• Any ACO qualified by CMS for participation in the Medicare Shared Savings Program will be judged under the “rule of reason,” which is a higher threshold for a finding of illegal restraints on trade and should provide more flexibility in devising ACO structures.
  • For ACOs with a combined share of 30 percent or less of a common service in its primary service area, DOJ and FTC will ordinarily not challenge the ACO under antitrust law.
  • For ACOs with a combined share of 50 percent or more of a common service in its primary service area, DOJ or FTC review is required prior to applying to CMS for participation in the Medicare Shared Savings Program.
  • An ACO with a combined share of a common service in its primary service area between 30 percent and 50 percent may, but is not required to, seek DOJ or FTC review prior to applying to CMS.

What does this tell us? Those that think that ACOs are fictional and “off in the distance” are wrong. ACOs are coming and coming fast. Federal regulators are moving quickly to develop regulations that promote making ACOs a reality.

Please contact a member of the Blalock Walters health care practice group if you would like to learn more about ACOs or the health care reform law.

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