Issue link: https://viewer.e-digitaledition.com/i/51232
to the Final Medicare Shared Savings Rules KEY CHANGES By Alexandra L. Jorgensen ON OC TOB E R 2 0, 2011, the Centers for Medicare and Medicaid Services ("CMS") released the final rule on the Medicare Shared Savings Program ("MSSP") and Accountable Care Organizations ("ACOs"), significantly revising the proposed rules published in March 2011 and providing a friendlier environment for providers. The final rule includes a number of key differences from the proposed rule that addressed many of the complaints that were submitted regarding the proposed rule. Below are some noteworthy changes in the final rule. No requirement to assume risk for shared losses. CMS created two tracks, Track 1 and Track 2, and providers choose which track to participate in. Track 1 participants will only participate in shared savings during their initial three-year agreement period and are not liable for shared losses realized during any performance year. Track 2 participants will be offered greater shared savings opportunities, but are responsible for losses from the start. This change now gives ACOs more time, if needed, to plan for risk and possible losses in the future. No retrospective assignment of beneficiaries. Rather than be assigned retrospectively as the proposed rule had suggested, Medicare beneficiaries are now assigned on a preliminary prospective basis at the beginning of each performance year. The beneficiary information will be updated quarterly based upon the most recent 12-month data, with an annual r e conc i l i a t ion based on patients actually served by the ACO. Assignment to specialists. If the beneficiary has not received any primary care services from a primary care physician, the final rule allows a benef iciary to be assigned to a specialist. The beneficiary shall be assigned to the ACO profes- sional having the plurality of allowed charges for primary care services. Significant reduction in the number of quality measures. CMS reduced the number of quality measures from sixty- five measures to thirty-three measures. This change addressed providers' concerns about administrative costs and the burden of measuring and reporting the proposed quality measures. Further, CMS addressed concerns about the uncertainty of future quality measures and performance standards by indicat- ing that CMS anticipates a static set of quality measures during the first agreement period. No EHR meaningful use requirement. The final rules eliminated the require- ment that fifty percent of an ACO's primary care physicians be meaningful users by the start of the second perfor- mance year. Meaningful use is, however, incorporated into the MSSP as a quality measure. This addressed providers' concerns about the costs associated with this requirement, especially for rural and physician-owned ACOs. Finally, even in this friendlier envi- ronment, the process of becoming an ACO and maintaining such status can be complex, involving many organiza- tional challenges and legal issues, so it is important to create a structured organized plan well in advance of when the ACO would like to submit its application. For 2012, the final rule provides for delayed start dates of April 1, 2012 and July 1, 2012, with application deadlines of January 20 and March 30, respectively. Alexandra Jorgensen is an Attorney in the Health Care group at Brouse McDowell in Akron. ■