No takers for expedited ACO reviews

Just two potential Medicare accountable care organizations so far have asked federal officials for expedited antitrust reviews through a special avenue created to make sure antitrust uncertainty didn't create a drag on the government's attempts to get the model off the ground.

Both of those ACOs later withdrew their requests, the Federal Trade Commission and U.S. Justice Department said in a new report on their enforcement guidance. The policy was issued in October 2011 in tandem with final regulations on the healthcare reform law's Medicare shared-savings program for ACOs.

The dearth of interest in the reviews suggests hospitals and doctors have enough general guidance from previous policy statements on clinical integration, said Douglas Ross, an antitrust lawyer with Davis Wright Tremaine. Ross also said many providers consider Medicare approval for an ACO enough to satisfy antitrust regulators' integration requirements.

In the summary of activity for their accountable care working group, the FTC and Justice Department also said 33 questions had been submitted, most of them involving the calculation of market shares in primary service areas.

The CMS has awarded roughly 220 accountable care contracts since April 2012 and is scheduled to expand the program next year. The Center on Medicare and Medicaid Innovation has awarded an additional 32 accountable care contracts, known widely as Pioneer ACOs. The programs allow hospitals and doctors that meet quality and cost-saving targets to share in some savings with Medicare.

Federal antitrust regulators created a safety zone for ACOs with too little market clout to pose a pricing threat. Even those that exceed the safety zone—30% of a defined market, by specialty—may not necessarily violate antitrust laws and the October 2011 policy provided guidance on business strategies for ACOs outside the safety zone to avoid.

The agencies initially proposed mandatory antitrust reviews for organizations controlling more than 50% of any particular service line in their primary service area. That idea was dropped from the final regulations.

The work group said it would continue to publish questions and answers regarding ACOs, which have been largely technical queries to date.