Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Questions and Answers on Antitrust Safety Zones for Accountable Care Organizations Released, (Apr 10, 2013)

By William Zale, J.D.

The federal antitrust agencies today released questions and answers relating to Accountable Care Organization (ACO) antitrust safety zones and a summary of the activities of the ACO Working Group related to the Medicare Shared Savings Program (MSSP). The summary covers activities since the October 2011 issuance of the FTC/Department of Justice "Final Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program" (Trade Regulation Reporter ¶13,157). Related information is available here.

The Affordable Care Act encourages physicians, hospitals and other health care providers to integrate their health care delivery systems in order to improve the quality and reduce the costs of health care services. Under the Act, ACOs serve fee-for-service beneficiaries through the MSSP. ACO participants receive bonuses when they provide exceptional or low-cost care and are penalized for low-quality or high-cost care. Some ACOs may operate in the commercial market as well as in the Medicare program. The federal antitrust agencies’ guidance is intended to help health care providers form procompetitive ACOs that benefit both Medicare beneficiaries and patients with private health insurance, while protecting health care consumers from higher prices and lower quality.

Primary service area share questions. Under the Policy Statement, an ACO may calculate its primary service area (PSA) shares to determine whether it falls within an antitrust safety zone for certain ACOs that are highly unlikely to raise significant competitive concerns. The Policy Statement also describes certain conduct an ACO may want to avoid if it has high PSA shares or other indicia of market power.

The ACO Working Group has fielded 33 questions related principally to PSA share calculations and two requests for voluntary expedited review. The Working Group has made questions and answers publicly available. The largest category of questions concerned obtaining and using Medicare and other data to calculate PSA shares.

Request for voluntary review. Also under the policy statement, a newly formed ACO may request voluntary expedited antitrust review of its program. Both of the ACOs that sought such review during the time period covered by the summary withdrew their requests.

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