FLAACOs 2014 Conference - Legal Considerations in Negotiating ACO Contracts Broad and Cassel

FLAACOs Business Partners

Legal Considerations in Negotiating ACO Contracts

Broad and Cassel

Mike Segal

Phone: 305.373.9400Email:

[email protected]


Background

The concept of "ACO's" introduced with the passage of the Affordable Care

Act CMS launches Pioneer ACO program and MSSP Triple Aim: lower costs, higher quality of care for defined population After ACO introduced, commercial payers got into the game


Background

What do the new models look like? Leverage CMS model Shared savings for achieving and meeting cost and quality targets Move to downside risk only if confident cost and quality targets can be

satisfied All models rely on timely, actionable data


Focus of Today's Discussion

Overview of emerging contract models for population health management Trends in data analytics Legal pitfalls with fraud and abuse waivers in commercial setting HIPAA considerations


Refresher on CMS Models

MSSP and Pioneer ACO models Pioneer intended for more advanced ACOs

Both allow an ACO to take risk for defined population MSSP 2 Tracks: upside only or upside and downside Pioneer – 5 choices with opportunity to move to population based payments Fee for service remains intact (unless Pioneer with population based

payment)


Refresher on CMS Models

Other features of programs Alignment – prospective vs retrospective Setting benchmark – look at historical claims Need to meet/exceed the benchmark AND meet minimum risk corridor to

share savings 33 quality measures – taken into account as well Move to downside risk only if confident cost and quality targets can be

satisfied


Commercial Contract Considerations

Payers include insurance companies and large self-funded plans Since many use CMS model as starting point, make sure familiar with it Antitrust considerations (beyond scope of this discussion)



A few key points to consider during negotiations (NOT all-inclusive) Number of covered lives – at least 5,000 Attribution – many use visit based (HMO can use member selection)

Visit based has pros and cons – if measured on quality need to make

sure you know who is in

Self-funded more likely to use PCP selection – ensures you capture

most/all of beneficiaries

True population encompasses everyone, not just sick

More opportunity to forge relationship with PCP and manage health

Payors attempting to forge more narrow networks



Network Development for ACO Need primary care providers – how attribution is done Need high quality lower cost providers

Engage providers in developing commercial contract quality

measures

Ensures meaningful measures and uniformity across contracts

Incorporate as part of clinical protocols

Physician leader at negotiation table



Data Considerations Ability to extract or receive feed to monitor quality is critical Receipt of claims feed from payer to validate targets with your actuary is

important Payer must also provide daily reports (admits, discharges, etc.) to manage

population – ACO needs to include in process

Patient Engagement Component of quality measure Patient portal development Engage caretakers as well in plan of care



Validating Claims Data with your Actuary Evaluate current state of attributed population – 3 years of claims Validate medical cost target Advise re likelihood of success on quality measures – i.e., gateways to get $ Consider stop loss limits, high cost exclusions and amounts? Have static medical cost target vs reset every year to continue savings First dollar shared savings? Cap on savings and losses? Upside only for x years? Right to audit payer calculations of results

Shared Savings Contracts are Path Forward – Not Model of Sustainability


Data Analytics/Population Health Management

Sources: electronic health records, state HIE, disease registries, claims Data vendor to churn claims for predictive modeling? Mechanism to tag high risk/high cost in EHR – vendor or payer? Physician input a must on meaningful dashboards, data, etc. Low risk – forge relationships to manage for long term Data drives action plans (high risk, medium risk, low risk, or other

stratification model chosen)


Fraud and Abuse Waivers

5 Waivers Do not apply in commercial context Waivers do not override state law Shared savings distributions considerations Patient Incentive Considerations


HIPAA Considerations

Disclosures without patient consent for treatment, payment, healthcare

operations Healthcare operations – includes population based activities to

Improve population health

Case management

Care coordination Many ACO activities fall under "healthcare operations"

BUT make sure boundaries are respected

ACO compliance officer is key


Concluding Thoughts

Commercial shared savings and risk contracts are multiplying rapidly across

Florida and the country Plans will push moving rapidly to risk Do not trust plan data – must get it audited Right mix of physicians, with a robust PCP group, essential The next few years will be stressful, but exciting!


Reach UsMike Segal, PartnerBroad and Cassel

Phone: 305.373.9400Email: [email protected] Website: www.broadandcassel.com

FLAACOs 2014 Conference - Legal Considerations in Negotiating ACO Contracts Broad and Cassel

Healthcare

Transcript of FLAACOs 2014 Conference - Legal Considerations in Negotiating ACO Contracts Broad and Cassel