Chicago - March 29-30, 2012
2012 PLUS Medical PL Symposium
ACOs:Much Ado about Nothing (?)
Moderator:Douglass G. Hewitt, Esq., Partner, Kubasiak, Fylstra, Thorpe &
Rotunno, P.C.
Panelists:Bradford A. Buxton, President, BTB Associates, LLC
Ciara Ryan Frost, Esq., Partner, Kerns, Frost & Pearlman, LLC
Kristin D. McMahon, Esq., Chief Claims Officer, IronHealth
The Patient Protection and Affordable Care Act (“PPACA”)
Public Law 111 -148, signed March 23, 2010
Overview of PPACA
• Sweeping 2,000+ page overhaul of U.S. health care system (not including the implementing regulations, some of which remain to be issued/finalized)
• Aims to reform health care:♦ delivery♦ financing♦ insurance
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Key PPACA Objectives
• Access to health care for all Americans• Improve quality of health care
• Lower cost of health care
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PPACA Timeline
• Staggered deadlines for implementation between 2010 and 2018
• Myriad regulations issued since PPACA passage• Judicial challenges to PPACA
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Title III – Improving The Quality and Efficiency of Health Care
• Strives to transform the U.S. health care delivery system:♦ links payment to quality outcomes under Medicare♦ creates Center for Medicare and Medicaid Innovation (CMI)♦ Accountable Care Organization (“ACO”) initiatives
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Chicago - March 29-30, 2012
2012 PLUS Medical PL Symposium
ACOs
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Three Letter Acronym of the Year
Hot Topic in American Health Policy
Chicago - March 29-30, 2012
2012 PLUS Medical PL Symposium
ACOs Defined
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A group of physicians, hospitals and other healthcare providers who assume responsibility for the quality and cost of healthcare for a defined population attributed to them on the basis of patients' use of healthcare services. If the ACO meets quality benchmarks and reduces per-beneficiary spending below what would otherwise have been expected, it will receive a share of the savings
Chicago - March 29-30, 2012
2012 PLUS Medical PL Symposium
Impetus for ACOsAmerica’s Broken Health System
• US health expenditures -$2.6 trillion in 2010, over ten times the $256 billion spent in 1980
• Health care accounts for 16% of the US GDP, the highest among the world’s industrialized nations without improved outcome
Ineffective System for Paying Healthcare Providers• Payment for volume on a fee for service basis rather than for value on a fee for
outcome basis.
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Impetus for ACOs (cont’d)
“In the US, we hold no one accountable for our problems. Accountability is as fragmented as care, itself; each separate piece tries to craft excellence, but only within its own walls.
Meanwhile, patients and carers wander among the fragments. No one manages their journey, and they are too often lost,
forgotten, bewildered.” - Dr. Donald Berwick, former CMS Administrator
Source: Donald M. Berwick, “A Transatlantic Review of the NHS at 60,” http://www.pnhp.org/news/2010/may/a-transatlantic-review-of-the-nhs-at-6-, July 1, 2008.
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Chicago - March 29-30, 2012
2012 PLUS Medical PL SymposiumJa
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1200%
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810.0% 850.0% 850.0% 870.0% 900.0% 910.0% 940.0% 990.0%1040.0%1050.0%1050.0%1070.0%1110.0%1120.0%
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Source: Organization for Economic Co-operation and Development (2010), "OECD Health Data", OECD Health Statistics (database). doi: 10.1787/data-00350-en (Accessed on 14 February 2011).Notes: Data from Australia and Japan are 2007 data. Figures for Belgium, Canada, Netherlands, Norway and Switzerland, are OECD estimates. Numbers are PPP adjusted.
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THE PURPOSE OF ACOs
“The creation of ACOs is one of the first delivery-reform initiatives that will be implemented under the ACA. Its
purpose is to foster change in patient care so as to accelerate progress towards a three part aim: better care for individuals,
better health for populations, and slower growth in costs through improvement in care.”
-Dr. Donald Berwick
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Types of ACOs
• Medicare
1. Medicare Shared Savings Program (MSSP)2. Advanced Payment Model
• Commercial (Private Insurers/Payors Health Systems)
• Pioneer – Hybrid Advanced Model
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The Shared Savings Proposed Rule
• Issued March 31, 2011• 65 Quality Measures• 2 alternative tracks (one-sided, shifting to two-sided in year 3 and
two-sided)• 2% threshold above minimum savings rate of 2%-3.9%• Maximum Shared Savings Cap: 7.5% or 10%• 25% withhold by CMS for years 1 and 2
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Response to the Medicare Shared Savings Proposed Rule
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Medicare Shared Savings Program (MSSP)• MSSP ACOs must meet HHS/CMS eligibility criteria, including:
♦ assume responsibility for Medicare patient population of 5000 or more beneficiaries for at least three years
♦ adequate primary care physician participation ♦ a formal legal structure for receipt/distribution of shared savings♦ shared governance over clinical and administrative processes; and ♦ processes to promote evidence-based medicine, coordinated care and
patient engagement
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Medicare Shared Savings Program (MSSP) (cont’d)
• If the ACO’s costs are lower than the benchmark set by the MSSP, it receives (in addition to normal fee for service payment amounts) an additional payment that reflects a portion of the savings
♦ Track I Model: Shared Savings Only♦ Track II Model: Shared Savings and Shared Losses
• By the end of 2012, at least 2,000,000 people are expected to be enrolled in MSSP ACOs
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The Shared Program Final Issued October 20, 2011
• 33 quality measures
• 2 alternative tracks (one sided for all 3 years and two sided)
• No 2% threshold above minimum savings rate of 2 to 3.9% (i.e., First dollars savings)
• Increase in maximum sharing rate: 50-60%
• Maximum Shared Savings Cap: 10-15%
• No 25% withhold by CMS
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Advanced Payment Model
• Part of the MSSP
• Provide additional support to physician-owned and rural providers who would benefit from added start-up capital to establish the needed infrastructure in the form of additional staff or information technology
• Upfront funding by CMS’ Innovation Center of $170M to support up to 50 ACOs
• Eligible participants must be:
♦ ACOs that do not include any inpatient facilities and have less than $50 million in total annual revenue; or
♦ ACOs in which inpatient facilities are critical access hospitals and/or Medicare low-volume rural hospitals and have less than $80 million in total annual revenue
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Commercially/Privately Sponsored Accountable Care Collaborations
• Private Payors including BCBS Plans, large for profit health insurance carriers (e.g., CIGNA, AETNA) and health care systems launching pilot programs across the country
• Radical departure from traditional fee for service approach• CareFirst Blue Cross Blue Shield, dominant insurer in the
Washington DC • Advocate Health Care (Chicago based) and BCBS IL formed one
of the nations largest ACOs, AdvocateCare22
Pioneer ACO Model CMS Innovation Center initiative
Eligibility-healthcare organizations experienced in providing coordinated, patient centered care to Medicare beneficiaries (a minimum of 15,000 Medicare Part A and B beneficiaries) in an ACO type environment
Approximately 32 organizations have been designated as Pioneer ACO Models including: Banner Health, Beth Israel Deaconess, Dartmouth Hitchcock, and Presbyterian Healthcare Services.
Differences between Pioneer ACO Model and MSSP:
♦ First two years of Pioneer are shared savings payment with higher levels of savings and risk than Shared Savings Program;
♦ By end of second year, Pioneer ACO must enter into similar payment contracts with insurers and health plans constituting 50% of ACO revenue.
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Common Characteristics of Successful ACOs
• Broader patient access to care, including extended evening and weekend hours
• Case management and Disease management services
• Electronic Medical Records to better track medical history
• Embedded Care Coordinators
• Data Analytics
• Shared savings and in some cases losses with the Payor of medical services
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Chicago - March 29-30, 2012
2012 PLUS Medical PL Symposium
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ACO Configurations Abound
ACO
Health System
MedicalGroups
ACO
Medical Groups
HospitalHealthInsurer
ACOs—Initial Barriers to Entry
• Antitrust concerns
• Start Up Costs—IT Technology
• Ability of specialists and primary care physicians to work together and accept a reallocation of healthcare dollars therein increasing the reimbursement levels of primary care physicians
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Are ACOs Different Than HMOs?• ACOs have quality metrics that were not part of the Managed
Care model of the 1990s
• ACOs do not purport to limit patient choice of providers or act as gate keepers to prevent patients from specialist care
• Specialist care is encouraged; although will be more closely followed by the primary care physician
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Sample ACO Organizational Components:
Health
System/Hospital
Potential
Partners
Hospitals, Diagnostic/ Therapeutic Service
Centers
ACO Resources Physician Organizations
Alternate Health Service Organizations
Health Information Communication Connectivity Network
EHRs, Interfaces, Communication Hubs
Patient Centric CDRs (Beneficiary)
Population Health Data Warehouse
Call Centers
Care Coordinators
Employed Groups
PHO Physicians
Aligned Physicians – Ind
Physicians - Ind
Specialists
FQHCSafety Net
MS
MS
MS
Not MS
MS
Potential
Partners
system
Connections PMS EHR Claims
clearinghouse
Information Results Reports Orders Scripts Referrals Eligibility Claims Appointments CCRs Other
LTCSNF
HomeHealth
Hospice
ClinicalPharma
HomeBasedCare
RehabCenter
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Provider-Payor Challenges
• Current Market-Place
• What’s to Come in Reform
• Payment migration and Provider Accountability
• What it takes to win
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Reform has sparked reform. But results won’t happen without reduction in costs.
At its roots, the ACO model is about changing the reimbursement structure of the U.S.
healthcare system toward one that pays for the quality of care delivered (and, by
derivative, the outcomes achieved) versus the units of service provided.
- Beyond ACOs: The Pending Risk Shift to Providers, William Blair
Hospitals with strong market power and higher private-payor and other revenues have less
pressure to constrain their costs. Thus, these hospitals have higher costs per unit of service, which can lead to losses on Medicare patients.
Hospitals under more financial pressure—with less market share and less ability to charge higher private rates—often constrain costs and can
generate profits on Medicare patients.- MedPac, Health Affairs, May 2010
Blue Shield of California gives $20M in ACO Help
- Healthcare IT News, October 18, 2011
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Market Environment | Health Reform
2012 Highlights
Encouraging Integrated Health Systems
Linking payment to quality outcomes
Reducing avoidable hospital readmissions
2013 Highlights
Improving preventative health coverage
Encouraging provider collaboration Increasing Medicaid for primary care Fee for patient-centered outcomes
research
Health care organizations can expect to see impacts to their customers, products, markets, and margins .
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ACOs require a shift in provider accountability and a migration from focus on revenue cycle management to cost management
Source: Healthways 2010
Revenue Cycle Management Cost Management/liability
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The current system cannot sustain itself without a focus on cost management and lowering
the total cost of careHospitals and Specialists
Improved Patient Care Efficiency Use of Lower-Cost Treatments Reduction in Adverse Events Reduction in Preventable Readmissions
Primary Care Practices
Improved Prevention & Early Diagnosis
Improved Practice Efficiency Reduction in Unnecessary Testing
and Referrals Reduction in Preventable ER Visits
and Admissions
$Lower Total Health
Care Cost
All Providers
Improved Management of Complex Patients
Use of Lower Cost Settings & Providers
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Requirements for Success• As provider risk expands, requirements for risk management become more complex:
• Reimbursement and Network Management: ♦ Multiple risk sharing arrangements from global rates to percent of premium, network
contracting and management• Care/Population Management:
♦ HIS, PCMH, IOP, Data Integration (EMR), Nurse Managers • Administration
♦ MSO Services (claims, eligibility, etc.)• Financial/Risk Management
♦ Risk based capital, actuarial, underwriting, financial reporting, compliance and auditing
• Regulatory/Legal
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Requirements for Success | Lessons from the 1980s
In the 1980s when payors shared risk there were multiple provider failures and liability concerns.
• What level of risk assumed?
• When moving from fee for service to risk, what is impact on cost delivery structure?
• Does the Integrated Health System cover all services necessary to assume risk?
• Do patient coverage policies outline expectations for members re: coverage and delivery expectations?
• Role of insurance company versus delivery system in risk arrangement (reinsurance/liability/coverage)?
• Role of Partners (administrative, ownership, risk, etc.)
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The landscape is complex and choosing partners requires understanding oneself and the target partner. Three types of partners meet different sets of needs.
• Vertical:♦ Knowledge and tools for managing care (administrative services)
• Horizontal:♦ Partners include other hospital systems, organized physician
entities, and community organizations within target service areas or clinical specialties
• Global:♦ Global Partners are entities who bring attributes of both horizontal
and vertical partners
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Structure + High Value Efficiencies = Ability to Take Risk and Increase Margin
Providers and payors require a structure in the new, transformed state• Leadership must determine how broad they want to provide their
integrated health system services• Determine organization (i.e. physician vs. strategic partnership)
Providers must consider the balance between geography and provider services offered• Evaluate services, people, contractual status (risk/no risk) by
geographical regions
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Structure + High Value Efficiencies = Ability to Take Risk and Increase Margin
• Providers must inventory what tools, skills and capabilities they have today, determine the gaps in current systems and how to fill those gaps♦ Understand what is required and how to fulfill need in technology, people
and organization (buy, build, partner)
• Understand best partnership options in order to build a effective and efficient risk taking network♦ Also define who owns lives today to help access network and partnership
options. Is it realistic to have a competitor also be a partner?
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ACO Liability Exposures• Vary, depending on the:
♦ Activities/services of the ACO and its constituentparticipants
♦ ACO’s organization/legal structure, and
♦ Applicable state law
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ACO Liability Exposures• Similar to historical MCO liability exposures in many respects,
except:
♦ patients may obtain care from providers outside the ACO without any cost or coverage penalty,
♦ financial incentives are tied to quality performance metrics
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ACO Liability Exposures
• Some heightened exposure based upon ACO’s:♦ ‘accountability’ for quality of care♦ increased involvement in coordination of care♦ increased control over ACO participants
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Activities/Services Most Likely to Give Rise to Claims Against ACOs
• Medical treatment• Coordination of care/case management• Medical necessity or other coverage determinations• Utilization review (if applicable)• Provider selection / contracting / termination / payment• Claims processing/payment (if applicable)• Billing• Employment practices• Compliance with state and federal laws, including HIPAA, HITECH and PPACA
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Common Sources of ACO Liability (Claimants)
ACO
Competitors
Regulators
Employees
Other(e.g., payor,
vendor)
Patients
Providers
Patient Claims Against ACOs• Medical negligence (direct or vicarious liability)• Negligence or misconduct in:
♦ utilization review♦ case management/coordination of care♦ selection/peer review/credentialing of participating providers♦ medical necessity or coverage determination
• Breach of contract• Breach of fiduciary duty (including failure to disclose financial incentives)• Breach of privacy• Other (including statutory violations)
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Provider Claims Against ACOs
• Breach of provider contract
• Negligence or other misconduct related to:♦ provider selection/contracting♦ provider deselection/termination♦ provider compensation, including bonus or incentive
payments
• Cross-claims for indemnification
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Regulator Claims Against ACOs• Violations of:
♦PPACA (Note PPACA penalty provisions)♦False Claims Act or other federal fraud and abuse
laws♦Federal or state antitrust laws♦HIPAA, HITECH or other federal or state privacy laws♦State licensure, solvency or other laws
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Employee Claims Against ACOs (including Claims by employed providers)
• Wrongful termination• Discrimination• Breach of contract• Misrepresentation• Whistleblower claims alleging False Claims Act violations
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Competitor Claims Against ACOs
• Violation of federal or state antitrust laws (Note, Final ACO Antitrust Policy Statement provides for an Antitrust Safety Zone)
• Unfair competition
• Tortious interference with contractual or business relations
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New or Heightened Exposures Après PPACA
• Violation of PPACA or implementing regulations:♦ MLR rebate obligations♦ Penalties for non-compliance with claims processing and
appeals regulations♦ Other
• Compliance is key
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Chicago - March 29-30, 2012
2012 PLUS Medical PL Symposium
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ERISA Preemption in the Wake of PPACA?
Increase in PopulationInsured Under IndividualHealth Policies
ERISA Preemption Defense
Relationship Between PPACA, ERISA And OtherFederal and State Laws?
• Interplay between PPACA and other federal and state laws unclear in many respects
• PPACA preserves ERISA preemption, but ERISA does not apply to individual health insurance markets
• PPACA preempts state laws that would “prevent the application of” Title I♦ Sets a “floor” for state regulation♦ Does not preempt state licensure, solvency and other ‘health-insurance
laws’• Full employment for lawyers
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Chicago - March 29-30, 2012
2012 PLUS Medical PL Symposium
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Newton’s Law of Motion
For every action, there is an equal and opposition reaction.
Chicago - March 29-30, 2012
2012 PLUS Medical PL Symposium
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Increase in Integration of and Coordination by Providers
Liability for medical and managed care mishaps Antitrust Exposure
Chicago - March 29-30, 2012
2012 PLUS Medical PL Symposium
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Effects of PPACA on Health Insurance Market
PPACA Litigation
TraditionalManaged CareLitigation
Regulatory Activity
Litigation Over Historically Controversial Health Insurer Practices Should Decline As PPACA Eliminates Or Regulates Those Practices
• Lifetime and annual limits
• Rescission (post claims underwriting)
• Explanations of coverage, including disclosures of cost-sharing, common benefit scenarios, provider payment methodologies (“usual customary and reasonable rates”)
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Insurance Coverage & ACOs • Types of Exposures Presented
♦ D&O ♦ E&O♦ Professional Liability♦ Third and First Party Privacy Protection♦ General Liability ♦ EPL♦ Fiduciary
• Critical to understand the ACO’s corporate structure
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Insurance Coverage & ACOs
Necessary to perform GAP analysis to determine whether existing healthcare entity’s Insurance Program provides seamless coverage to the ACO activities
Policy exclusions could vitiate coverage if an insured provider files suit against the ACO challenging compensation or bonus structure (e.g., Insured v. Insured)
Consider purchase of separate stand alone product to expressly cover ACO Services and corresponding liability exposures
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US Supreme Court to Rule on Two Major PPACA Provisions
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• Individual Mandate
• The Medicaid Expansion
Douglass G. Hewitt Ciara Ryan Frost, Esq.Kubasiak, Fylstra, Thorpe & Rotund, P.C. Kerns, Frost & Pearlman, LLC20 S. Clark Street, 29th Floor 70 West Madison, Suite
5350Chicago, IL 60603 Chicago, IL 60602(312) 630-9600 (312) [email protected] [email protected]
Bradford Buxton Kristin D. McMahon, Esq.BTB Associates, LLC Chief Claims Officer594 North Woodland Lane IronHealthNorthfield, IL 60093 175 Powder Forest Drive(847) 400-7450 Simsbury, CT [email protected] (860) 408-7812
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