On November 3, 2011, the Centers for Medicare & Medicaid Services (CMS) published the "Final Rule" setting forth the parameters for Accountable Care Organizations (ACOs) to participate in Medicare Shared Savings Program (MSSP). One of the concerns of specialist physicians who are interested in joining an ACO is their ability to participate in more than one ACO. In the Final Rule, CMS included provisions that provide flexibility for specialists to participate in multiple ACOs. However, practically speaking, they may not have as much flexibility as the Final Rule appears to provide. This article discusses a practical problem specialist physicians face if they seek to participate in multiple ACOs.

The Final Rule defines an ACO as a legal entity that has a certain Taxpayer Identification Number (TIN), and which is comprised of one or more "ACO participants". An ACO participant is an individual or group of provider(s)/supplier(s) (e.g. hospitals, physicians, and others involved in patient care) that are identified by a Medicare-enrolled TIN. An ACO provider/supplier is defined as a provider or supplier who is enrolled in the Medicare program and bills on a fee-for-service basis under a billing number assigned to an ACO participant's TIN.

As part of its application to CMS, a prospective ACO is required to submit a list of its ACO participants and their associated ACO providers/suppliers, and identify those providers/suppliers who are primary care physicians. Further, the ACO participants and the providers/suppliers are, prior to the filing of the ACO application, required to sign agreements or contracts relating to participation in the ACO. Essential to the successful operation of the MSSP is CMS' ability to gather and analyze claims and other information submitted to CMS by an ACO participant through its billing TIN. This data will be used by CMS to calculate an ACO's shared savings, assign beneficiaries, benchmark, etc. Consequently, CMS has determined that all ACO providers/suppliers associated with each ACO participant TIN must agree to participate in the ACO as a member of that ACO participant. Thus, for example, if a group practice agrees to participate in an ACO, the group practice entity will be designated as an ACO participant and all of the physicians and allied health professionals in the group must agree to participate in that ACO. CMS's "all or none" approach is one reason why physicians and physician group practices may hesitate before agreeing to become either ACO providers/suppliers or ACO participants.

An ACO participant TIN, and its associated physicians "upon which beneficiary assignment is dependent," must be exclusive to one ACO. If beneficiary assignment is not dependent on the ACO participant's TIN, an ACO participant and its associated physicians may participate in multiple ACOs. Thus, the question of how Medicare beneficiaries will be assigned to an ACO becomes a critical step in determining whether a given ACO participant is able to provide services on behalf of multiple ACOs.

The assignment of a Medicare beneficiary to a particular ACO is a two-step process... READ MORE 

Mr. Segal and Mr. Siegel are attorneys at Broad and Cassel in Miami, FL.