Don't Remove Antitrust, Fraud Laws for ACOs, Insurance Industry Warns

In a letter to CMS, America's Health Insurance Plans, the insurers' trade group, is cautioning federal regulators against loosening antitrust and fraud regulations to accommodate accountable care organizations.

The letter is in preparation of an Oct. 5 workshop in Baltimore, where officials from CMS, the Federal Trade Commission and the HHS Office of the Inspector General will ask for feedback from stakeholders on possibly changing federal antitrust laws as well as three federal fraud laws: the self-referral prohibition, anti-kickback and civil monetary penalties laws.

Commenting on the need for antitrust enforcement, AHIP warned ACOs won’t provide benefits to consumers "if they are mere vehicles for price fixing or aggregating market power." Federal agencies "must continue their efforts in this area, using enforcement, guidance and other tools," the letter added.

With regard to fraud laws, AHIP said federal agencies "must continue their longstanding efforts, under these laws, to preserve the professional independence of health care providers and protect patients from improper relationships that may lead to inappropriate treatment or other potential harms."

Here are some highlights of AHIP's recommendations in both areas.

Antitrust Issues
1. ACOs should not be developed "for the primary purpose of joint negotiation or amassing market power to raise prices."
2. Multiple ACOs in one market should be encouraged, possibly through establishing "a minimum efficient scale" for an ACO and limiting ACO participation "to this scale."
3. "A one-size-fits-all approach to structuring ACOs is not likely to result in any long-term success," the letter states. "Models need to vary based on several factors, including provider readiness and the individual needs of communities."
4. ACO arrangements should be allowed to "evolve over time as needs, technology, sites of service, and clinical approaches change and as more is learned about current programs’ effectiveness."
5. In addition to large integrated health systems, models for ACOs could include smaller physician groups, organizations formed in partnership with health plans and alternative approaches that "may be effective when providers are not equipped to assume high levels of risk."

Fraud and Abuse Laws
1. AHIP cautions against making "sweeping changes to the laws intended to protect patients from over- and under-utilization under the federal health programs."
2. Changing current laws runs the risk of allowing hospitals and physicians to promote  "inappropriate and unnecessary treatment" and "under-provision of care" as well as to limit "flexibility in designing treatment options tailored to individual patients."
3. Federal agencies should issue "narrowly tailored guidance, based upon the existing legal framework regarding the types of structural and compensation relationships permitted/allowed in connection with persons receiving bundled payments."
4. Organizations planning ACOs should "take advantage of the regulatory process for seeking new safe harbors to the anti-kickback rule or to seek advance advisory opinions from the OIG."

Read the AHIP letter on ACOs.

Read more coverage of ACOs:

- AHA Shows How 4 Key Federal Enforcement Laws Impair ACOs

- Details on October Meeting About Legal Issues For ACOs Provided by Federal Enforcement Agencies

- ACO Panel to Discuss Competition Issues in Washington, D.C.

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