MedChi, The Maryland State Medical Society
Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program, FTC Matter No: V100017
MedChi, The Maryland State Medical Society, represents the interests of more than 20,000 Maryland licensed physicians. We would like to comment on the Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program as published at Federal Register 21894 (Vol. 76, No. 75, Tuesday, April 19, 2011). We appreciate the effort the involved agencies have made to set forth clear guidance by which health care practitioners, including our members, can assure that in responding to the Center for Medicare and Medicaid Services call for participation in a Shared Savings Program using the Accountable Care Organization model, they do not run afoul of the antitrust rules. That being stated, we would like to make the following suggestions. In reviewing the Proposed Statement we had the benefit of input from the American Medical Association and our comments may therefore parallel theirs to some extent. Need for clear, comparatively inexpensive test to determine if “Safety Zone” applies: First, we agree with the fundamental AMA position that the existence of clear, easy to use guidelines for determining if “safety zones” sufficient to avoid heightened antitrust scrutiny is critical to the success of the ACO project. Health care practitioners will not be able to afford the large outlay of effort and expense if they cannot be reasonably certain the project will not expose them to a significant risk of antitrust litigation. We would recommend that the FTC and DOJ consider the modifications to the “Primary Service Area” test proposed by the AMA in its comments. Starting date: (Proposed Statement at 21895) We believe the guidance of the Proposed Statement should be applicable to entities whenever created, thus, we object to the proposed use of March 23, 2010 as a demarcation date with only entities being created since that time being eligible for safety zone treatment. Treatment of ACOs participating in “Two-sided Savings Program: We also concur with the AMA’s suggestion that ACOs enrolling in the two-sided program, where they will be exposed to potential loss sharing at the onset of the program, should be removed automatically from the possibility of antitrust analysis under the per se rule. Continuation of “Rule of Reason” Treatment Past the Conclusion of Participation in the Three-Year Program: (Proposed Statement at 21896) We believe that the significant investment of time and money necessary to start an ACO constitutes sufficient clinical and financial integration such that “rule of reason” protection should continue even past the conclusion of the program. Given the level of investment necessary for entry into the Program it is both unnecessary and unfair to cease application of rule of reason treatment after three years. Triggering Percentages for Heightened Scrutiny: (Proposed Statement at 21898) We endorse the AMA’s suggestion that the Primary Service Area percentage served that potentially will remove an ACO from the safety zone be raised from 30 to 40% and that even where practices have surpassed that mark, they should continue to be assessed under the rule of reason so long as they face competition from an equivalently sized competitor. In conclusion, we appreciate the efforts of FTC and DOJ, as well as CMS, to make the ACO project successful. We think the suggestions of the AMA, as endorsed above, will increase the probability of success.