HEALTH CARE Compliance & engagement Solutions

Congratulations, the ink has dried on the Medicare Accountable Care Organization (ACO) Participant Agreements. The ACO participating providers have bought-in to the idea of delivering patient-centered, high quality care while reducing duplicative services and unnecessary spending. It appears that all the pieces of the ACO puzzle are nicely fitting together. Then, the ACO begins operations.  Physician and staff workflows are evaluated, ACO compliance requirements are communicated, quality measure and compliance trainings are conducted, Medicare Annual Wellness Visit initiatives are launched, and so on and so forth.  Before long, participating providers are waving the white flag and shouting “I didn’t sign up for this.”  The shift from fee-for-service to value-based payments is so much more than just a change in mindset, it requires a complete overhaul of the care delivery system. Once ACO providers buy-in to value-based care, what can an ACO do to keep them incentivized and actively engaged in making the operational shift? 

As with all organizations, ACOs have two methods at their disposal to incentivize changes in physician behavior – the carrot and the stick. We all prefer the carrot, but once cash and other items of value start to change hands in health care, some serious concerns from Compliance and Legal surface (and for good reason).  For example, a goal within most ACOs is an increase in Annual Wellness Visit completions. Makes sense. When the ACO starts an incentive program that hands out bonuses to physicians for billing more AWVs, a service already reimbursed by Medicare, life can get tricky (and non-compliant). How can an ACO avoid a sticky incentive situation?

If an ACO wants to reward participants for engagement in activities or initiatives, the ACO Participation Waiver provides a way to do so compliantly. The ACO Participation Waiver waives Stark Law, Federal Anti-Kickback Statute and the Gainsharing Civil Monetary Penalty (CMP). This waiver applies broadly to ACO-related arrangements during the term of the ACO’s participation agreement, so long as all of the requirements are met.  But you should always consider how it will look to CMS if they were to come in for an audit.  In our AWV example, the ACO should consider incentivizing documentation of the quality measures collected during the AWV, rather than the billing of the AWV itself.  Or, including AWV completion rates as part of a larger group of quality related activities being incentivized.  ACOs often avoid the use of cash, but this is not necessary.  The Participation Waiver, unlike the Beneficiary Inducement Waiver, does not restrict the ability of the ACO to use cash or cash equivalents.  As long as the ACO’s Governing Body makes a bona fide determination that the arrangement is reasonably related to the purposes of the program, the ACO can use any incentive – including cash.  The key is documentation, and making sure that your incentive program can be tied to one or all of the following:

  1. Promoting accountability for quality, cost and overall care of Beneficiaries
  2. Managing and Coordinating Care through an ACO
  3. Encouraging investment in infrastructure and redesigned care processes

As ACOs develop a physician engagement strategy they should consider the following: 

  • Create documentation to clearly explain the details and intent of any new program, and get the ACO Governing Body to approve the incentive program.  This can help prevent the appearance of impropriety if there are unintended consequences of the program.
  • Follow ACO Public Disclosure guidance and post the clearly-labeled arrangement on the ACO’s webpage within 60 days of the date of the arrangement.  
  • Be creative in determining what types of items and services would improve the physician’s ability to improve patient care and practice operations.
  • Find an ACO Physician Champion to promote and encourage the other ACO physicians to engage in initiatives.
  • File marketing materials, if necessary, for approval with CMS/CMMI prior to communicating to ACO providers. Additional guidance can be found in the Next Gen ACO Model Participation Agreement Section V.E. or MSSP Final Rule 42 C.F.R. Section 425.310. Plan for the file & use requirement (10-day for Next Gen, 5-day for MSSP) when building communication and outreach timelines.

Is your ACO prepared to launch a program designed to incentivize physicians? Wilems Resource Group can help your ACO develop a compliant Physician Engagement Program. 

Questions or Comments?

Contact Maddie 


Compliance Considerations for ACO Physician incentives

Kimberly Busenbark & Maddie Short, Wilems Resource Group