ACO Waivers

ACOs are entitled to exemptions from several laws, which for many years have promoted good care and prevented conflicts of interest:

1. Physician Self-Referral (Stark Law) prohibits doctors from referring Medicare patients to anyone who has a financial relationship with the doctor (some exceptions apply).
2. Federal Anti-Kickback Law prohibits payments for referrals under any Federal health care program. Safe harbors clarify what is and is not allowed.
3. Prohibition on Inducements to Beneficiaries prohibits gifts to Medicare or Medicaid patients to encourage them to use any particular provider (some exceptions apply)
4. Gainsharing Civil Monetary Penalty (CMP) has been amended so it no longer needs waivers in or out of an ACO. It now prohibits hospitals from paying doctors to limit medically necessary care for Medicare or Medicaid patients.

The waivers let hospitals and doctors in an ACO reward doctors for referring to certain specialists and hospitals, even if the doctor thinks the best referral would be somewhere else, as long as the ACO says they advance any "one enumerated purpose... we continue to define the purposes of the Shared Savings Program...

• promoting accountability for the quality, cost, and overall care...
• managing and coordinating care...
• encouraging investment in infrastructure and redesigned care processes for high quality and efficient service delivery for patients... we continue to interpret the purpose of “efficient service delivery” to include, among other things, appropriate reduction of costs to, or growth in expenditures of, the Medicare program, consistent with quality of care, physician medical judgment, and patient freedom of choice."

ANTI-TRUST

The Justice Department has issued policies protecting ACO members from anti-trust enforcement if they cooperate in an ACO with up to 30% of the local market.