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Jeffrey Baird
chairman, Health Care Group, Brown & Fortunato

Editor’s note: This is the last (Part V ) in a series of commentaries on audits. Also read Part I, Part II, Part III and Part IV.

No matter how you look at it, the contractors are out of control. Examples include: instructions by a ZPIC to the four DME MACs to suspend payments to a supplier because the ZPIC is dissatisfied with the supplier’s documentation and because the ZPIC asserts (without substantiated evidence) that the supplier is violating the telephone solicitation statute; placement of a supplier on a 100% prepayment review because the contractor does not feel that the medical necessity documentation is sufficient; and a supplier having to respond to the same audit request for the same patient on multiple occasions.

Specific contractor abuses

•    There is a glaring failure of CMS oversight of the ZPICs. CMS does not have the staff (with sufficient experience) to know if the ZPICs “are doing things right.” This is compounded by the fact that, too often, a ZPIC contractor has no experience in the areas of fraud and abuse that it is investigating. This lack of knowledge results in incorrect policy applications, errors in data analysis, and unnecessary audits, reviews and investigations.

•    A contractor will disregard medical necessity documentation that is contemporaneous with the physician’s order. There have been a number of incidents in which a CERT contractor has disregarded medical documentation created contemporaneously with the initial order and, instead, requires suppliers to submit patient records that document medical necessity on the date of service that the CERT contractor is auditing.

•    Contractors interpret CMS instructions (pertaining to LCDs and NCDs) to mean that suppliers must document, in unrealistic detail, every element of the coverage criteria in the LCD. The result is that supplier must document ancillary LCD provisions that, in and of themselves, do not affect coverage for the DMEPOS item. In short, contractors are looking for documentation that reflects, word-for-word, the language of the LCD. It is impossible for physician records to recite words and phrases from an LCD with the cookie-cutter precision that the contractors demand.

•    Contractor staff is prohibited from using “clinical judgment” (or “clinical inference”) in reviewing documentation. DME MACs and ZPICs employ clinical staff; unfortunately, the staff has no ability to exercise their clinical expertise. This lack of clinical inference can lead to ridiculous results.

•    There is a lack of consensus among contractors, and even among auditors working for the same contractor, regarding what documents establish medical necessity. Some, but not all, contractors interpret CMS’s audit strategy as a mandate to audit every statement in an LCD no matter how remotely the statement affects coverage of the item. This interpretation results in requests for information that are not relevant to the determination of medical necessity. The same phenomenon occurs within a single contractor: One auditor will adopt a hyper-strict interpretation of what the LCD requires, while another auditor will not take such a strict view.

•    Too often, ZPICs request hundreds of medical records on short deadlines without any explanation about why the documents are being reviewed. ZPICs are not receiving appropriate oversight and monitoring from CMS to ensure that they are complying with CMS guidelines for medical review. Further, the ZPICs are not affording suppliers even the most basic procedural protections set out it in the Program Integrity Manual. This creates hardships for suppliers that remain indefinitely on prepayment reviews.

Responsive steps by the industry

AAHomecare has taken the leadership role in confronting contractor abuses. It has gathered evidence of contractor abuse from multiple HME providers. Through its various committees and councils, AAHomecare has met with CMS on multiple occasions. At these meetings, AAHomecare has presented examples of contractor abuse. AAHomecare has also submitted a detailed white paper to CMS that outlines the problems discussed above and suggests solutions.

State DME associations have been aggressive in presenting the problems to their elected U.S. representatives and senators. VGM and The MED Group have encouraged their members to lobby their elected representatives. Stakeholders have submitted white papers to the Senate Finance Committee that detail contractor abuses.

At the end of the day, it is important for HME providers to educate their customers and physicians regarding the problems that the suppliers are encountering with audits. History has shown that CMS often turns a deaf ear to complaints by providers. To a lesser extent, Capitol Hill does the same. However, when a Medicare beneficiary and/or a physician complains, CMS and Capitol Hill listen.

Jeffrey Baird, Esq., is chairman of the Health Care Group at Brown & Fortunato, P.C., a law firm based in Amarillo, Texas. Reach him at 806-345-6320 or

Travis Conn
Communications manager at Grace Healthcare

The following guest commentary expresses a few things that I have learned during my first six months in the HME industry. For some readers, what follows is surely well-known. Others may shake their heads in disagreement. But this commentary isn’t really for them. This commentary is for those just entering the industry like me.

1. Rural providers, like my company Grace Healthcare, needn’t follow the same business model as national providers. It is typical when entering a new and unfamiliar industry to look toward larger and, oftentimes, more profitable companies as the standard bearer whose business model should be followed closely. However, unlike larger corporate providers, providers servicing rural areas have a tendency to understand their mission in terms other than profit, loss and dividends. The primary question they address is: “How can we be better stewards of our community?” To be sure, a profitable company is necessary in order to be a community asset. But corporate visibility is higher in cities with smaller populations; accordingly, every act a company undertakes (or does not undertake) is magnified. Margin for error is thin. At the same time, though, higher visibility makes doing-the-right-thing more profitable, and can, in turn, increase revenue.

2. The retail sale of HME products is wholly different from the retail sale of other commodities. For novices with either much or little retail background, your experience in other retail environments will likely leave you unprepared for HME sales. In many ways, retail sales of HME lags far behind other retail sectors. From my experience, the POS systems are less user-friendly and more time consuming to learn. Additionally, replenishment times are much slower than in other industries. Finally, you are going to have to learn an entire new vocabulary filled with industry jargon. All this can make for a frustrating transition for those new to HME retail. But with a little patience and perseverance, the novice should be quite capable of making the transition, and making it smoothly.

3. Have you heard of competitive bidding? If you are reading this newspaper then the answer is probably yes. But you shouldn’t expect everyone to be familiar with the bidding program. Competitive bidding’s ramifications are not well understood outside of the DME industry. I was assigned the task of overseeing the Round 2 bidding process for Grace Healthcare. Initially, I was under the impression that the bidding program was well-understood by providers, doctors and the public alike. It goes without saying that my expectations were unfounded. Not only were patients and members of the public unaware about competitive bidding but, to my great surprise, doctors were just as often uneducated about not only the ramifications of bidding, but the bidding program itself. And I do not believe that this is isolated to our experience here at Grace Healthcare.

4. The HME industry is more fragmented, not less, than other industries. While competitive bidding is sure to chip away at the fragmentary nature of the industry, it is still likely to be a more competitive industry than, say, the multimedia or publishing industries. The novice should take a quick glance through his or her local yellow pages and take-in the sheer volume of HME suppliers servicing customers in his or her location. This little exercise can be eye opening. And, if you were in a Round 1 competitive bid area, look at the yellow pages from before and after contracts were awarded to get a quick understanding of the significant changes that competitive bidding has had and will continue to have. You are sure to see a significant drop in the number of HME businesses in your community.  

5. Despite what you think, brand positioning and brand awareness should be the role of your advertising department. After all, do you really expect a flood of new customers from running a new television spot on your company’s selection of diabetic shoes and strips? The products we sell are not items that are purchased with disposable income. No, you want the customer to choose your business at the moment they need durable medical equipment. And to accomplish this you must distinguish yourselves from your competitors, and this is the task of branding. Of course, advertising can be a part of your total marketing strategy, but expect to channel the majority of your advertising dollars into branding your company. And don’t make the mistake of assuming that you are already sufficiently branded! If Coca-Cola still believes in the need for branding their products, then maybe you should too.

Travis Conn is the communications manager at Grace Healthcare. Reach him at 228-248-4275 or

Edward Vishnevetsky
health law and litigation lawyer, Munsch Hard

While most of the country is focused on the effect of the U.S. Supreme Court’s decision on the future of health care, one issue remains more pressing to healthcare providers and regulatory enforcement bodies: fraud and abuse. The public seems thrilled every time they see a new report showing millions of dollars in overpayment audits collected from Medicare providers. However, what they do not realize is that a significant portion of the alleged overpayments comes from providers who shut their doors or file for bankruptcy because they cannot afford to continue fighting an audit system that is intent on destroying them. For years, providers have complained about the fundamental unfairness of the audit system and the lack of transparency, to no avail. Finally, it appears as if someone is listening.

On May 2, 2012, the U.S. Senate Finance Committee sent a letter to members of the healthcare community requesting recommendations on “how to better prevent and combat…fraud, waste and abuse in the Medicare and Medicaid programs.” Industry stakeholders were urged to prepare white papers based on their individual experience in one or more of the following four areas: (1) program integrity reforms to protect beneficiaries and prevent fraud and abuse; (2) payment integrity reforms to ensure accuracy, efficiency and value; and (3) fraud and abuse enforcement reforms to ensure tougher penalties against those who commit fraud. White papers were due to the Senate Finance Committee by June 29, 2012.

What makes this request notable is that it is the first time (at least in recent history) the Senate Finance Committee has ever reached out, publicly, to the healthcare community for suggestions. This unprecedented move demonstrates the Senate Finance Committee is commitment to addressing impropriety, inaccuracy, and lack of objectivity in the way fraud and abuse is fought. Given the state of the DME industry, this could not have come at a better time.

For DME providers, the majority of problems stem from the manner in which audits are conducted. Auditing contractors, including ZPICs and RACs, put providers on 100% prepayment audit for unknown reasons and provide no clarity or guidance on how to be removed. Then, if the providers are lucky enough to be removed from prepayment audit, the auditors use absurd extrapolations to demand millions in post-payments. For many, these post-payments go back to claims submitted in 2004, and maybe even earlier. Even larger providers can only afford to appeal these audits for so long before their financial reserves are depleted.

Among the white papers submitted by DME providers, there were several common recommendations:

Competitive bid winners should not be automatically audited because of increased claim submissions;

CMS should promulgate objective criteria/benchmarks established to define how and why a provider is placed on prepayment audit, and how a provider can be removed from prepayment audit;

CMS should reinstitute CMNs for all equipment or create standardized forms for physicians to fill out that establish medical necessity;

Suppliers should be allowed to respond to beneficiary/former employee complaints that lead to an investigation;

CMS should educate physicians on information that must be in a patient’s file or progress note to establish initial and continued medical need and continued use;

Suppliers should not be required to second-guess a physician’s medical opinion in order to establish medical necessity; and

Auditors should not be able to deny claims that have received advance determination of Medicare coverage (ADMC) approval by the DME MAC.

It is anticipated that the Senate Finance Committee will review the white paper submissions within the next six months and prepare a report outlining the most significant issues raised by all healthcare industry stakeholders.

Interestingly, on June 26, 2012, the Senate Finance Committee sent a letter to Gene Dodaro, the U.S. comptroller general, requesting that the Government Accountability Office (GAO) conduct a study that focuses on coordination efforts between auditors and CMS.

Given the level of scrutiny already placed on auditors by the Senate Finance Committee, within the next year, we expect to see significant changes in the audit process and the way in which fraud and abuse is fought in this country.

Edward Vishnevetsky is a health law and litigation lawyer at Munsch Hardt. Reach him at or 214-855-7546.

Kimberly Lilly
corporate communications specialist, National Seating & Mobility

For the past 30 years, Shelly Torres West has served on the front lines of the seating and mobility industry, mostly as a rehab technology supplier (RTS) and technician. She has experienced first-hand the changes made within the industry, the impact the seating and mobility industry has on its clients, and exactly how hard work, compassion, and simply caring can go a long way at making a life better.

In the beginning…

In December, Shelly will retire from a 30-year long career. She accidentally entered the seating and mobility industry in 1982 while serving as a building maintenance person for a facility serving mentally challenged adults.

“People kept coming to me with wheelchair problems and I’d say, ‘I can’t get parts!’ I kept taking them apart and trying to put them back together, but I couldn’t get the parts I needed,” shared Shelly.

A tip to call her now long-time friend and colleague, Sara Moore, who at the time worked at Denton State School, is what would begin Shelly’s career in the seating and mobility industry.

“People said she [Sara Moore] worked with wheelchairs and so I called her and she started helping me fix the wheelchairs,” Shelly said.

Shortly afterward, Shelly and Sara started a business together, opening a company they named “Adaptive Systems Unlimited.” After nearly eight years, they ended the business and both went to work for the Dallas Rehab Institute.

“They hired both of us and then about two years afterward Dallas Rehab decided that they didn’t want to run a DME out of their hospital, so they shut it down. Lo and behold, here comes National Seating & Mobility (NSM) to town,” Shelly said.

Making an impact…

NSM is where Shelly currently works and where she will retire from in December. NSM hired Shelly as a technician, but soon moved her into the role of an RTS. She has served as an RTS for the past 17 years, traveling daily to clients’ (she refers to them as her “kids”) home or school to evaluate and fit them for appropriate seating and mobility equipment.

“Our dream is to be put out of a job, but it’ll never happen. Kids survive tragedies, they survive birth defects, and they survive all of these things because of modern medicine. As long as that’s happening we’ve got to do everything we can to make their lives better,” said Shelly.

Her career serves as proof that she works hard to do just that. Recalling her best memory on the job, Shelly remembers a young girl who had laid flat on her back all of her life.

“We’d delivered a power chair to a young lady. She was in the fifth grade and she’d always laid flat. When we put her in her power chair she was able to sit up a little bit and she yelled, ‘I can see your feet!’” Shelly said.

A few days after getting the young girl settled in her new power chair, Shelly and a coworker accompanied the girl and a few of her friends to a special event at a skating rink for a case study she was completing for an NSM Symposium.

“She was allowed to drive her chair on the skating rink floor. And so all of her friends hooked onto that chair and made this long line and she was pulling them all around the skating rink. It was great! She was independent and she’d never been independent before. That was one of the greatest moments of my life.”

Change, change, and more change…

With Shelly, there is no shortage of memories or moments in the seating and mobility industry. She remembers the industry from 30 years ago when technicians did everything, including assembling seating and mobility systems from start to finish.

“I mean we used to cut the wood, cut the foam, glue the foam on, and upholster it. We did everything from scratch, so when we actually started being able to order parts and seating systems, it was a really wonderful thing,” Shelly said.

Shelly also remembers when it was much easier to get funding for equipment, recalling Texas as once being one of the better states in the nation for funding and one in which it was easier to get parts for clients.

“One of the most difficult things [about the job of an RTS] is the frustration—trying to get something for a client that you know will impact their life and make it better. But when it comes to funding you’re running into a brick wall.”

One thing that has not changed, Shelly assures, is the paperwork. To put it simply, “There’s always too much paperwork,” she said.

“Also, there’s always a kid in need. There’s always a challenge ahead. That will always remain the same,” Shelly said.

Hard work, compassion and caring…

Despite changes and challenges, Shelly continues to put her best foot forward in her role as an RTS for NSM. She describes her most important responsibility as an RTS as “putting the client’s needs first.”

“When I’m working with a family and evaluating a child, when they’re getting their very first wheelchair, it’s really emotional sometimes. It’s hard for the family and I think that how we (RTSs) handle ourselves and the face that we present in the situation is critical. I look at it as an opportunity to show compassion, care and concern. And that changes me,” Shelly said.

Shelly’s hard work and faithful service is far from unnoticed. In May, NSM CEO Mike Ballard awarded Shelly NSM’s “Lifetime Achievement Award.”

“I love Mike Ballard. I just love him with all my heart. At first when he said my name, I got a little nervous. I said, ‘Oh crap, I’m in trouble.’ Then, I realized—Oh! He’s going to tell people I’m retiring. But I didn’t realize he was going to honor me with the Lifetime Achievement Award!”

Moving on…

Come December when retirement is in full swing, Shelly says she will miss her NSM family, therapists, reps, and personnel from the manufactures and vendors she has worked with. She will especially miss Sara Moore—yes, the same one who helped her fix wheelchairs back when she served as a maintenance person struggling to get wheelchair parts. NSM hired Sara Moore at the same time as Shelly and she is a part of the NSM family Shelly will leave in December.

“It’s going to be really different for me to not work with Sara. She helped deliver my son; she was there when my house burned down. She’s been there for everything. It’s going to be different,” explained an emotional Shelly. “It’s a good thing she lives nearby.”

Different it will be, and in a number of ways. Not only will Shelly not move forward with her partner-in-“care,” Sara Moore, but once retired she’ll spend her time driving kids to school as a part-time school bus driver during the mornings and afternoons, serving as an independent business owner in between, and entertaining as a Jazz singer by night.

“Since I made the decision to leave National Seating & Mobility, more and more music has been coming my way. So I’m very excited about that,” Shelly said. “My life is going to still be full, only I won’t have to go home and do paperwork!”

Kimberly Lilly is a corporate communications specialist with National Seating & Mobility. Reach her at

Chris Calderone
president and founder of Lean Homecare Consulting Group

As leaders, we are routinely called upon to perform the “routine”—those everyday tasks and activities that comprise a leader’s typical day.
For example, a team lead or a supervisor may start their day by doing common daily tasks such as viewing reports, meeting with their direct manager/director, following-up on e-mails, responding to voice mails, and dealing with previous requests, etc.
Another important daily task for all leaders is (or should be) the daily “Gemba” walk. (Gemba is a lean term meaning “where the work takes place” or “real place.”) 
A Gemba walk is a simple tactic that can increase your visibility and give you an ideal opportunity to connect with you team members. Much like rounding, a Gemba walk is about presence. A best practice is to do a Gemba walk during peak activity times.
Many of you already sit in the “Gemba” with your teams—if you don’t, then make sure you are walking through the work area at least once per day.
All of these routine tasks can be considered standard work for leaders.
As a leader, you can clearly convey the importance of standard work by creating a leader checklist that includes all of the routine leadership tasks that you do on a daily basis.
I can think of many important tasks that should be listed, including doing huddles, engaging in staff rounding, and doing Gemba walks, etc. Also, consider dropping in on your high-performers. While you are at it, drop-in on your low performers, too.
What will you do today, and everyday, to either move the low performer up or out? And don’t take for granted that your high performers will always want to stay—sometimes you have to “re-recruit” your high performers.
Remember, the only thing worse than a high performer that leaves is a low performer that stays.
It is also a good idea to consider taking advantage of at least one teachable/coachable moment everyday as part of your leader standard work.
When taking advantage of a teachable moment, consider the following:
·         Did a process breakdown? How?
·         Did someone miss something? What is a human issue or a system/process issue?
·         Did you drill down to root cause(s) and share lessons learned so the error is less likely to reoccur?
I can’t think of a more effective method for conveying the importance of, and your commitment to, standard work than developing a Leader Standard Work Checklist.
As a leader, what would you include on your checklist?

Chris Calderone is president and founder of Lean Homecare Consulting Group. Reach him at or 737-709-5487

By Robert Steedley
Robert Steedley is vice chairman of the American Association for Homecare

Earlier this month, the home medical equipment sector had the opportunity to present the case against competitive bidding at a hearing before the House Ways and Means Health Subcommittee. The American Association of Homecare was represented, as was NAIMES. Both did a great job articulating the critical issues and concerns for providers and patients.

But unfortunately, as we have seen over and over, we also saw a split message presented to Congress. Also testifying was an Ohio provider who praised the bidding program and a group purporting to represent Medicare beneficiaries that also supports the current Medicare bidding system.

As I watched the video of the hearing, I tried to put myself in the place of the members of Congress listening to testimony. What were they thinking? Did they see a united sector working dynamically to improve a flawed program? Or did they see two very different points of view from within HME that left them wondering if one side is just whining? And then what comes next? Those members of Congress have to decide, even if the decision is to do nothing.

All of this left me deflated and angry, knowing about all the hard work that goes into HME meetings with members of Congress and their staff, the clear dangers that the bidding program presents to patients, the phone calls and emails. Plus there are a lot of humble, quiet providers who have worked tirelessly behind the scenes to furnish the best care possible to beneficiaries—while Medicare continues to make that job harder and harder. This shows a real disconnect between all this work to improve homecare policy on one hand and the efforts to derail the whole effort by a small handful of companies. Is AAHomecare in the minority? Does the HME sector want bidding to this bidding program to continue? These are the questions that every provider needs to answer now.

Any further dissent or split message is, in my opinion, a death sentence to a lot of HME providers, which will have terrible consequences for home-based care in America. And I don’t believe the burden should be on AAHomecare to get everyone on board. I want AAHomecare to spend its time and resources influencing policy that benefits the HME sector—not trying to corral its members or other providers.

How long can we tolerate a passive, hands-off attitude among HME providers? When is enough enough?

As an HME provider, I implore every HME company to get in the fight now! Membership with AAHomecare is the best course for supporting this fight. But if you choose not to be a member, at least don’t work against the very organizations and people who are working on your behalf. You can help by holding other providers accountable for their actions.

Time is short and our options are narrowing. But in the face of those factors, many people in our sector are throwing their full weight behind efforts to fix the bidding problem and preserve access to cost-effective care for our seniors.

Dave Bargmann
Social media consultant for Duckridge Advisors

While it’s a great thing that more and more companies are jumping aboard the social media bandwagon every day, most providers in the home medical/durable medical (HME/DME) arena still aren’t really grasping the point of doing so and, therefore, missing out on huge opportunities to engage the target audience (patient, referral source, etc.).

OK, so your DME organization may have a Facebook page with the bare minimums filled in and consider your organization social media savvy. That, folks, is not embracing social media.

There’s a finite distinction between social media marketing, and marketing via social media. Social media marketing requires a specific strategy, and most importantly, content designed for each individual platform.

Simply using social media to send out traditional “old school” marketing will not do the trick. When a provider distributes information on social networks, it is not social marketing, specifically if the provider is simply sending information on its latest products for sale, feeding miscellaneous news to its Twitter stream or asking people to simply “Like” your company on Facebook or “Follow” it on Twitter on a weekly basis. This becomes a one-way street that is simply forcing information out, versus engaging your patients and referral sources.

What you need to create is a two-way conversation!

While there are not that many DME providers on Twitter from my analysis, I follow as many that pop into the “Who to Follow” area (Twitter accounts suggested for you based on who you follow and more) and find most are doing social media without attempting to be social. Twitter is perfect for providing 140 characters that can engage your followers in conversation. And produce the end goal of being social via a very cost-friendly medium.

One-way social media marketing draws attention to the fact that you don’t know how to properly utilize this particular space, and that you haven’t taken the time to learn it, or find someone qualified to do it for you. This may gain you followers from the adult film arena, but not from your target audience!

Even more importantly, old-school marketing using new-wave techniques can have the tendency to be viewed as spam, and I haven’t met many that appreciate spam in any form.

Keep in mind, there is absolutely nothing wrong with using traditional marketing to get the word out about your offerings. Press releases, advertising, visits to referral sources, etc. are still extremely valuable for your overall marketing initiative.

Is your marketing sociable…or unsociable?

These days, you have to consider that traditional marketing was a one-way street. Providers would produce a press release, take out an ad in an industry-related or local newspaper or buy billboard space. Their customers would then view it in one of the aforementioned forms, then decide what, or if, they would do anything with the information. Then, based on analytics derived from history, a percentage would respond to the marketing techniques. But there was one important point…the customer could not talk back to these forms of marketing.

Now they can. Social media, in contrast to traditional marketing, is a two-way street. DME providers can still use Twitter and Facebook to distribute the same information they always have, but today, the customer now has the ability—and the willingness—to talk back.

This version of marketing actually permits your customer to tell you how your message is being received. Yes, you heard that correctly. They will tell you if it is right…or wrong! And while this can lead a DME owner to be scared stiff, it provides a lot of new functionality for providers to connect with their audience in new ways not available previously.

Remember, social media is not meant to replace the human touch or interactions with your customers. It provides forums to enhance the patient experience in ways never before available.

However, in the end, if you’re not listening, responding to and engaging with your followers via social media, you’re missing the point, and ultimately, a larger opportunity.

Elizabeth Hogue
private practice healthcare attorney

Section 302 of the Affordable Care Act (ACA) includes provisions related to Medicare payments to providers of services and suppliers that participate in Accountable Care Organizations (ACOs). Providers of services and suppliers who participate in ACOs will continue to receive payments under Parts A and B of the Medicare program, but will also be eligible for additional payments if they meet certain requirements related to quality of care and cost savings. The Secretary of the U.S. Department of Health and Human Services has published final regulations establishing ACOs as early as April of 2012.

The final regulations generally provide as follows: The ultimate goal of ACOs is to reward better value, outcomes, and innovations instead of just volume.

The purposes of ACOs are to:

  • Promote accountability for a patient population;
  • Coordinate items and services under Parts A and B of the Medicare Program; and
  • Encourage investment in infrastructure and redesigned care processes for high quality and efficient service delivery.

Groups of providers of services and suppliers that meet criteria specified by the secretary may work together to manage and coordinate care for Medicare fee-for-service (FFS) beneficiaries through ACOs. ACOs that meet quality performance standards established by the secretary will be eligible to receive payments for “shared savings.”

Patients who are assigned or “aligned” with physicians who participate in ACOs are not required to receive services from such physicians or from any other participants in ACOs. Patients who are aligned with physicians in ACOs still have the right to freedom of choice of all types of providers. CMS emphasizes this fact in commentary to the final regulations governing ACOs as follows:

“It is important to note that the term ‘assignment’ for purposes of this provision in no way implies any limits, restrictions, or diminishment of the rights of Medicare FFS beneficiaries to exercise complete freedom of choice in the physicians and other health care practitioners and suppliers from whom they receive their services. Thus, while the statute refers to the assignment of beneficiaries to an ACO, we would characterize the process more as an ‘alignment’ of beneficiaries with an ACO, that is, the exercise of free choice by beneficiaries in the physicians and other health care providers and suppliers from whom they receive their services is a presupposition of the Shared Saving Program.”

The following types of providers are eligible to participate in ACOs:

  • ACO professionals, i.e. physicians in group practice arrangements
  • Networks of individual practices of ACO professionals
  • Partnerships or joints venture arrangements between hospitals and ACO professionals
  • Hospitals employing ACO professionals
  • Such other groups of providers of services and suppliers as the secretary determines appropriate (emphasis added)

According to the commentary to the final regulations, ACO participants are defined as any Medicare-enrolled provider or supplier, including pharmacists.

Eligible groups of providers of services and suppliers must meet the following requirements to participate in ACOs:

  • Must be willing to become accountable for the quality, cost, and overall care of at least 5,000 Medicare FFS beneficiaries assigned to it.
  • Must enter into agreements with the secretary to participate in the program for at least three years.
  • Must have formal legal structures that allow receipt and distribution of payments for shared savings to participating providers of services and suppliers.
  • Must include primary care ACO professionals i.e. physicians and advance practitioners that are sufficient for the number of Medicare beneficiaries assigned to the ACO and ACOs must provide the secretary with information about participating ACO professionals.
  • Must put clinical and administrative systems in place and define processes to promote evidence-based medicine and patient engagement, to report on quality and cost measures, and to coordinate care.
  • Must demonstrate to the secretary that they meet criteria related to “patient-centeredness,” such as the use of patient and caregiver assessments and individualized care plans.

Reports related to quality must address care transitions across healthcare settings, including post-hospital discharge planning and follow-up by ACO professionals.
ACOs may also be responsible for excess expenditures.

At this point, ACOs seem to involve great opportunities as well as great risks. hme

Elizabeth E. Hogue, Esq., is a private practice healthcare attorney in Burtonville, Md. Reach her at 877-871-4062.