Beneficiary Assignment Under the MSSP Final Rule

This is the fourth post in Health Care Law Today’s series on the final rule. This post addresses how CMS assigns beneficiaries to an ACO participating in the MSSP.

In the MSSP ACO Final Rule, CMS finalized new regulations that govern the assignment of Medicare fee-for-service beneficiaries to an ACO participating in the MSSP.

Assignment Eligibility

CMS finalized its proposal to codify the criteria that a beneficiary must meet in order to be eligible to be assigned to an ACO. Specifically, if a beneficiary meets all of the following criteria, a beneficiary will be eligible to be assigned to an ACO:

1. Has at least one month of Part A and Part B enrollment and does not have any months of Part A only or Part B only enrollment.
2. Does not have any months of Medicare group (private) health plan.
3. Is not assigned to any other Medicare shared savings initiative.
4. Lives in the US or US territories and possessions.

Defining Primary Care Services

In the proposed rule, CMS attempted to expand the scope of primary care services in order to expand the scope of beneficiaries who receive those primary care services and more accurately assign beneficiaries to those ACO providers who provide primary care services. In the final rule, CMS finalized its proposal to update the definition of “primary care services” to include certain CPT codes associated with transitional care services and critical care management services. Additionally, future revisions to the definition of primary care service codes will be done through the annual Physician Fee Schedule rulemaking process.

ACO Professionals Who Can Provide Primary Care Services

The final rule includes claims for primary care services furnished by nurse practitioners, physician assistants, and nurse specialist under the first step of the assignment process, after having identified beneficiaries who received at least one primary care service by a physician participating in the ACO. In doing so, all primary care services furnished by the entire primary care physician and practitioner team will be considered for purposes of determining whether a beneficiary received the plurality of primary care services under step 1 of the assignment methodology.

CMS also attempts to address concerns of certain specialists who believe they bill for certain evaluation and management services designated as primary care but who do not actually provide primary care services. This affects not only assignment of beneficiaries, but the exclusivity requirements of the MSSP. In the final rule, CMS identifies primary care services more accurately by pairing the CPT codes for primary care services with the specialties of the practitioners that provide them and excludes claims for services provided by certain physician specialties from the beneficiary assignment process. Based on public comment, CMS excludes physician specialties from step 2 that will rarely, if ever, provide primary care to beneficiaries. Such specialties are surgical in nature and include, but are not limited to: general surgery, allergy and immunology, gastroenterology, hospice and palliative medicine, infectious diseases, rheumatology, and interventional cardiology. Services furnished by these physician specialties are also excluded for purposes of determining if a beneficiary has received a primary care service from a physician who is an ACO profession, which is a precondition for assignment to an ACO.

Assignment of Beneficiaries to ACOs that Include FQHCs, RHCs, CAHs, and ETAs

The final rule continues to require FQHCs and RHCs to identify, through an attestation, the physicians that provide direct patient primary care services in their ACO participant FQHCs and RHCs. Previously, the attestation was used both for purposes of determining whether a beneficiary was assignable and also for purposes of assigning a beneficiary. The final rule allows this information to be used only for purposes of determining whether or not a beneficiary is assignable. If the beneficiary is assignable, then claims for primary care services furnished by all ACO professionals submitted by the FQHC or RHC would be used to determine whether the beneficiary received a plurality of primary care services from the ACO.

CMS determined that no changes were necessary to the assignment process for services provided by CAHs. Finally, in the proposed rule, CMS proposed to add ETA hospitals to the list of ACO participants that are eligible to form an ACO to participate in the MSSP.  As a result, services provided by ETA hospitals could be considered primary care services for purposes of assignment. CMS will continue to consider the ETA proposal and will address certain issues related to ETA hospitals in future rulemaking, but has not done so in the final rule.