MedPAC recommended a two-sided risk model.

So there you have it.  Congress really didn't mean "gainshare" and MedPAC says its OK.

By the way, the Proposed Rule also repeatedly refers to the "three part aim." While that certainly has merit, that's really a paraphrase of the term "Triple Aim" from Dr. Berwick's Institute of Healthcare Improvement.  If you're going to rewrite a law like the ACA, might as well go all the way. 

Not For The Faint of Heart

It's one thing, says the DMCB, to put a lot of money into forming an ACO and not achieve a gain share, but what if you make the investment and end up on the negative, money losing and short-end of the two-sided risk model?  It looks like tough luck. The ACA language says "there shall be no administrative or judicial determination of whether an ACO is eligible for shared savings under subsection and the amount of such shared savings, including the determination of the estimated average per capita Medicare expenditures under the ACO for Medicare fee-for-service beneficiaries assigned to the ACO and the average benchmark for the ACO under subsection..."  CMS' word is final.

Vince Kuraitis over at e-CareManagement has it right: "Tire Kickers" need not apply, e-specially if they're not very brave.

 Yet, This is Still A Minor Sideshow?

While ACOs seem to be the progressive ACA supporters' Great White Hope for the our national problem of unremitting cost inflation and substandard quality, the DMCB doubts mainstream voters will "get it."  As this James Capretta Kaiser HealthNews article points out, much of the ACA simply hasn't resonated with the public consciousness.  Not only are the "risk pools," "coverage of 26 year olds" and guaranteed coverage non-events, the same logic seems applicable to "ACOs." 

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