After months of arduous planning, the announcement from the Centers for Medicare and Medicaid Services ("CMS") that your accountable care organization ("ACO") has been accepted to participate in the Medicare Shared Savings Program (the "MSSP") comes as welcome news. Your ACO is ready to go-live and, with a robust compliance plan in place, your ACO can now devote its full time and attention to advancing the "triple aim" of the MSSP. Wait. Not so fast. Your ACO's compliance activities must be ongoing, and if your organization gets caught up in pre-planning fatigue and is content with the mere existence of a compliance plan, noncompliance with the most basic elements of the MSSP may be inevitable. The following are practical considerations for your organization to consider regarding how to avoid ACO compliance missteps, an exercise we commonly refer to as navigating the briar patch.
- Engage a Qualified Compliance Officer. The regulations promulgated by CMS specific to the MSSP (the "ACO Final Rule") require each ACO to designate a compliance officer who reports directly to the governing body of the ACO, and who does not serve as legal counsel to the ACO. It is critical for the compliance officer to have excellent working knowledge of not only the ACO Final Rule, but also the compliance activities of each ACO Participant (as such term is defined in the ACO Final Rule). The compliance officer should solicit periodic compliance reports that detail significant compliance issues from each ACO Participant, and such information should be reported to the ACO's governing body (the "Board").
- Ensure the Compliance Plan is Accurate and Consistent. The ACO Final Rule mandates a few basic compliance plan elements, and in creating a plan, these elements should be viewed as a floor rather than a ceiling. Each ACO's compliance plan should be tailored to the specific dynamics of the ACO, and it is critical for the compliance plan to outline procedures that the ACO and its participants can and will implement.
- Conduct Thorough and Appropriate Compliance Training. The ACO's compliance plan should address compliance training, which should be conducted early and often. In addition to ACO-wide compliance training, the Board should receive specialized training regarding the requirements and use of the various MSSP waivers and the legal thresholds that may protect the governing body's decision making.
- Document the Governing Body's Decision Making. To utilize one of the MSSP waivers, the Board must make a determination that the arrangement is reasonably related to one or more purposes of the MSSP, and therefore advances the triple aim. While the ACO Final Rule does not set a threshold for board decision-making, the Board should act in accordance with the Business Judgment Rule. If a good faith determination is made that the arrangement advances the triple aim, the Board's decision-making needs to be carefully documented, and such documentation needs to be retained for ten (10) years.
- Regularly Update the ACO's Website. The ACO Final Rule mandates that certain information be posted to the ACO's website, and it is critical to update the information on the website as it changes. Pay close attention to timeframes that are specified in the ACO Final Rule and when the Board authorizes the use of one of the MSSP waivers, ensure that sufficient detail about the covered arrangement is posted to the ACO's website within sixty (60) days.
Erin Jochum Roberts is a partner in the firm's Raleigh and Wilmington offices and can be reached at firstname.lastname@example.org for questions.