The reviews are in, and most healthcare provider groups are finding little to their liking in the proposed rules for the Centers for Medicare & Medicaid Services’ (CMS) voluntary Accountable Care Organization (ACO) program. Organizations like SHM have publically supported the concept of an ACO, but details in the 128 pages of proposed rules released March 31 apparently were not what they had in mind. The problem, as many provider groups detailed in a flurry of letters sent before the June 6 deadline for comments, is too much stick and not enough carrot.
The Patient Protection and Affordable Care Act of 2010, which authorized the program, stipulates that any Medicare savings deriving from ACOs must be divided between CMS and participating organizations. Organizations can choose between two financial models: One track allows participants to retain 60% of overall savings but also requires them to assume financial risk from the start; a second track delays any risk until the third year and offers 50% savings. In exchange, ACOs must achieve an average savings of 2% per patient, as well as meet or beat thresholds for 65 measures of quality.
Critics contend that the recommended rules are so onerous and bureaucratic that the program is likely to attract few takers. In its comment letter, SHM expressed an opinion shared by many: "Although the ACO concept holds much promise, the proposed rule as written presents many barriers to successful ACO development and operations. Establishing an ACO will require an enormous upfront investment from participating providers, but the proposed rule does not allow for enough flexibility to ensure a reasonable return on investment." (Read SHM’s response letter at www.hospital medicine.org/advocacy.)
The American College of Physicians similarly warned that the proposed rules set the bar too high for many would-be participants. "The required administrative, infrastructure, service delivery, and financial resources and the need to accept risk will effectively limit participation to those few large entities already organized under an ACO-like structure; that already have ready access to capital, substantial infrastructure development, and experience operating under an integrative service/payment model (e.g. Medicare Advantage)," the ACP wrote in its response letter (www.acponline.org/run ning_practice/aco/acp_comments.pdf).
The tone was markedly different in letters from consumer and advocacy groups, including one by the Campaign for Better Care, signed by more than 40 organizations (www.nationalpartnership.org). "Overall we believe you are moving in the right direction with the proposed rule, and we applaud your commitment to ensuring ACOs deliver truly patient-centered care," the letter stated. Acknowledging the negative feedback, the letter continued, "While some are concerned about asking too much of ACOs, we cannot expect genuine transformation to be easy, and we know that these new models must be held to standards that ensure they deliver on the promise of better care, better health, and lower cost."
—Michael W. Painter, JD, MD, senior program officer, Robert Wood Johnson Foundation, Princeton, N.J.
Michael W. Painter, JD, MD, senior program officer at the Robert Wood Johnson Foundation in Princeton, N.J., helped research and write the foundation’s own comment letter, which he says tried to bridge the divide between provider and patient groups.
"We did get behind the notion of ratcheting up the accountability for quality and cost, including the risk, as soon as it makes sense to do it," he says. "Not dragging our feet, recognizing that we have to do it rapidly, but it has to be balanced by being reasonable to help move from where we are."
Given the mandate for change, Dr. Painter says, the negative tone of many letters from provider organizations shouldn’t be surprising. "What we’re asking the hospital, the health professionals, to do is to change fairly radically and embrace this accountability. So as you just walk through the door of this conversation, it’s not surprising that they would balk," he says. "Nobody wants to take on all of this new responsibility. It’s no fault of theirs; they’ve just been following the rules of the road of the current system and the payment schemes to try to be successful in that environment."
Success, of course, depends on financial stability, and Dr. Painter says the worry that participating ACOs could open themselves up to financial risk too soon is "absolutely a legitimate concern." CMS, he says, should give providers clear guidance and assistance, as well as assurance that the regulations won’t change on them once they’ve enrolled.
So far, at least, CMS has not swayed some of the very institutions that government officials have lauded as examples of how ACOs should be run. In June, the Mayo Clinic in Rochester, Minn., announced that it would not participate. As reported by the Minneapolis Star Tribune, clinic officials said the proposed regulations clashed with Mayo’s existing Medicare operations. One of the clinic’s chief complaints is the proposed requirement that patients be added to oversight boards charged with assessing performance, something that Mayo argues is unnecessary to deliver patient-centered care. Antitrust rules represent another major concern for Mayo and others that argue their dominant position as healthcare providers in rural communities could run afoul of the regulations.
Cleveland Clinic likewise blasted the proposed ACO rules in a letter. "Rather than providing a broad framework that focuses on results as the key criteria of success, the Proposed Rule is replete with (1) prescriptive requirements that have little to do with outcomes, and (2) many detailed governance and reporting requirements that create significant administrative burdens," stated Delos Cosgrove, MD, the clinic’s CEO and president.
Furthermore, Cosgrove’s letter concluded that the shared-savings component "is structured in such a way that creates real uncertainty about whether applicants will be able to achieve success."
The American Medical Group Association went so far as to include in its letter the results of a member survey, which showed 93% would not enroll under the current ACO rules.
No Turning Back
Dr. Painter says the pushback is to be expected. Although the country has no choice but to move toward more accountability, he says, it’s impossible for the first attempt at a proposed rule to be the "magic bullet" that gets it exactly right. "One, this is a radical departure, and two, when you get into the nitty-gritty of the proposed rule and people crunch the numbers, if it’s not going to work for them or it’s simply not enticing enough for them, they [CMS] need to go back to the table and make it that way," he says.
Organizations like the American Medical Association have been particularly vocal about asking CMS to delay issuing its final rule, slated for January. So far, Dr. Painter says, CMS officials have indicated that the timeline will proceed according to schedule, though he notes that providers have raised plenty of valid concerns that should be addressed.
"Would I be surprised if there’s a delay? No. This is a big deal," he says.
Along with some expected rule changes, he says the newly formed Center for Medicare and Medicaid Innovation could play a key role in offering assistance and developing alternative ACO models and pilot programs.
Regardless of whether the voluntary CMS program ultimately pleases both providers and patients, though, one thing seems certain: The accountable-care concept is here to stay.
Bryn Nelson is a freelance medical writer based in Seattle