Reed Smith LLP
Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program, FTC Matter No: V100017
The Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (the Policy Statement) states that it applies to collaborations among otherwise independent providers and provider groups formed after March 23, 2010 that seek to participate in the Shared Savings Program. The Policy Statement defines an "ACO" to be such a collaboration. The proposed rule issued by the Centers of Medicare & Medicaid Services (CMS) regarding the Shared Savings Program (the Proposed Rule) defines an ACO as a provider of services and suppliers participating in Accountable Care Organizations, without regard to when such an organization was formed. In Section II.I.4 of the Proposed Rule, CMS sets forth the antitrust analysis applicable to ACOs that seek to participate in the Shared Savings Program. The Proposed Statement does not specifically address the applicability of this analysis to organizations that may desire to qualify as ACOs but were formed before March 23, 2010. We recommend that the Proposed Statement be revised to clarify that it applies to entities that qualify as ACOs regardless of when the entities were originally formed.