Elizabeth Hogue’s Series on ACOs: Can Post-Acute Providers Participate in ACOs? (Part V)

ACOs seem to be the next “big thing.”  Doctors and hospitals clearly have a role to play in ACOs.  Many post-acute providers, however; including home health agencies, hospices, and HME companies; would like to know if they can also be part of ACOs.  Section 1899(a)(1)(A) of the Affordable Care Act defines ACOs as “groups of providers of services and suppliers” that work together to manage and coordinate care for Medicare fee-for-services beneficiaries.  The statute lists the following groups of providers of services and suppliers that are eligible to participate as an ACO:

  • 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 of the U.S. Department of Health and Human Services (HHS) determines appropriate [Emphasis added].

It is also important for post-acute providers to know that Section 425.20 of final regulations published by the Centers for Medicare and Medicaid Services (CMS), which govern the establishment and operations of ACOs, defines “participant” as:

…an individual or group of ACO provider(s)/supplier(s), that is identified by a Medicare-enrolled TIN, that alone or together with one or more other ACO participants comprise(s) an ACO, and that is included on the list of ACO participants that is required under Section 425.204(c)(5).

The final regulations go on to define ACO providers and suppliers as follows:

ACO provider/supplier means an individual or entity that–

  1. Is a provider (as defined at Section 400.202 of this chapter) or a supplier (as defined at Section 400.202 of this chapter);
  2. Is enrolled in Medicare;
  3. Bills for items and services it furnished to Medicare fee-for-service beneficiaries under a Medicare billing number assigned to the TIN of an ACO participant in accordance with applicable Medicare regulations; and
  4. Is included on the list of ACO providers/suppliers that is required under Section 425.204(c)(5).

The commentary to the final regulations governing ACOs makes it even clearer that post-acute providers can participate in ACOs:

We do not believe that we should be prescriptive in setting any requirements for the number, types and location of providers/suppliers that are included as ACO participants…In addition, any Medicare enrolled entities not specified in the statutory definition of eligible entities in Section 1899(b)(1)(A)-(D) of the Act can participate in the Shared Savings Program as ACO participants by joining an ACO containing one or more of the organizations eligible to form an ACO.

The commentary also states that ACO participants are defined as any Medicare-enrolled provider or supplier, including pharmacists.

Consequently, based upon the statute, the final regulations, and commentary to the final regulations, it is clear that post-acute providers may join doctors to form ACOs.

This material is provided to HCAF by Elizabeth E. Hogue, Esq. Contact by phone at (877) 871-4062, fax at (877) 871-9739 or email at elizabethhogue@elizabethhogue.net.

© 2010 Elizabeth E. Hogue, Esq.  All rights reserved. No portion of these materials may be reproduced in any form without the advance written permission of the author.

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