February 2, 2016
By Kimberly Busenbark*
If one has been watching the Medicare Shared Savings Program (MSSP) Accountable Care Organizations (ACOs) work to build their compliance programs, the compliance requirements being put in place for the Next Generation (Next Gen) ACO model will not be a surprise. In fact, the five required elements of the Next Gen Compliance Program are nearly identical to those utilized under the MSSP. There are a few areas that anyone working with a Next Gen ACO should be aware of as they transition away from MSSP and toward the new model. Specifically, these include changes to: (1) the governance requirements for the ACO; (2) the marketing material guidance; and (3) available fraud, waste, and abuse waivers.
Changes in Governance Requirements
ACOs operating under the MSSP will recognize the majority of the governance requirements in place for Next Gen ACOs. At least 75% control of the ACO’s governing body must be held by Next Gen Participants, or their designated representatives, and must include a Beneficiary Representative.1 This requirement is the same under the MSSP.2 There is one major difference under Next Gen, which is that the ACO governing body must include at least one person with training or professional experience in advocating for the rights of consumers.3 This person may or may not be the same individual as the Beneficiary Representative. However, this training requirement is new to Next Gen. There is no word from the Centers for Medicare & Medicaid Services (CMS), as of the release of this email alert, as to what type of training might be sufficient to meet this requirement.
Marketing Material Guidance
Under each of the ACO models, CMS requires certain materials to be reviewed and approved prior to distribution or use by the ACO. Under the MSSP, these are called “Marketing Materials and Activities” and include a broad range of Beneficiary and Provider facing materials.4 Within Next Gen, however, these materials are referred to as “Descriptive ACO Materials and Activities” and only include materials used to “educate, solicit, notify or contact Beneficiaries regarding the Next Generation ACO Model.”5 The removal of providers from this definition will make the day-to-day operations of the ACO more efficient while still protecting the interests of CMS in ensuring that Beneficiaries do not receive inaccurate or misleading information regarding the program.
The Next Gen Model also increases the length of time CMS has to review materials once they are submitted. Under MSSP, an ACO could use a material five days after filing as long as the material was not rejected.6 Under Next Gen, this review period has been extended to ten days.7
Fraud, Waste, and Abuse Waiver Changes Under Next Gen
CMS has created four Fraud, Waste, and Abuse Waivers under the Next Gen Model. Notably, unlike MSSP, there is no “ACO Pre-Participation Waiver” under the Next Gen Model (all ACOs selected to participate in Next Gen were already in existence under another model). The other four waivers are largely the same as those found under MSSP. However, in order to utilize the Waiver for Patient Engagement Initiatives under the Next Gen model, the ACO is required to maintain the records for each in-kind item or service provided required by the Participation Agreement in section V.H.2(b). This record must include the following:
- The nature of the in-kind item or service;
- The identity of each Beneficiary that received the in-kind item or service;
- The identity of the individual or entity that furnished the in-kind item or service; and
- The date the in-kind item or service was furnished.
While this creates an additional administrative burden, most ACOs will likely not find it to be insurmountable given the potential benefit of undertaking activities under this waiver.
*We would like to thank Kimberly Busenbark (Wilems Resource Group LLC, Christine, TX) for providing this email alert.
1 Next Generation ACO Model Participation Agreement Section III.B.2.
2 42 CFR Part 425 §425.106.
3 Next Generation ACO Model Participation Agreement Section III.B.2.b.
4 42 CFR Part 425 §425.20.
5 Next Generation ACO Model Participation Agreement Section II.
6 42 CFR Part 425 §425.310(a).
7 Next Generation ACO Model Participation Agreement Section V.E.2.